Land Reference No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION (AT DAR ES SALAAM) LAND REFERENCE NO 25226 OF 2024 (Arising from Taxation Cause No. 32 of 2023) SAIDI KASSIMU KILUKE............................. APPLICANT VERSUS AYOUB ALLY UPUNDA............................................................. RESPONDENT RULING Date of last Order: 25/11/2024 Date of Ruling: 29/11/2024 LALTAIKA, J, This ruling arises from an application for reference filed by the Applicant, challenging the Ruling of the Taxing Master issued on 18 September 2024 in Taxation Cause No. 32 of 2023. The Applicant submitted that the District Land and Housing Tribunal for Mkuranga erroneously proceeded to determine the taxation cause while a notice of appeal, to the Court of Appeal of Tanzania, was pending. The Applicant further alleged that the Tribunal failed to address a preliminary objection raised in his written submissions regarding its jurisdiction. When the application was called for mention on 21/10/2024 both the Applicant and Respondent appeared in person, unrepresented. Parties Page 1 of 8 prayed for hearing by way of written submissions. Accordingly, the following schedule was ordered: Applicant's submission in chief: 4th November 2024, Respondent's reply: 18 Nov. 2024, Applicant's Rejoinder if any: 25th November 2024, Mention for necessary orders to fix the date of Ruling: 25th November 2024. As per the court records, the Appellant obtained legal assistance from unnamed person. The Respondent, on the other hand, enjoyed the legal services of Mr. Fabian Sefu, learned Advocate. I hereby register my commendation to Counsel and the anonymous legal aid providers for spotless compliance with the scheduled order. The next part of this Ruling is a summary of submissions by both parties. The Applicant submitted in his written submission that the taxation cause at issue arose from the judgment of the District Land and Housing Tribunal for Mkuranga delivered on 20 April 2023 in Land Appeal No. 27 of 2021. In that case, the respondent, then the appellant, was awarded costs of the appeal. The Applicant expressed his dissatisfaction with the Tribunal's decision and lodged an appeal with the High Court of Tanzania (Land Division), registered as Misc. Land Appeal No. 39 of 2023. However, he explained that the appeal was decided on Page 2 of 8 17 October 2023 in favour of the respondent, upholding the Tribunal's decision. The Applicant further indicated that he was not satisfied with the High Court's decision, which confirmed the District Land and Housing Tribunal's ruling, including the award of costs. As a result, he filed a notice of appeal to the Court of Appeal of Tanzania, which was still pending. He informed the Court that in his intended appeal, he would challenge the High Court's decision confirming the Tribunal's ruling. The Applicant noted that during the hearing of the taxation cause, which was argued through written submissions, he raised a preliminary objection that the Tribunal lacked jurisdiction to determine the taxation cause due to the pending notice of appeal in the Court of Appeal. However, the learned Chairman of the Tribunal did not determine this objection. He asserted that it was improper for the Tribunal to proceed with determining the application for the bill of costs without issuing a stay of proceedings until the notice of appeal was either withdrawn or deemed to be withdrawn. To support his arguments, the Applicant cited several cases, including Kennedy Bakubela v. Edwin Kajumulo, Civil Reference No. 7 of 2021 (unreported), Noman-Mahboub v. Milcafe Limited, Page 3 of 8 Commercial Case No. 41 of 2003 (unreported) and Maxcom Africa Public Limited & 7 Others v. Stanbic Bank Tanzania Limited, Taxation Reference No. 15 of 2023 (unreported). Based on the above submissions, the Applicant prayed for two specific orders: (a) To set aside the Ruling issued on 18 September 2024 by the Taxing Master in Taxation Cause No. 32 of 2023. (b) To direct the District Land and Housing Tribunal to determine the preliminary objection raised in the submissions concerning the Tribunal's lack of jurisdiction. Mr. Sefu, Counsel for the Respondent, submitted in objection to the application that he had reviewed the Applicant's submission and found that the issues raised were neither true nor legal. He stated that their submission would address the said issues and concluded with a prayer that the application be dismissed with costs for lacking merit and being frivolous and vexatious. Counsel for the Respondent specifically challenged the Applicant's claim that the Honorable Chairman of the DLHT for Mkuranga District failed to determine the preliminary objection raised by the Applicant in his written submission. He asserted that this allegation was untrue and unsupported by the record. Page 4 of 8 He argued that, as a settled principle of law, court records are sacrosanct and trustworthy documents that should not be lightly impeached. Citing the cases of Nestory Ludovick v. Merina Mahundi, PC Civil Appeal No. 96 of 2020 (High Court of Dar es Salaam) and Halfani Sudi v. Abieza Chichi [1998] TLR 527, Mr. Sefu emphasized that there is always a presumption that court records accurately reflect what transpired in a case. He added that allowing frivolous challenges to court records would disrupt the administration of justice and prevent the dispensation of justice. Referring to the case at hand, Counsel pointed out that page 2 of the Ruling from the District Land and Housing Tribunal clearly showed that the preliminary objection was determined and overruled. The reason provided was that the Applicant had not made an application for a stay of proceedings pending the hearing of the appeal at the Court of Appeal. Counsel for the Respondent contended that the Applicant should have applied for a stay of proceedings in the Tribunal for the matter to be determined on its merits, rather than raising the issue in submissions. He argued that raising such an objection without filing a proper application amounted to an abuse of court process, which is unacceptable in our jurisdiction. Since the Tribunal's record clearly showed that the objection Page 5 of 8 was overruled, Counsel reasoned, the Applicant's allegations were frivolous, vexatious, and misleading to the Court. Further, Mr. Sefu argued that the District Land and Housing Tribunal had the requisite jurisdiction to determine the bill of costs. He stated that a pending notice of appeal does not oust the Tribunal's jurisdiction to entertain such applications. To support this, he cited the cases of Mohamed Kanji v. MAC Group Ltd, Reference No. 22 of 2022; KCB Tanzania Limited and KCB Bank Kenya Limited v. Delina General Enterprise Limited, Commercial Reference No. 24 of 2022; and Rose Mkeku (administratrix of the estate of the late Simon Mkeku) v. Parves Shabbirdin, Misc. Land Application Case No. 89 of 2021. In conclusion, Counsel for the Respondent prayed for the application to be dismissed with costs for lack of merit, relying on the explanations and authorities cited in his submission and the Counter-Affidavit filed on behalf of the Respondent. Having dispassionately considered the rival submissions and the record of the Tribunal, I now proceed to determine the matter. The Applicant contends that the Honorable Chairman failed to determine the preliminary objection raised in the submissions. However, the Respondent refuted this allegation, emphasizing that the objection was Page 6 of 8 duly addressed and overruled. Upon reviewing the Tribunal's ruling, it is evident from page 2 of the record that the preliminary objection was considered and dismissed on the basis that the Applicant had not filed an application for a stay of proceedings pending the determination of the appeal before the Court of Appeal. I suspect this is why the legal aid provider refrained from disclosing his identity (whether individual or corporate). It is a well-established principle that court records are sacrosanct and presumed accurate unless impeached with compelling evidence. This principle was underscored in the referenced cases of Nestory Ludovick v. Merina Mahundi, PC Civil Appeal No. 96 of 2020 (HC DSM) and Halfani Sudi v. Abieza Chichi [1998] TLR 527. The Applicant has not provided sufficient grounds to impeach the Tribunal's record. Consequently, I find the Applicant's claim regarding the preliminary objection unsubstantiated. On Jurisdiction of the Tribunal, the Applicant argues that the Tribunal lacked jurisdiction to determine the bill of costs due to the pendency of a notice of appeal before the Court of Appeal. However, the Respondent relied on several authorities, including Mohamed Kanji v. MAC Group Ltd, (supra) and Rose Mkeku v. Parves Shabbirdin Page 7 of 8 (supra) to assert that a pending notice of appeal does not bar the Tribunal from entertaining taxation proceedings. I agree with the Respondent's position. It is settled law that a pending notice of appeal does not oust the jurisdiction of the Tribunal to determine taxation matters. The reasoning is that taxation of a bill of costs does not result in an automatic enforcement of costs but requires a separate execution process, which ensures no miscarriage of justice. In the upshot, the application is hereby dismissed for lack of merit. Costs of this application are awarded to the Respondent. It is so ordered. / E.I. LALTAIKA i j JUDGE 29/10/2024 Court: Ruling delivered in Court Chambers this 29th day of November 2024 in the presence of Mr. Peter Nyange, learned Advocate, holding brief for Mr. Nixon Ludovick, Counsel for the Respondent and the Applicant who has appeared in person, unrepresented. Page 8 of 8