Yusuph Washokera vs Oryx Oil Company Limited (Civil Appeal No. 1495 of 2024) [2025] TZCA 1253 (10 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MOROGORO (CORAM: WAMBALI. J.A.. MAIGE. 3.A. And FELESHI, J.A.^ CIVIL APPEAL NO. 1495 OF 2024 YUSUPH WASHOKERA................................................................APPELLANT VERSUS ORYX OIL COMPANY LIMITED...............................................RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Gonzi, J.) Dated the 5th day of July, 2024 in Commercial Reference No. 1285 of 2024 JUDGMENT OF THE COURT 1st & 10th December, 2025 WAMBALI. J.A.: This appeal arises from the ruling and order of the High Court of Tanzania, Commercial Division at Dar es Salaam (the High Court) delivered on 5th July, 2024 in respect of Commercial Reference No. 1285 of 2024. It is noteworthy that initially, in Taxation Cause No. 81 of 2023, the Taxing Officer had on 18th January, 2024 delivered a ruling in which the appellant was granted a total of TZS 131,385,990.00 as the final taxed bill of costs. The respondent was aggrieved with that decision and hence, she preferred a reference before a judge of the High Court. The respective decision is the subject of the instant appeal.

In the respective reference, the respondent beseeched the High Court to make a finding and an order that, there was reasonable and sufficient cause to sustain an objection for reference and thereby set aside or vacate the decision of the Taxing Officer dated 18th January, 2024 in Taxation Cause No. 81 of 2023. The respondent also outlined several grounds upon which she relied on to upset the decision of the Taxing Officer. It is however noteworthy that the reference was confronted by the preliminary objection on point of law which was lodged by the appellant (respondent by then) regarding the alleged contravention of paragraph 7 (3) and (4) of the Advocates Remuneration Order, GN. 263 of 2015. It was thus prayed that on the strength of the objection, the reference had to be struck out with costs. Nevertheless, as it turned out, it is apparent that the respective preliminary point of objection was not determined by the High Court. On the contrary, the High Court proceeded to determine the reference on merit based on the written submissions of the parties which had been duly filled as ordered. In the end, the reference was partly decided in favour of the respondent and partly dismissed. Particularly, the High Court made the following orders; one, it reduced the amount of costs awarded to the appellant by the Taxing Officer from TZS 2

131.385.990.00 to TZS 65,692,995.00. Two, it disallowed the taxation of costs of TZS 1,000,000.00 awarded to the appellant on the basis of excessive claim principle. Three, considering the two orders stated above, it ruled that the appellant was only entitled to be paid TZS 64.692.995.00 as taxation of costs in respect of Taxation Cause No. 81 of 2023. The decision of the High Court prompted the appellant to lodge the instant appeal through a memorandum of appeal comprising the following grounds of appeal:

1. The tria l court erred in law and fact by not deciding first the prelim inary objection on the point o f law prior to the determination o f the reference.

2. The tria l court contradicted in law and fact by finding that the taxing officer considered many relevant factors but equally she le ft out some very critical relevant factors which ought to have been considered, while the said critical relevant factors were not applicable to the appellant.

3. The tria l court erred in law and fact by reducing the awarded total b ill o f costs into h alf by assuming that the appellant and his co-defendant in the main case and that they fille d jo in t written statem ent o f defence, they had the service o f the same advocate, as such costs were ordinarily and reasonably shared jointly\ while the said holding is contrary to the tria l court record. 3

4. The tria l court erred in iaw and fact by faulting the taxing officer's decision on the wrong assumption that the appellant and his co-defendant were awarded costs after the case against them has been withdrawn with leave to refile and that the case against the duo is s till pending in court, while upon withdraw o f the case against the appellant the same ended there.

5. The tria l court erred in law and fact by faulting the taxing officer's decision for not considering some critical relevant factors like refiling o f the case and the stage at which costs were awarded without a fu ll hearing. It is noteworthy that the appellant and the respondent filed their respective written submissions for and against the appeal. More importantly, at the hearing of the appeal, Mr. Francis Mgare and Mr. Jerry Msamanga, learned advocates who appeared for the appellant and respondent, respectively, entirely adopted the written submissions in support of their respective positions regarding the merit or otherwise of the appeal. Regarding the first ground, it was argued on behalf of the appellant that the High Court judge acted contrary to the established practice and procedure that whenever there is a preliminary objection on point of law, it should be determined first before proceeding to the determination of a substantive suit or appeal. To support the stance, 4

reference was made to Albeila International Limited v. NBC and Two Others (Civil Appeal No. 101 of 2008) [2008] TZCA 21 (2 December 2008, TANZLII). It was thus strongly argued for the appellant that, the High Court judge was legally bound to ensure that he dealt with the point of objection and decided it by making a finding either sustaining or overruling it. In the circumstances, the appellant's counsel implored the Court to allow the first ground of appeal. Responding to the submission of the appellant's counsel on the first ground, the counsel for the respondent readily joined hand with him and conceded that though the parties made arguments in support of their respective positions through written submissions regarding the preliminary objection, the High Court judge did not deliver any decision before he composed the ruling disposing off the reference. It was maintained by the respondent's counsel that the preliminary objection which was premised on a point of law regarding the contravention of the provisions of paragraph 7 (3) and (4) of the Advocates Remuneration Order, had to be decided first as it touched on the competence of the application for reference. In conclusion, the learned counsel argued that the omission was fatal. Ultimately, he supported 5

the appellant's first ground of appeal and urged the Court to direct for the way forward. It is apparent as contended by the counsel for the parties that the record of appeal contains written submissions which were lodged for and against the preliminary objection on the point of law. Nonetheless, there is no indication in the record of appeal that a decision was made by the High Court judge resolving the preliminary objection. It is evident that the High Court judge proceeded to compose a ruling relating to the reference on merit. Besides, gauging from the context of the ruling, there is no indication that it also delt with the decision on the preliminary objection if at all it was intended to resolve both matters at the same occasion. The record of appeal is clear that after the judge had previously adjourned the delivery of the ruling, on 28th June, 2024, parties appeared again before the High Court and notified the judge that they were ready to receive the ruling of both the preliminary objection and the reference. However, as the respective ruling was not completed, the judge directed that the same would be delivered on 5th July, 2024 at 12:00 PM. On that date, it is only the ruling in respect of the reference which was delivered in the presence of the advocate for the respondent and the appellant in person. As the record of the court is

taken to be authentic on what transpired during the proceedings unless the contrary is established, we agree with the counsel for the parties that, the ruling on the preliminary objection was not delivered by the High Court. The omission to determine a preliminary objection before determining the substance of the dispute between the parties is a fatal irregularity. The determination of the preliminary objection is important as the conclusion may sometime end up in disposing of the suit or application on the spot. In Thabit Ramadhan Maziku & Another v. Amina Khamis Tyela & Another (Civil Appeal 98 of 2011) [2011] TZCA 223 (7 December 2011, TANZLII), the Court emphasized that, a court seized with a preliminary objection is first required to determine it before going into the merit or the substance of the suit or application before it. The Court further made reference to the Bank of Tanzania Ltd v. Devran P. Valambia, Civil Application No. 15 of 2002 (unreported), where it was observed that: "7776 aim o f a prelim inary objection is to save the time o f the court and o f parties by not going into the m erits o f the application because there

is a point o f law that w ill dispose o f the m atter sum m arily." In the appeal at hand, we hold that as the preliminary objection concerned the propriety of the reference whose decision is the subject of the instant appeal, it was imperative for the High Court to determine it based on the written submissions of the parties which had been duly filed before it disposed off the merits or otherwise of the reference. In the circumstances, the ruling of the High Court is null and void. We thus allow the first ground of appeal. Having allowed the first ground of appeal which in essence disposes off the entire appeal before the Court, we do not find it necessary to determine the remaining four grounds of appeal. In the event, we allow the appeal. On the other hand, we are aware that the learned advocate for the appellant pressed for costs while that stance was contested by the respondent's counsel. It is as a general rule that, a successful party is entitled to costs unless good cause to the contrary is established. For this stance, see among other decisions of the Court, DB Shapriya & Company Limited v. Regional Manager TANROADS Lindi (Civil Reference No. 1 of 2018) [2018] TZCA 983 (26 September 2018, 8

TANZLII) and Tanzania Fish Processors Limited v. Eusto K. Ntagalinda (MZA. Civil Application No. 6 of 2013) [2017] TZCA 1105 (5 December 2017, TANZLII). However, it is also a position that where the court has a hand in the noted omission which leads to the nullification of the proceedings, the Court may, depending on the circumstances order parties to bear their respective costs. In Abdalah Hassan v. Juma Hamis Sekiboko, Civil Appeal No. 22 of 2007 (unreported), the Court stated that: "... We have paid a serious consideration to the question o f costs. We think that generally, where the court has a hand\ albeit innocently in unwanting conduct o f the proceedings which finally lead to their being quashed, no party should be penalized or allowed to take advantage thereof. What is at hand is an example o f such cases. For the ends o f justice, each party shall bear its own costs." In this regard, we are of the considered view that, the circumstances of the proceedings leading to this appeal fall on the categories of matters in which costs should not be granted for the interest of justice. 9

Consequently, having allowed the appeal on the basis of the first ground, we nullify the ruling and set aside the order of the High Court for being a nullity. In the result, we order that the file in Commercial Reference No. 1285 of 2024 be placed before the High Court for the determination of the preliminary objection based on the written submissions of the parties in accordance with the law. Ultimately, for the interest of justice, we order that each party shall bear its costs. DATED at MOROGORO this 8th day of December, 2025. The Judgment delivered this 10th day of December, 2025 in the presence of Mr. Francis Mgare, learned counsel for the appellant; Mr. Gerald Nangi, learned counsel for the respondent and Ms. Jasmin Kazi, Court Clerk, linked via video conference; is hereby certified as a true copy of the original. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 10