ntwa ambokile mwakasanga vs ambokile ambokile mwakasanga 2022 tzhclandd 12771 15 december 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM REFERENCE NO. 13 OF 2022 (Originating from the decision of Hon. Chugulu, Taxing Master in the Biil of Costs No. 137 of 2020) NTWA AMBOKILE MWAKASANGA APPLICANT VERSUS AMBOKILE AMBOKILE MWAKASANGA RESPONDENT RULING Date of last Order: 12.12.2022 Date of Ruling: 15.12.2022 A.Z.MGEYEKWA. J This is a reference that emerged from a ruling of a Taxing Master, Hon. A.S.Chuguiu. The application was brought under amended chamber summons under Order 7 (1), (2), and (3) of the Advocates Remuneration Order ON.264 of 2015 and section 95 of the Civil Procedure Code Gap.33 [R.E 2019], The appiication is supported by an affidavit deponed by Mr. Ntwa Ambokile Mwakasanga, the applicant The respondent did not file his counter affidavit. When the matter was called for hearing on 24^^ November, 2022 the applicant and respondent appeared in person, unrepresented. However, the respondent did not show appearance. This court issued an order to the parties to argue the appeal by way of written submissions. Pursuant to the Court order the appeal was determined by way of written submission. The applicant conformed to the filing schedule, nothing has been filed by the respondent, to-date, and no word has been heard from him on the reason for the inability to conform to the court schedule. This being the position, the question that follows Is: what is the next course of action? The settled position is that failure to file written submissions, when ordered to do so, constitutes a waiver of the party's right to be heard and prosecute his matter. Where the inability is on the part of the respondent, the consequence Is to order that the matter be heard ex- parte. This position is consistent with the Court of Appeal of Tanzania holding In the case of National Insurance Corporation of (T) Ltd & Another v Shengena Ltd, Civil Application No. 20 of 2007 at DSM (unreported), It was held that: "The applicant did not file submission on the due date as ordered. Naturally, the Court could not be made Impotent by the party's inaction. It had to act ... it is trite law that failure to file submission(s) is tantamount to failure to prosecute one's case." Filing written submissions is tantamount to a hearing and; therefore, failure to file the submission as ordered is equivalent to non- appearance at a hearing or want of prosecution. The attendant consequence of failure to file written submissions are similar to those of failure to appear and prosecute or defend, as the case may be. In consequence of the foregoing, it is ordered that the matters be determined ex-parte, by considering the application based on the submission filed by the applicant. The applicant in his Chamber Summons prayed for the following orders:- That, this Honourable Court be pleased, to disallow all nine claims which were prayed by the applicant in the folio costs and were granted by Taxing Master Hon. Chugulu to the applicant using the wrong principle. Hence this Honourable Court to allow the prayer of the applicant. In his written submission, the applicant contended that it was bad for the Taxing Master to entertain a taxation of the Bill of Costs which was improperly before her. The applicant argued that the Bill of Costs at hand did not comply with the procedure and format of the Application of bills for taxation. To support his submission he referred this Court to Orders 4 and 55 (1)(a), (b), (c), (d,), (e), (2), (3), and (4) of the Advocates Remuneration Order of 2015. The applicant contended that the Taxing Master based his decision on the Bill of Costs which does not show the number of registration and it shows that the applicant is the one who lodged the Bill of Costs, it is not signed and there is no certificate of the applicant's counsel to show that the claims were correct. The applicant valiantly argued that the Taxing Master was not required to consider the Bill of Costs instead she was in a position to strike out or dismiss it. He went on to submit that the Taxing master erred in basing her decision on a case that did not involve the applicant in the Reference and he was never a party. To buttress his contention he referred this Court to the proceeding in Bill of Costs No. 137 of 2020 dated 24^^ November, 2021. The applicant in his written submission went on to argue that the Taxing Master in her Ruling stated that the respondent in his reply stated that Hon. Makani, J is the one who decided the Misc. Application No. 162 of 2020 while the same was decided by Hon, Opiyo, J. The applicant further claimed that the Taxing Master taxed and granted the Bill of Costs which was not proved to the preponderance of probability by the applicant. To support his submission he referred this Court to page 2 of the applicant's submission in chief. The applicant did not end there, he claimed that the claim of instruction fee in the main suit was prematurely raised because Land Case No. 50 of 2020 was pending before the Court. He also argued that the applicant has not proved his prayer of instruction fee if it originated from the original case or preliminary objection. On the strength of the above submission, the applicant urged this Court to grant his application with costs. Having considered the argument for the application, I remain with one central issue for determination, and that is none other than whether or not the present application is meritorious. Reading the records in Bill of Costs No. 137 of 2020, it is evident that the said Bill of Costs was not endorsed with the name and address of the Advocate by whom it is lodged and the name and address of the counsel for who he is agent. This requirement is stated under Order 55 (4)(a), of the Advocates Remuneration Order of 2015. For ease of reference, I reproduce Order 55 (4) of the Advocates Remuneration Order of 2015 hereunder:- "(4) Every bill of costs which shall be lodged for taxation shall be endorsed with the name and address of the advocate by whom it is iodged, and also the name and address of the advocate for whom he is agent" Based on the above provision of the law, I find that the Bill of Costs No. 137 of 2020 was improper before this Court. Under the circumstances, I find the applicant's contention on the first ground meritorious. I will therefore detain myself in evaluating and analyzing the remaining grounds raised by the applicant. In the upshot, the application is allowed and proceed to quash and set aside the Ruling of the Taxing Master in Bill of Costs No. 137 of 2020 without costs. Order accordingly. DATED atJ3i^^^§^aam this 15*^ December, 2022. cQ 2^ o JV A.Z.MGEYEKWA V- JUDGE ★ ★ 2 Ruling delivered on 15^^ December, 2022 in the presence of applicant. o A.Z.MGEYEKWA JUDGE XT* •r 15.12.2022 PAasiOS