Mr. Longidareki Ndiki vs Mr Abraham Gerald (Administrator of the Estate of the Late Abraham Ndiki) and Others (Civil Reference No. 11 of 2017) [2018] TZCA 969 (27 December 2018)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT ARUSHA CIVIL REFERENCE NO. 11 OF 2017' ' (C/F High court of Tanzania at Arusha Taxation Cause No. 14 of 2017) MR. LONGIDAREKI NDIKI. .............................................. .- ......... APPLICANT VERSUS MR. ABRAHAM GERALD Administraor of the Estate of the late ABRAHAMAM NDIKl. ............................................ 1 ST RESPONDENT MR. ABRAHAM GERALD ................................................. : ..... 2ND RESPONDENT MS. JUSTINE GERALD ......................................................... 3RD RESPONDENT MR. YUSUFU GERALD ......................................................... .4rH RESPONDENT RULING 16/10/2018,27/12/2018 MWENEMPAZI, J. This is a reference filed by the applicant who was the Respondent in the impugned Taxation Cause No. 14 of 2017 whi.ch was filed by the Respondents herein. The decision in that Taxation cause was made on the 25 th August, 2017 whereby the ruling of the Taxing .'officer allowed a Bill of 1

Cost to the tune of Tshs. 2,361,825/=. The Applicant has filed this reference under Order 7(1) and (2) of the Advocates Remuneration Order, 2015, GN. No. 264 of 2015 seeking the decision of the Taxing officer to be set aside with costs. He also prays for any other order as this Honourable court may deem it fit and equitable to grant. The Respondents being represented by Nelson S. Merinyo, the learned Advocate, have filed a notice of preliminary objectin that the reference is time barred. The same is in breach of Order 7(2) of the Advocates Remuneration Order, 2015. Parties were granted leave to argue the preliminary objection by way of written submission. In support of the objection raised, the counsel for the Respondent has submitted that the applicant filed this reference on 18/09/2017. The same is made under Order 7(1) and (2) of the Advocates Remuneration Order, 2015, GN. No. 264 of 2015. Order 7(2) of the GN. NO. 264/2015 provides that the reference should be instituted by way of chamber summons supported by an affidavit and be filed within 21 days from the date of the decision. The time within which reference is to be instituted is 21 days from the date of the Taxing officer's decision the applicant seeks this court to set aside. The decision was made on 25 th August, 2017. This reference ought to have been filed on or before 14 th September, 2017 instead of 18 th September,2017. The applicant has instituted this reference after the lapse of 21 days required by the provisions of Order 7(2) of the Advocates Remuneration Order, 2015. The same was instituted 24 days after the date 2

of the decision. Therefore, the reference is hopelessly time_: barred. There is no leave of the court to file it out of time. He therefore pr;ays this court to dismiss it with cost. The counsel for the applicant, submits that the reference is within time. He has referred section 19 (6) of the law of limitation Act, cap 89 which provides as follows: "Where the period of limitation prescribed f,or any proceeding expires on a day when the court in which such proceeding is to be instituted is close(£ the proceeding may be instituted on the day on which the court reopens.' The counsel for the applicant has submitted that in computing the period of limitation the time started running fro Monday 28 th of August, 2017 when the court started working. The days, that is 26 th and 27 th of August, 2017 could not be counted. In the case of Selina Chibango vs. F_inehas Chibango, Civil Reference No. 5 of 2008, Court of Appeal of Tanzania at Dar es salaam(unreported) Hon. Kileo J.A (as she then-was) held as follows at page 4: " The decision against which the reference was preferred was given on 1Jh March 2018. Excluding the day of the delivery of the decision as per Rule 6(a) of the Rules, the Seventh day fell on Thursday on 2(/h of March 2018. We have checked the court diary for that day and we have discovered that it was actually Mau/id da½ which was a Public Holiday. This was followed by Good Frida½ Saturday, Sunday and Easter Monday which were all dies non. The next working day was 25h 3

March, 2018 when the reference was filed. By virtue qf Rule 6(b) the reference was not filed out of time. " The counsel for the applicant has thus submitted that the qbjection has no merit. In rejoinder, the counsel for the Respondent has submitted ;'that the referred provision of law, section 19(6) of the Law of Limitation Act, :Cap. 89 excludes : the date of last action, and the case cited does not suppqrt the applicant's . counsel. I have read the application, the submission by th~ parties and the I provisions of law cited. It is clear, that the application for eference was filed I out of time. The provisions of section 19(6) provide for te exclusion of the day for the institution of proceedings not time from which to start counting I days for the purpose of filing a reference. In this case, cpmputation of time ' commences on the date of the decision. The applicant ,cannot escape that ' ' position. That is when his right of action commenced. i ' ' I Order 7(1) and (2) of the Advocates Remuneration Q 1 rder, GN. 263/2015 read as follows: "( 1) Any party aggrieved by a decision of the Ti!xing office,; may file reference to a Judge of the High Court (2) A reference under order (1), shall be instit(!ted by way of chamber summons supported by an affid~vit and be filed within 21 days of from the date of the decision .. i 4 I I ' ' I I I I I : I

• The date of the event is excluded and if the date of last action fallows on ' Saturday, Sunday or public holiday. In my opinion, in this ca_se section 60(1) (c) and (e) of the Interpretation Act, Cap. 1 R.E.2002. is! applicable. The Same reads: - 60 (1) {c) where anything is to be done within a time before a specified day, the tiipe shall not include that day,· {e) where the time limited for ttie doing of a thing I expires or falls upon an excl4Jded day, the thing may be done on the nr=xt day that is not I an excluded day,· I The application for Reference is therefore time,, barred and thus dismissed with cost. JUDGE 27/12/2018 s i