tanzania investment bank vs cipex company limited 2023 tzhc 23222 13 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT DAR ES SALAAM REFERENCE NO 4 NO 2022 (Arising from Taxation cause No 163/2020) TANZANIA INVESTMENT BANK APPLICANT VERSUS CIPEX COMPANY LIMITED RESPONDENT RULING, S.M. MAGHIMBI, J: In his Ruling dated 27/12/2021 which was delivered on the 10/10/2022, this court (Hon. Fovo, DR-Taxing Master) struck out the applicant's Taxation Cause No. 163/2020 for some observed irregularities in the manner in which the Bill of Cost therein was prepared. Aggrieved by the Ruling of the Taxing Master, the applicant has lodged this reference application under the provisions of Order 7(1) and 7(2) of the Advocate Remuneration Order of 2015, G.N. No. 263 of 2015. She is moving this court to issue an order reversing and setting aside the ruling and order of the Taxing Master and award the costs as prayed by the applicant/Decree Holder. On the 12th July, 2023, the respondent/judgment debtor filed a notice of preliminary objection on point of law that the application is premature and incompetent for contravening Order 7(1) and 7(2) of the Advocate Remuneration Order, 2015 G.N. No. 263 of 2015. The objections was disposed by way of written submissions. In this application, the respondent's submissions were drawn and filed by Mr. Elisha Kiula, learned Counsel while the applicant's submissions were drawn and filed by Ms. Lilian Temba, learned Counsel. In his submissions to support the objections, Mr. Kiula submitted that it is obvious in the record of this court that Taxation No. 163 of 2020 in which this reference originate from was struck out for being incompetent and the taxing master did not tax the bill of costs at all. He then argued that since the bill of cost was not taxed and determined by the taxing master, the applicant cannot bring an application for reference at this stage rather, he had option to file a fresh bill of costs subject to law of limitation. That the position has been decided by this court in several cases where the taxing master has not taxed the bill of costs, that one cannot move the court by way of reference as the applicant did. He cited the case of Benjamini Mwakyala Vs Geofrey A. Ndalanda Land Reference No. 06 of 2020, 2 the High Court of Tanzania (District Registry of Mbeya) (Unreported), where the Court at page 4 para 3 had this to say in respect of the reference filed without been taxed off by the taxing master: '"...Nevertheless, since the case was dismissed for want of prosecution, in borrowing a leaf from the provisions of the Civil Procedure code, Cap 33 RE 2019, the applicant ought to have applied for restoration ofthe same as the Taxing master had not decided anything yet in respect of Taxation of costs as per the contextual meaning of Order 7(1) of G.N No. 264/ 2015. Therefore, I sustain the second point of objection." He further cited another case of Salum Suleiman Ally Vs Diamond Trust Bank Tanzania Ltd, Reference No. 7 of 2021 High Court of Tanzania (Commercial Division) at Dar es salaam, where at page 6 para 1 the court put clear that one cannot move the court by reference where the taxing master has never taxed off the bill of cost or acted contrary the taxing principles. He then argued that basing on these decided cases and the cited provision of the law above, this application for reference is prematurely filed and ought to be struck out with costs. In reply, Ms. Temba submitted that the Applicant is praying for this Court to issue an order reversing and setting aside the ruling and order of the Taxing Master dated 10th March, 2022, in Taxation Cause No. 163/2020 3 and awarding costs as prayed by the Applicant (Decree Holder). That this is an omnibus Application having two prayers in one, and upon hearing of this Application, the Applicant will abandon the second prayer on the awarding of costs as prayed by the Applicant. The Application was filed for the Court to revise and set aside the ruling and order dated 10th March 2022 and as such, this Preliminary Objection is raised prematurely. On the substance of the objection, Ms. Temba submitted that Order 7(1) of G.N. No. 263 requires a party who is aggrieved by a decision of the Taxing Officer to file a reference with a trial judge. In this regard, she argued, the Applicant is dissatisfied with the decision that struck out Taxation Cause No. 163/2020 due to the disarray of columns 1 and 2, despite all the taxing principles being observed by the Applicant herein. Ms. Temba submitted that the issue that led to this Application was whether the abnormality goes to the root of the bill of costs, taking into consideration that a successful litigant ought to be fairly reimbursed for the costs he has had to incur. It was therefore her prayer that the preliminary objection be dismissed for lack of basis and being prematurely filed. In rejoinder Mr. Kiula first pointed out that the applicant filed her submission out of time contrary to the order of this honorable court. That the applicant was to file her reply submissions on 4th October 2023 but to the contrary she 4 filed her reply submissions on 9th October 2023 which is five days after the scheduled 4th October 2023 contrary to the order of this honorable court and without any leave to that effect. The effect to her failure was addressed by citing the case of The Concern For Development Initiatives in Africa (For Dia) and Another Vs Ambero Consulting (Gesellschaft) and Another, Civil Application No .18 /01 of 2021, Court of Appeal of Tanzania, Dar es Salaam where at page 6 it was held: "Z would wish to start by stressing two principles, that court orders must be obeyed and that there has to be substantial material placed before the court to allow the grant ofapplication before it." He further cited a case where the same position was stipulated, the case of Ratman vs. Cumarasmy and another (1964) 3 All ER, where the court had this to say: "The rules of court must be obeyed and in order to justify a court in extending the time during some step-in procedure requires to be taken there must be some material upon which the court can exercise its discretion." 5 It was the respondent's view that, since the applicant did not file her submission as per the order of the court, her submission should not be considered due to the fact that she did not comply with the court order. On my part, I need not be detained much by this point on filing of submission outside the time set by the court. As correctly pointed out by Mr. Kiula, the court ordered the applicant to file her reply submissions by 04th October 2023 but the submissions were filed on the 09th of October, 2023 which is outside the prescribed time. Since there is no leave sought by the applicant to file the submission out of time, it means the applicant did not adhere to the court's order. The submissions are therefore struck out from the records. Coming to the substance of the objection in which I will only .consider the respondent's submissions, it is clear from the ruling that the Taxation Cause No. 163/2020 struck out the application for non-compliance of with the laid requirements under Order 55(1) of the G.N. No. 264/2015. The position of the parties after the striking out of the Bill was as if no Bill of Costs was ever tabled in court and the order of the Taxing Master did not preclude the applicant from filing a fresh application on the same Bill of Costs. 6 It is trite law that the principle applicable in other applications and suits on the effect of striking out an application squarely applies in Taxation Causes and the resultant Reference application. Applications which are eligible to be referred for reference from the decision of the Taxing Master are those which finally determine the rights of parties in so far as the bill of costs is concerned. Therefore, even in this application, the principles applicable in a matter that was struck out is the same, the party is not precluded from bringing a fresh application and the matter was not determined on substance. I therefore agree with Mr. Kiula that what the applicant ought to have done under the circumstances was to file a fresh Bill of Costs subject to the limitation of time. This application is hence prematurely filed. From the above findings, I find the objection to be meritious and it is hereby sustained. The application beforehand is prematurely filed and consequently, it is hereby struck out with costs. Dated at Dar es Salaam this 13th day of November, 2023. 7