20210427 TZCA Dar es Salaam

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IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM CIVIL APPEAL NO. 105 OF 2013

BETWEEN VIJAY SHANTILAL CHOHAN .................................... APPELLANT/ J.DEBTOR

VERSUS ABDUL SHAKOOR E. HALDAY ...................... 1st RESPONDENTS/ D. HOLDER jr ILALA MUNICIPAL COUNCIL .... ·..................... 2 nd RESPONDENT /D. HOLDER

RULING Date of the Last Order: 14/03/2018. Date of the Ruling: 11/05/2021. A Bill of Costs and Certificate as to Folios (the Bill) was lodged before ~: this Court on 07/08/2017 following an order of the Court led to a dismissal with costs of Civil Appeal No. 105/2013. The same was filed by Mr. Kinguji A. Ally, learned Advocate for Abdul Shakoor E. Halday, herein also to be referred to as Applicant (1 st Respondent/Decree Holder). It was against Vijay Shantilal Chohan, herein to be . ref-erred to as . the Respondent/Objector (Appellant/Judgment Debtor) who has been represented by RK Rweyongeza & Company Advocates. A total of TShs. 44,335,000/= out of 15 items charged prays.that the same be taxed as presented. ; ! '. 1 I Upon receiving a . Notice of Taxation of the Bill, the Respondent/Objector filed a Notice of Preliminary Points of Objection, comprising one ground: (a) That the Bill of Costs filed by the 1st respondent/Decree Holder is filed in total contravention of item No. 2 (1) of the Third Schedule of th~ TcH1Ldlllc1 Couri. of Appeai Ruie::,, 2009 dnci i::, fi1eci Withuui. leave. For obvious reasons, parties agreed that the prelfminary point of objection be disposed first. It was the Respondent's/Objector's submission who was represented by Ms. Jacqueline Rweyongeza from RK Rweyongeza & Co Advocates that, upon filing the Bill on 07th August, 2017, the Applicant's Counsel

served the Respondent/Objector through his Advocate Mr. Richard Rweyongeza of RK Rweyorigeza & Co. Advocat-es on 11th September, 2017. It was her submission that the Bill was -served on the 33 rd day after being lodged instead of the 7th day, -something which is, according to Ms. Rweyongeza, in contravention with rule 124 (2) read together with paragraph 2 (1) under the Third Schedule to the Tanzania Court of Appeal Rules, 2009 (the Rules). To buttress her argument, she cited the case of Ahmednoor Mohamed Ally versus Chrisostom H. 2 Lugiko, Taxation Cause No. 2 of 2014 (Bampikya, Taxing Officer) which ) I made relied on those two provisions and eventually struck out the said I Taxation Cause for the reason that the Bill was not served to the Respondent. Th~ AgpUcant'C arg~m~nt agait,S'i. lhf: preliminary point ot objection based on the fact that, since the Respondent kept on changing Advocates, it was confusing who to serve. At page 1, the last paragraph of his submission wrote: ''It has to be noted that the Judgment Debtor has been changing Advocates several times and this make the Decree Holder to be in dilemma as to which Advocate among his long list of almost ten Advocates ha had engaged to be served. The Advocates who had been representing the Judgment Debtor in this matter are Mr. Maira (deceased}, followed by Dr. Tenga then Mr. Semgalawe then Mr. Kilindu, then ,

Mr. Rweyongeza then Mr. Jimmy Obeid and Miss Sakina Sinda then back again to Mr. Rweyongeza." ·; 1. I The Applicant went on to submit that, due to the above, they felt it , I i th wise to serve the Respondent/Objector in person on 10 August, 2017 (3 days after lodging the Bill) as he would have known whom to instruct to defend him in these taxation proceedings. The Applicant further submitted 3 that they even took some initiatives to serve Mr. Rweyongeza on 11 th September, 2017 after the Court summons came out . . The Applicant further submitted that the cited case of Ahmednoor Mohamed Ally (supra) is distinguishable as there was nothing served to Applicant as it explained that service can be made either to the Advocate or to the party in person. ·• tt;·,- Eii:•c' i'ffo Applicant also attempted to invite me to see if the alleged delay of service caused any injustice to the Respondent by citing the case of Mrs. Rafikihawa Mohamed Sadiki versus Ahmed Mabrouk, Bi Najma Hassanali Khanji and the Attorney General, consolidated Taxation Reference Nos. 27 and 28 of 2004 (Munuo, J.A.) who ruled out that a 4 months delay of service by the Applicant's Counsel to serve the opponent was a curable irregularity because the said delay did not dissolve the liability to pay the ordered costs. The Applicant lastly prayed that the preliminary point of objection be dismissed and fix a date

for hearing taxation. By a way of a Rejoinder, the Respondent/Objector reiterated what she submitted in chief and added that paragraph 2 (1) under the Third Schedule to the Rules does not direct the Advocate for the Applicant to 4 :-,. -'· ,-','.0~'!!~~=-Er.::._~i~-.:t~~-·,..,_;_ -~.-~ ~· ~ _:_;j_'.:.±:_. ~-~~-·.:__ ~ ~:;,_,._,_,..,·_ _· < .. ~~. . . ,~----;--: . . ~-~-- ·· · · ~ ·,•· ·:c.. · .....~ - - r ,, serve the party in person rather it directs the same, to be served t~ tne Advocate for the party liable to pay. She went further submitted that, since the Advocate for the Applicant knew the Advocate who appeared for the Respondent when the costs were awarded, he was liable and so stands duty bound to serve the application within the confii:1es of the law. Now it is plainly clear that the Bill of Costs was filed on 07th August, 2017. It is also in the record that service of the said Bill was effected in two occasions; first, to the Respondent in person on 10th August, 2017 Iii:;<,· ·IL•'· th and second on 11 September, 2017. This can be seen from a copy of the Bill attached together with the Applicant's Written Submission against the preliminary point of objection. Therefore, the case of Ahmednoor Mohamed Ally (supra) is distinguishable as, unlike in the matter at hand, in that cited case there was nothing served to the Respondent. Paragraph 2 (1) under the

Third Schedule to the Rules provides: "2. Lodging and seJVice of bill of costs (1) Where costs are to be taxed, the advocate for the party to whom the costs were awarded shall lodge his bill with the taxing officer and shall, before or within seven days after lodging it, seJVe a copy of it on the advocate for the party liable to pay it " 5 The Applicant gave explanation why the same was served through the Respondent in person and once again served through his advocate. Assuming there is any delay, something which is not, is that delay fatal? In other words, is there any prejudice caused to the Respondent by being served in person? Looking at the circumstances of this matter and in the tend to agree with the submission by the Counsel for the Applicant and the holding in the cited case of Mrs. Rafikihawa Mohamed Sadiki .:,,- (supra) that, since no injustice was-· occasioned on the•,·part of the q;,- Respondent, the same can be disregarded. In addition to that, not every use of the word shall need to be strictly construed to mean that the provision is mandatory. I found the words in the case of Maneno Mengi Limited and Three Others versus Farida Said Nyamachumbe and the Registrar of Companies [2004] T.L.R. 391, very inspiring, that:- ''(vii) Not -eve,y irregularity or non-compliance with a rule will necessarily render an appeal incompetent simply because the word 'shall' is used

in the rule; irregularities or non- compliance not going to the root or ~ substance of the matter can be overlooked provided there is substantial compliance with 6 ,~, / l ,j ri the rules read as a whole and no prejudice is - occas,oned.... ,, [Bold mine for emphasis]. Admittedly, what before me is not an appeal. However, taxation mGtt"er~ ~J-Y')'J!rl n0t t")P subjected to a strict technical scrutiny. That is where the wisdom in the case of Maneno Mengi (supra) comes in. From its holding, two observations can be drawn; first, there must be a substanaal compliance with tbe rules read as a wt\g.le·and second, there_ , ~-" should be no prejudice occasioned. What amounts to 'a substantial compliance', to the best of my knowledge, has not been defined in the Rules. However, going through the records, the fact that the said Bill of Costs was served through the Respondent in person and later, before the hearing date served .again to the Respondent's Counsel, in my considered opinion, that is 'a substantial compliance' of the requirement that a Bill of Costs should be served to the opponent. There is no any prejudice caused. I therefore find the objection, though it has some substance, but does not go to the root of the matter. This point is therefore overruled on those grounds. 7 In the final analysis, the preliminary point of objection raised t>y the Respondent fails and consequently dismissed. Parties should proceed in arguing the Bill. DATED at DAR ES SALAAM this 27 th day of April, 2021. A.M .,.,M&JJM.l

DR TAXING OFFICER 8