20191100 TZCA Dar es Salaam

1 I I . IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL REFERENCE NO 12 OF 2009 TANZANIA FERTIZERS COMPANY LTD.-------------------~---- APPLICANT VERSUS I RUVUMA EXPORTS {T) COY. LTD.------------------------------ 1st RESPONDENT STANDARD COMMERCIAL TOBACCO SERVICES (T) LTD. (STANCOM) ------------------------------"'- 2 nd RESPONDENT (Reference from the decision of the Taxing Officer of the Court of Appeal of Tanzania) (Maruma, DR - CA) dated the 6 th day of October, 2009 in ! Civil Application No. 45 of 2000 ' j RULING 23 rd Oct. & - Nov. 2019 MWANGESI. J.A.: Civil Application No. 45 of 2000, which was lodged ,in this Court, by the I applicant herein on the 21 st day of June, 2000, was struck out by the Court I nd on the 2 day of May, 2001 with costs. Subsequent thereto, on the 12th day I a,, __. of June, 2002, the second respondent, lodged an hPPliq1tion for taxation of the bill of costs before the Taxing Officer, who happene;!d to be the Deputy Registrar of the Court of Appeal. 1 I 2 cdfafl~ On the date when the said bill of costs, was sehedttted for taxation _, before the Deputy Registrar, the applicant raised a preli,minary objectio~ ' challenging the competency of the alleged application for t,he reason that, it had been lodged outside of the period which was prescribed by the law. It was therefore the argument of the respondent, that the application, was time barred. The said preliminary objection, was rejected by the Deputy Registrar, in a decision which was delivered on the 6th Octpber, 2009, which is the basis of this reference. The reference has been preferred under the q ; .c- provision of rule llJl) and (3) of the then Tanzania Court of Appeal Rules, 1979, now rule 125 (1) and (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules). When the application came for hearing before me, Mr. Rosan Mbwambo, learned counsel, entered appearance to repr~sent the applicant, whereas there was no appearance on the part of the respondents. The Court was informed by Mr. Mbwambo that, the respondents, h'ad been served by way of publication in the daily tabloids of Nipashe and Uhuru, both of the ~ 17th October, 2019 in compliance with the order of this Cou~dated the 4th ~ June, 2019. The copies of the said tabloids were exhibited before the Court, ) ' and marked as exhibits Pl, collectively. 2 3 Given the absence of the respondents, who were duly served as I aforesaid, the learned counsel for the resp~mdents, sought the indulgence of ' the Court, which was granted, to proceed with the hearing of the application I _,,- in their absenc)' in terms of the provision~ of rule 63 (2) of the Rules, as I amended by Government Notices No. 362'of 2017 and No.; 344 of 2019. · To amplify the grounds of the reference, Mr. Mbwambo, submitted that I ! the instant reference, has been made pursuant to the order of the Deputy Registrar, which was made on the 6th October, 2009 following an informal I I application which was presented before her, after being dissatisfied with the 1 decision which was given by the same. He argued ~ ; on behalf of the ~ -- respondent, they are challenging the refusal by the District Registrar, to ~- I I sustain the preliminary objection which they raised, in regard to the I I incompetency of the application for taxation of bill of costs which was before I her. i According to the learned counsel for the applicant, the bill of costs I ' bef~re the Taxing Offi~ was time barre~ because ,its lodgment had I contravened the provisions of paragraph 2 (2) of the Third Schedule to the I Rules. However, the decision which was given by Deputy Registrar, 1 ~ ' ' surprised. Apart from finding merit in the preliminary objection which they f-- 1 3 I . 4 raised, the Deputy Registrar, instead of striking it out, she proceeded to entertain it on account of what she termed, there were sound reasons for the applicant, to fail to lodge it within the period prescribed by the law. In the view of Mr. Mbwambo, such reasoning of Fhe Deputy Registrar, ' was misconceived because what was before her, was a preliminary objection and not an application for extension of time. He argued that, condoning to the delay by the respondents, in lodging the application without there being an application for extension of time, was legally improper. He therefore I I urged me, to reverse the decision of the Deputy Regi~trar, and sustain the ___. preliminary objection which they ~ raised with costs. At issue for me to resolve, is whether the reference which has been preferred on behalf of the respondent is founded. By virtue of paragraph 2 (2) of the Third Schedule to the Rules, a bill of co~ts is supposed to be ! lodged within twenty-one (21) days from the date the order awarding costs is made. In its own words, the provision reads thus: - ''2 (2) A bill of costs shall be lodged as soon as practicable after the making of the order for costs or not later than twenty-one days after I 4 • 5 a request in writing therefore byi the party liable/ or such further time II as the Registrar may allow." )I i My interpretation of the above p~ovision is that, tpe application for bill I I ,,_...,.. of costs has to be made as early as p~ssible but not 1dter than twenty-one ~ J !: I days from the date of the order. There is however, an allowance for the :i I Registrar/Deputy Registrar, to extend time so to do. The same however, can ~ I - only be done by the Registrar, where there has been . . ,m application to that . effect. ;! 1: Ii I' Back to the application under ~iscussion, as it has been indicated i: I above, the order of the Court which ararded costs to fhe respondent, was given on the 02 nd day of May,2001. Nohetheless, the aAplication for taxation ' ! i th of bill of costs, was lodged on the 12 June, 2002, which was after the lapse i[ ! of about 406 days from delivery of thei:order. Undoubte[dly, such period was 11 :' by very far beyond the twenty-one day{s prescribed by the law. As the application before the De!uty Registrar w~s for taxation of the bill of costs, the said application as sub:mitted by the le~rned counsel for the :I iI 1 applicant, was unmaintainable. By Whatever reasoJs that might have 11 occasioned the delay by the responden'.t to lodge its ap ,lication for taxation, 5- ' /. . [6 t ' the proper course to be taken was tcb lodge an appliqation for extension pf ,-;,d I: I , time. In the absence of granted extension of time to\ lodge the application ~ I , I' I for bill of costs, the Deputy Registraq had no jurisdiction to entertain it. To that end, the decision of the Deputy!,Registrar, wasJ,lproper. It is hereby o.,,J ~Js 5-kJ 1 ~ ti¼_ ~SXA/ ~ f ~ · ~ , quashed and set aside,....,with costs to t~e applicant. I ' I Order accordingly. I I I I I i I I I I I ' I I I I I I I 6 !I'I I I I I I I