WAMBURA V MGALA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CIVIL REFERENCE NO. 17921 OF 2024 (Originates from HC Taxation No. 35 of 2023 dated 5th July, 2024) WAMBURA DAUD MABURA........................................................... APPLICANT VERSUS MGALA MANUMBU (As administratrix of the late MANUMBU MALELO)................................................ RESPONDENT RULING 6 & 15/11/2024 ROBERT, J:- The applicant, Wambura Daud Mabura, filed this reference under Order 7(1) of the Advocates Remuneration Order, G.N. No. 264 of 2015, challenging the decision of the Taxing Officer in Taxation Cause No. 35 of 2023. The primary contention is that the taxation was filed and granted prematurely before the final determination of the event in High Court Land Appeal No. 6 of 2023, which was later transferred to the Magistrate's Court with extended jurisdiction and registered as Land Appeal No. 31 of 2023. The appeal was eventually struck out on technical grounds without an order as to costs. The background of this dispute originates from Land Revision No. 3 of 2023, where the High Court gave an order of stay of execution pending the determination of Land Appeal No. 6 of 2023 and ordered that "costs i shall follow the event". Despite this order, the respondent filed Taxation Cause No. 35 of 2023 on 25th July 2023, seeking costs of TZS 3,600,000/- , prior to the conclusion of Land Appeal No. 6 of 2023 (later registered as RM Land Appeal No. 31 of 2023). The applicant contends that the taxation was filed prematurely, as the "event" had not occurred given the appeal's pending status. The primary issue for determination in this reference is whether the Taxing Officer erred in entertaining Taxation Cause No. 35 of 2023 before the determination of the main appeal, and whether the phrase "costs shall follow the event" was correctly interpreted and applied. The applicant, represented by Mr. Arsein Molland, argued that the phrase "costs shall follow the event" necessitates waiting until the final resolution of the main appeal before filing for taxation. He referred to the decision in Jabal Swalehe Koosa & 4 Others v. Registered Trustees of Islamic Solidarity Centre, Civil Reference No. 8 of 2021, where the court clarified that "the event" refers to the ultimate result of all proceedings, meaning costs are awarded to the party who on the whole succeeds in the litigation. Mr. Molland submitted that since Land Appeal No. 6 of 2023 was still pending at the time of filing the taxation, and later struck out without an 2 order as to costs, there was no final determination that could justify the award of costs. On the other hand, Mr. Cosmas Tuthuru, representing the respondent, argued that the phrase "costs to follow the event" should be interpreted to allow costs to be awarded immediately after any decision disposing of a matter, even if it is not the final determination. He also cited the same case of Jabal Swalehe Koosa (supra) to support his interpretation that costs could be awarded following the disposal of any issue or action within the litigation. The core of this dispute lies in the interpretation of the phrase "costs shall follow the event" and the timing of filing for taxation. The principle governing this issue is well-established in Tanzanian jurisprudence. In National Bank of Commerce Ltd v. Lenco (T) Ltd [2003] TLR 280, the court held that a bill of costs must not be filed prematurely before the substantive matter is finally resolved. This principle was reinforced in East African Development Bank v. Blueline Enterprises Ltd [2006] TLR 70, where the court emphasized that taxation should only occur after the final disposal of the case. Filing for taxation before the resolution of the main matter would be considered improper and premature. Applying this principle to the current case, it is evident that the filing of Taxation Cause No. 35 of 2023 occurred prematurely. The High Court's 3 order in Land Revision No. 3 of 2023 specified that "costs shall follow the event," which means that the determination of costs depended on the outcome of Land Appeal No. 6 of 2023. This appeal was struck out on 27th November 2023 without an order for costs, implying that there was no conclusive "event" that could trigger the entitlement to costs. The interpretation of "costs shall follow the event" was clearly articulated in the case of Jabal Swalehe Koosa, where the court noted that the successful party in the overall litigation is the one entitled to costs. In this case, as the appeal was struck out without a decision on the merits and without awarding costs, the respondent did not succeed in a manner that would justify the taxation of costs. Furthermore, in Petersen v. Sunday Post Ltd [1958] EA 424, the phrase was interpreted to mean that costs are awarded based on the final outcome of the case, including appeals and revisions. The absence of a substantive decision in Land Appeal No. 6 of 2023 means there was no definitive "event" to warrant the filing of a bill of costs. In view of the above, it is clear that the Taxing Officer acted prematurely in entertaining the taxation cause before the conclusive determination of Land Appeal No. 6 of 2023. The premature filing contravenes established principles regarding the timing of taxation as set forth in National Bank of Commerce Ltd v. Lenco (T) Ltd (supra) 4 and East African Development Bank v. Blueline Enterprises Ltd (supra). Accordingly, I find merit in the applicant's reference. The proceedings and the ruling in Taxation Cause No. 35 of 2023 are hereby set aside. Each party shall bear its own costs of this reference. It is so ordered. 5