SNOW CREST SCAN

N THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB REGISTRY) AT ARUSHA CIVIL REFERENCE NO. 2 OF 2022 Chsf 4qnA AU 38 of 2021 in the ttrgh Court of the United Republic of T^ruana Arusha Sub Registry Taxation Cause No 7 of 2020 in the Resident Magistrate Court of Arusha at Arusha, Originating front Application for Execution in CM! Cause No >0 of 2017 in the Resident Magistrate Court of Arusha at Arusha) SNOW CREST HOTEL AND WILDLIFE SAFARIS LTD................... APPLICANT VERSUS BONIFACE KAMUGISHA BUBERWA T/A NUTMEG AUCTIONEERS AND PROPERTY MANAGERS CO. LTD............. RESPONDENT RULING 20/11/2024 & 20/12/2024 MWENDA, J Dissatisfied with the decision of the taxing master, the applicant has filed this application seeking this court's pleasure to determine the validity of the ruling delivered by the taxing master on 29th March 2012 and further dismiss or make appropriate orders. This application has been preferred under the provisions of Order 7 (1) and (2) of the advocates Remuneration Order of 2015 G.N No. 263 of 2015 and the same is supported by an affidavit duly sworn by the applicant's Director one Ms. FAIDHA WILLIAM MOLLEL. It is in the i affidavit of the applicant where the applicant stated that the taxing master exercised her judicial powers unjustly for awarding costs to the respondent in excess and oppressively. The respondent on the other hand opposed this application by swearing a counter affidavit in which, he contended that the amount awarded in the said bill of costs was way below the incurred costs. When the matter was called on for hearing, the applicant was represented by advocate LECKTONY L. NGESEYAN. On the other hand, the respondent one Mr. BONIFACE KAMUGISHA BUBERWA fended for himself. With leave of the court this application was disposed by way of written submissions. Submitting in support of the application, the applicant's counsel argued that after the respondent was appointed as a court broker to execute the decree in Civil Case No. 50 of 2017, he attached the properties of the applicant whose valuation was TZS. 102,105,000/= and disposed them. He went on to submit that even after the respondent had disposed the attached properties, he did not pay the decree holder the decreed amount of TZS 150,000,000/= as a result the decree holder instituted a fresh execution process before the Resident Magistrate Court claiming TZS. 150,000,000/= which is still pending, it is the 2 applicant's argument that following the above chain of events, it was irrational for the taxing master to award the respondent TZS 10,566,181.83/= as bill of costs while he did not play his role as a court broker to dispose the attached properties and to pay the decree holder. To support his stance, the learned counsel cited the case of HAIDER BIN MOHAMED ELAMANDRY AND OTHERS VS KHADIJA BINTI ALI (1956) 23 EACA in which the principle to be considered while awarding the costs in a bill of costs was discussed. Sequel to that, the learned counsel faulted the taxing master for acting without jurisdiction as the application before him was time barred contrary to sub rule 27 (4) of the Court Brokers and Process Serves (Appointed, Remuneration and Disciplinary) Rules, 2017. Explaining the above, the learned counsel stated that the last order of the court was issued on 24th February 2020, but the taxation cause was filed on 13th July 2020, 150 days thereafter. Having submitted as such, the learned counsel prayed for this application to be allowed with costs. Replying to the above submission, the respondent submitted that after he was appointed to attach and sell the applicant's properties to satisfy the decree in Civil Case No. 50 of 2017, he attached the applicant's properties on 20th June 2019, and the proclamation of sale was issued 3 on 24th February 2020. He added in that, the attached properties could not be sold instantly due to a series of objections from the applicant. Apparently, he said, they were sold after being kept in the storage facility of the respondent for a long time. The respondent also contended that the attached properties could not be sold out in a single day and as a result they were sold in piecemeal, and the last sale was conducted at the end of June 2020 whereas the bill of costs was presented for filling on 13th July 2020. In support to his argument the respondent cited rule 27(1), (3), 28 (1) and (3) of The Court Brokers and Process Servers (Appointment, Remuneration and Disciplinary) Rules, GN No. 365 of 2017. The respondent further submitted that the taxing master acted judicially and within his powers to tax off some of the costs as she was reasonable and acted according to the law. On the issue that a Taxation Cause was time barred, the respondent strongly opposed it in that the last day of the hearing of Civil Cause No. 50 of 2017 was on the 26th of June 2020 when the last sale report was presented before the order for the court broker to file bill of costs was issued. The respondent went on to state that the bill of costs in Taxation Cause No. 7 of 2020 was presented on 13th July 2020 which is within 30 4 days as prescribed by the law. According to him the date referred to by the applicant as the last day of hearing is a misconception for it does not account for all the events that followed the issuance of the proclamation of sale. To support this argument, the respondent cited the decision of this court in the case of BONIFACE KAMUGISHA BUBERWA T/A NUTMEG AUCTIONEERS & PROPERTY MANAGERS CO. LTD VS SILVER ACADEMY & ANOTHER, Taxation Cause No. 3 of 2023, Labour Division at Arusha where the court defined what is meant by the last day of hearing. The applicant thus prayed this court to dismiss the application with costs. In rejoinder, the applicant reiterated his submission in chief. He maintained that the amount of money claimed and awarded to the respondent was already covered during execution. The learned counsel also stated that the amount awarded to the respondent was high compared to the work done and the value of the attached properties. He urged this court to grant the application. Having heard the submissions for and against the application and after examining the record, this court is called upon to determine the following issues: - 5 1. Whether Taxation Cause No. 7 of 2020 was filed out of time prescribed by the law. 2. Whether the costs awarded by the Taxing Master was reasonable according to the law. Starting with the first issue, the applicant herein complained that the trial court lacked jurisdiction to determine Taxation Cause No. 7 of 2020 as it was filed out of the prescribed time. At the outset, it is apposite to point out that the issue on jurisdiction (and time limitation being one of them) is of utmost importance and it can be raised at any stage even at the appellate stage. As hinted above, the applicant complained that the trial court entertained the matter without jurisdiction as the application before it was time barred. The basis for her argument was that the last order of the court was issued on 24/2/2020 in Proclamation for sale but the taxation Cause No. 7 of 2020 was field on 13/7/2020 after expiration of 150 days. She supported her argument by citing Rule 27 (4) of the Court Brokers and Process Server (Appointed, Remuneration and Disciplinary) Rules, 2017. 6 To resolve this issue, I have decided to delve on the cited legal provision to see if it supports the applicant's concern. For ease of reference, I also found it apposite to reproduce the said law which reads as follows, that: For the purpose of sub-rule (3) the executing officer shall not later than thirty days from the last date of hearing, file a bill of costs with the executing court and serve copies of bill on all the parties and such court shall determine the amount payable after hearing the parties within fourteen day and deliver a ruling thereto." The take from the above is that the cited provision sets the filing time limitation to 30 days after the last date of hearing for executing officer to file an application for bill of costs. By the last date of the hearing, this court in BONIFACE KAMUGISHA BUBERWA T/A NUTMEG AUCTIONEERS & PROPERTY MANAGERS CO. LTD VS SILVER ACADEMY & ANOTHER, (supra), having acknowledged the position in Rule 27 (4) of the Court Brokers and Process Server (Appointed, Remuneration and Disciplinary) Rules, 2017, considered other factors to be part of the last date of the hearing of applications of this nature. 7 In this matter, having revisited the records found nothing in support of the applicant's averment that the said application was filed out of time. This is because, as it was rightly pointed out by the respondent, the last hearing day of application for execution in Civil Case No. 50 of 2017 was on 26th June 2020-As it was well addressed by the respondent, the date referred to by the applicant as the last day of hearing is a misconception for it does not account for all the events that followed the issuance of the proclamation of sale. On that note this court is of the view that when the taxation Cause No. 7 of 2020 was filed on 13th July 2020, 30 days' time limit had not expired. Even if the said 30 days' time limit had expired which is not the case, this court is of the view that the same is curable under the principle of overriding objective. In essence, the said principle stresses the urge for the courts/tribunals to delve on substantive justice and not to be bound by legal technicalities. In this matter I find the applicant would not be prejudiced in anyways. Regarding the second issue as to whether the costs awarded by the Taxing Master was reasonable according to the law, in Taxation Cause No. 7 of 2020 the respondent claimed/applied to be awarded TZS 19,244,681.83 but the taxing master awarded him TZS 10, 566,181 83 8 The learned counsel for the applicant believed that the said amount was too excessive son the ground that the respondent did not play his role as a court broker to dispose the attached property and pay/refund the decree holder (Applicant herein). He stressed that after the attachment and sale of the applicant's properties, he failed to effect payments of TZS 150,000,000/= to the decree holder. To resolve this issue, this court went through the record, and it suffice to say that the amount of costs awarded to the respondent to a tune of TZS 10, 566,181.83 was not excessive. This is because in reaching to the said figure, the taxing master taxed the items presented by the respondent based on the law, proof such as presentation of EFD receipts, valuation report and realities in other items such transportation costs. This is featuring at pages 3 and 4 of the Ruling on Taxation Cause No. 7 of 2020.A mere failure by the respondent to pay the amount of money earned to the decree holder after the sale of the attached properties does not do away the fact that he undertook some tasks in execution process which entitles him to be awarded costs as supported by evidence on the record. On that note I found no reasons to interfere with the order of the taxing master, thus this ground fails. 9 As for the applicant's complaint over TZS 150,000,000/= which she believes it was not refunded after attachment and sale of her properties, this court is of the view that this is not the proper forum to deal with it. This is because the taxing master was only dealing with the costs claimed by the court broker in the cause of executing the decree. This court is of the view that the applicant's claim requires evidence to substantiate or oppose, thus the applicant may, if she still thinks she has a genuine claim, prefer a normal suit against the respondent in court with competent jurisdiction. This ground also fails for being unmerited. In view of the foregoing, I find the application for reference devoid of merit and I accordingly dismiss it with costs. It is so ordered. DATED at ARUSHA this 20th day of December 2024. A.Y. MWENDA JUDGE io