the registered trustees of evangelistic assemblies of god tanzania eagt tarime vs nyambaso wilson mwita and another 2021 tzhc 6505 30 september 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA TAXATION REFERENCE NO. 2 OF 2021 (Arising from Misc. Application No. 194 of2020 at the District Land and Housing Tribunal of Tarime at Tarime) THE REGISTERED TRUSTEES OF EVANGELISTIC ASSEMBLIES OF GOD TANZANIA (EAGT) TARIME................................................. APPLICANT VERSUS NYAMBASO WILSON MWITA.......................................... 1st RESPONDENT PASKARIA NYAMBASO (Eliya) WILSON MWITA.............................................................. 2nd RESPONDENT RULING 1st Sept and 30th Sept, 2021 F.H. MAHIMBALI, J.: The applicant is challenging the decision of the trial tribunal in taxation cause no. 194 of 2020 in which taxed the matter in a manner has aggrieved the applicant in favour of the respondent. Following this dissatisfaction, the applicant by way of reference under rule 7(1) of GN.264 of 2015 of the Advocates Remuneration Order has preferred this application by way of chamber summons supported by the affidavit of i Shadrack Chacha Mahiri - Principal Pastor praying for an order of this court to quash the proceedings of the District Land and Housing Tribunal of Tarime and its decision thereof in respect of its taxation order in Misc Land Application no. 194 of 2020. During the hearing of the appeal, Mr. Makowe learned counsel represented the applicant whereas the respondent fended for himself. In his submission Mr. Makowe submitted that this application is made under order 7 (1) of the Advocates Remuneration order, 2015 by way of chamber summons supported with the affidavit of the Applicant. He prayed that the same be adopted by the Court to form part of the applicant's submission. Furthermore, while arguing his application he centered his arguments in paragraph 7, 8, 10, 12, and 13 of the applicant's affidavit. Briefly his complaint is on what had been done by DLHT. Under page 8, as the last day of filing written submission fell on public holiday (Eid day) thus, the next working day when the applicant went to file his submission, the same was denied its admission/filing. This was very surprising to the applicant. In the circumstances, it was expected that the Respondent should have also raised it as a concern. He muted. As order 7 (1) is silent on what to do, he had to go by what is known as best practice. As the applicant (respondent by then) had been accepted filing of his submission on the next working day, 2 constructively, he was denied right to be heard, he thus called upon this Court to scrutinize the DLHT's record. It will be clear that the last filing date was on 2nd April, 2021 which unfortunately fell to be public holiday. As the applicant was denied filing on the next working day, he was prejudiced. On that prejudice, he is praying that under order 8 and 9 of GN 264 of 2015 the proceedings of the trial tribunal be set aside and that it be ordered that the same is re heard. His second argument is on the manner the remuneration charges were done. He finds the same being so unrealistic especially on items no 3 and 4 of the bill of costs. Item no 3 stipulates costs for mention, hearing and ruling. It is not clear the charges for mention of the case is for how many days. Likewise, it is not clear the charges for hearing and ruling was scheduled for how many days. As all these have been compounded and get a total of 15 days, he wonders whether this was a proper procedure as per law. With item no 4 talks about tea. The same is replica to what is stipulated under item no 3. However, there are no any accompanying receipts for that. This is contrary to order 58 of the advocates Remuneration order GN 264 of 2015. He further argued that under item no 4 as the drawer of the item is based at Tarime, he wondered how the 3 respondent's counsel who is based in Tarime had to get food at hotel for a mere attending of the case. He thus wondered if this cost is justifiable as per law and in the circumstances of this case. Lastly, under item no 9 there are costs for attending Ward Tribunal. There are no accompanying receipts for the same. He thus humbly called upon this Honourable Court to scrutinize it properly and rule accordingly. He concluded his submission by praying that this application be allowed as prayed. Replying, the respondent resisted the application by first praying that this court to adopt the respondent's counter affidavit dully filed. In addition, he argued that it is true that the applicant had to file his submission by 2nd April 2021. As it was Public Holiday, he ought to have filed it prior to the public Holiday. As he had all these days, he had himself to blame for this. In respect of costs, all has been claimed in bill of costs are costs for the respondents and not necessarily covering advocate's costs In item no. 4 regarding costs for food, he submitted that those costs cover for respondents' survival at Tarime during the conduct of 4 this matter. The said food costs cover 1000/= for bodaboda, 4000/= for food and 1000 for water. Thus per day it was 6000/= X2 (people) X 15 appearance. Regarding costs in item no 5, he submitted that they had paid for copies of judgment. The argument that there is Chief Justice's directives on non - payment of judgment copies, he wondered if those directives extend up to the DLHTs and Ward Tribunals. He concluded by submitting that those costs at Ward Tribunal cover for all the respondents' bills (applicants by then). They are not irrelevant as submitted by the respondent in this application. He thus prayed that the reference application be dismissed with costs. In his rejoinder submission, Mr. Makowe reiterated what he had earlier submitted. However, he submitted that as per respondents' reply to the application, it is uncontested that on the 2nd day of April 2021, was a public Holiday. The argument that it was not Eid day but Passover saves nothing useful as it is just a minor slip. So long as it was a public holiday, the applicant was justified to file it on the next working day. As regards costs at Ward Tribunal, he wondered if the same was rightly taxed because DLHT is not a taxing court for Ward Tribunal. If so whether there was within 60 days' time limit. Otherwise he reiterated the fact that the claims ought to have been dully receipted as per order 5 58 of GN 264 of 2015 and that the DLHT had taxed without being supplied with relevant receipts. It is his humble submission that this application be allowed with costs. Lastly, he submitted the Ward Tribunal didn't award costs of the case. Having heard the submissions of both parties, I am now called upon to make a finding whether the application is meritorious. In digest to the submission of Mr. Makowe, learned counsel for the applicant and the respondents' joint affidavit, it is undisputed that the last scheduled filing day of the written submissions in opposition of the bill of costs was the 2nd day of April, 2021 which fortunately fell to be Good Friday. I have also perused the DLHT's records 12th April 2021, I better reproduce the same for the better understanding of the matter. "Ngukuiike N.O....................MWENYEKITI 1 Hayupo 2 yupo........... Mleta maombai Yupo................................Mjibu Maombi Anold K...........................................Cc Mieta maombi na mjibu maombi wote wapo. Sgd: Mwenyekiti 12.04.2021 Mjibu maombi: Niiipangiwa kuieta majibu tarehe 02/04/2021, niiikuta pamefungwa kwa kuwa iiikuwa pasaka, 6 Jumatatu pia ilikuwa Jumatatu ya pasaka. Jumanne nilikuja karani siku mkuta, Jumatano ilikuwa siku ya Karume niiipo kuja Aihamisi niambiwa nilete ieo. Sgd: Mwenyekiti 12.04.2021 Mleta maombi wa pili: Amecheiewa kuleta majibu na muda umeisha, tuendelee na hatua inayofuata. Sgd: Mwenyekiti 12/04/2021 Mleta maombi wa kwanza: Naona mjibu maombi anatupotezea muda, sababu yeye mwenyewe ndio aiiomba kusikilizwa kwa njia ya maandishi tunaomba tuendeiee na hatua inayofuata." As he was denied filing it on the next working day after the Easter Monday, the DLHT was not legally justified. The law is clear that if last filing day appears to be a public holiday or not working day, the filing of it is done on the next working day. In that position the DLHT erred in law rejecting admission/reception of the written submissions by the applicant (respondent at the trial tribunal). Therefore, proceeding with the hearing exparte, prejudiced the applicant. 7 All said and done, the application is meritorious, the same is hereby allowed. The exparte order and the subsequent proceedings and its ruling and orders thereof are quashed and set aside. The matter to proceed from there it ended prior to the exparte order and hearing exparte. In that vein, the parties are hereby ordered to submit themselves before the DLHT on 15th October, 2021 for appropriate orders on the proper way forward of the matter either to proceed orally or with written submission as earlier ordered. DATED at MUSOMA this 30'“ day of September, 2021. F. H. Mahimbali JUDGE 30/09/2021 Court: Ruling delivered this 30th day of September, 2021 in presence of Makowe, Advocate for the Applicant and 2nd respondent. Miss. Neema P. Likuga - RMA. Right of appeal is explained. F. H. Mahimbali JUDGE 30/09/2021 8