20160422 TZHC Mwanza

IN THIE HIGH COURT OF TANZANIA ATMWANZA MISC. CIVIL APPLICATION NUMBER 81 OF 2014 (From The Decissin Of The He Of Tanzania At Mwanza In Land Appeal Number 49 Of 2011) MWEVI RAMADHANI MWEVl ·••n••······APPLICANT VERSUS VICTORIA SACCOS .................. RESPONDENT JUDGMENT.· 08~03.2016 & 22.04.2016 S.. B.M.G. Mat:upa J. Mr Mrangu DR (as he then was) disallowed a bill of costs which was filed by the appellants for the reason that, it was . defeated by the St9tute of limitation. The appellant has moved . this Court in an application under rule 5 (1) {2) of the Advocates Remuneration and Taxation of costs Rules GN 515 . . OF 1991 to quash the decision of the learned Registrar on the grounds and reasons that are contained in the affidavit. Pa_ragraph 7 of Mwevi Ramadhani Mwevi avers as follows · 1 '· "That after consultation with my advocate I because aware that the taxing master erred in dismissing my bill of costs since according to law, he ought .to have excluded in . computing the time of limitation the days which the matter was.in the District Land and Housing Tribunal" Mr -Makwega who represented the applicant referred this court to the provisions of section 21(2) of the law. of Limitation Act which provides as follows "{2} In computing the period of limitation prescribed for application, ·the time during which the applicant has been prosecuting with due diligence another civil proceedings whether in a court of first instance or on a court of Appeal, against the same party, for the same relief, shall be excluded, whether the proceeding is founded on the same cause of action and is prosecuted in good faith in a . court which, from defect of jurisdiction or other cause of the like nature. {3} For the purposes of this section- {a} A plaintiff or applicant resisting an appeal shall be · -deemed to be prosecuting a proceeding {b} References to a -plaintift defendant or other party to a proceeding include reference to any person through or under whom such plai,,tiff defendant or party claims. 2 {c} Misjoinder of parties or causes of action shall be deemed to be a cause of a like nature with the defective ofjurisdiction" It was- submitted by Mr Makwega therefore that since the appellant first filed the Bill- of Costs at the DLHT, he wa covered by section 21 (2). He therefore pressed this court to hold that all that time the bill of costs r~mained at the Tribunal ought to be excluded in terms of the foregoing section 21(2) of the law of limitation act. When he was asked if the conduct of the case at the tribunar was diligent, he answered in the affirmative, suggesting that since the application to the tribunal was done in. time, he was therefore diligent. He lamented that there was . un-clarity in the law as regards the definition of the term Taxing officer; hence, any person would be confused as to who the taxing officer is, and could easily get lost. In rebuttal, Mr _Mhingo submitted· that the applicant has . admitted that he made a mistake in filing this application· before the Tribunal; He cannot claim to .have been dili_gent. I • . Again, it was the contention of Mr ·Mhingo that since the 3 . ,_' applicant concedes that the application has been filed after the lapse of time; the appropriate recourse would be to seek extension of time. I invited both parties to address me the difference between sections 14(1) and 21(2). I was not satisfactorily assisted. I have. given consideration to the submissions of the respective counsel for the parties. The issue is whether the appellant can legitimately avail himself of the relief under section 21(2) of the Law of Limitation Act. In order to avail himself the relief under that section, the appellant was enjoined to demonstrate that he was diligent. In the present case the appellant spent his time before the Chairperson of the DLHT. believing the officer was a taxing officer and that there was lack of clarity as to the definition of a taxing master. Diligence would direct seeking· of the definition of a taxing master from the Advocates Act and the . . Advocates' Remuneration and Taxation Rules;· Under section 2 4 of the former, a taxing officer is defined as a taxing officer of D the High court. According to the latter, a taxing officer is defined under rule 3 as follows. "The taxing officer for taxation of bills under these rules shall be the Registrar, a District or Deputy Registrar of the High court or any officer of the Court as the ChiefJustice may appoint.,, Mr Makwega's contention that the law is not clear on this matter only serves to demonstrate that he did not read the law. Before this cou_rt,. I · was not persuaded on the lack of · clarity that is claimed by the learned advocate. It follows therefore when counsel went to the DLHT, unless he was convinced beforehand that the DLHT chairman was an officer · who was so appointed, he cannot claim to have acted with diligence. 1 Again, the learned counsel s claim that. ~he proceedings he was· pursuing before the DLHT availed him an exception under section 21(2) is wanting in correctness. Before this- court he conceded that the proceedings before the Tribunal were the same as those he was pursuing before· the Registrar. The . . provisions of section 21(2) qualifies the proceedings in that at 5 "the time during which the applicant has been prosecuting with due diligence another civil proceedings whether in a court of first instance or on a court of Appeal against the same party, for the same relief, shall_ be excluded'~ In this case the learned advocate candidly admitted that before the DLHT there was the same proceedings as those . before the District Registrar. He cou1d not reply otherwise. The very basis of his application was that, he only went to the Registrar after he was advised .by the Chairperson of the Tribunal. The tribunal did not venture to address the matter in terms of jurisdiction or otherwise. It was therefore the same matter that was pending before the tribunal that was brought to the Registrar, This not being a different matter, it does not therefore qualify under sect~on 21 aforesaid. The time that _was spent at the tribunal was therefore a waste; it was not reckonable for exclusion under section 21. · Before this court I asked parties if the provisions of . section 14 of the Law of Limitation Act would make any·. 6 Q difference. They concurred that it would not. They were ;]} wrong again. In the result, the decision of .the Registrar was correct. The recourse of the applicant lies under section 14 and not under section 21 as he is persisting. This application is therefore dismissed with costs. -~~~ S.B.M.-G<MA TUPA JUDGE 7