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Case Law[2024] TZCA 792Tanzania

Josia Lengoya Sademaki vs Julius Cleopa & Others (Civil Appeal No.74 of 2021) [2024] TZCA 792 (21 August 2024)

Court of Appeal of Tanzania

Judgment

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: NPIKA, J.A.. RUMANYIKA. J.A. And MGEYEKWA. 3.A.1 CIVIL APPEAL NO. 74 OF 2021 JOSIA LENGOYA SADEMAKI......................................... ......... APPELLANT VERSUS JULIUS CLEOPA (Administrator of the Estate of the late CLEOPA KIRIKENGORI)......................1st RESPONDENT CHRISTOPHER KIRIKENGORI (Administrator of the Estate of the late DAUDI KIRIKENGORI) ...................... 2nd RESPONDENT ALFAYO KIRIKENGORI ................... ............................. 3 rd RESPONDENT SAMUEL MEYANI............................................................. 4 th RESPONDENT GODSON MEYANI........................................................... 5™ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Masara. 3 .^ Dated 12th day of April, 2019 in Civil Reference No. 2 of 2019 JUDGMENT OF THE COURT 14th & 21st August, 2024 MGEYEKWA, J.A.: The appellant lodged the instant appeal against a ruling in Civil Reference No. 2 of 2019 by the High Court of Tanzania at Arusha. The High Court struck out the reference after upholding the respondents' preliminary objection on the competence of the reference before the Taxing Officer. It is necessary to set out the essential facts of the case at the beginning. They go thus, the respondents on 22n d September, 2016, filed i

a Taxation Cause No. 85 of 2016 against the appellant claiming for the sum of TZS. 13,595,000.00 being the costs of the suit in Civil Reference No. 04 of 2016. Upon being served with a copy of Taxation Cause No. 85 of 2016, the appellant filed a notice of preliminary objection to which the respondents' counsel conceded but prayed for leave to amend the Bill of Costs presented. On the other hand, the appellant's counsel neither objected to nor supported the respondents' counsel prayer, instead, he implored the Taxing Officer to allow him to reply on the next hearing date. The Taxing Officer proceeded to grant leave for the respondents to amend the pleadings and scheduled a hearing date. Aggrieved, the applicant approached the High Court through Civil Reference No. 2 of 2019 seeking to overturn the decision of the Taxing Officer in the said Taxation Cause No. 85 of 2016. The respondents opposed the reference by filing a counter affidavit along with four points of objection against the competence of the appellant's reference. Having heard the parties' arguments for and against the objections, the High Court held that an order to amend the pleadings cannot be subject to a reference envisaged under Order 7 (1) of Advocates Remuneration Order GN. No. 263 of 2015. On page 131 of the record of appeal, the learned Judge sustained the first objection and struck out the Civil Reference No. 2

2 of 2019 with costs and ordered the matter to proceed on merit before I the Taxing Officer. The decision of the High Court did not please the appellant and thus, on 13th November, 2020, he lodged the present appeal in this Court on five grounds of grievance; namely:

  1. That the High Court o f the United Republic o f Tanzania at Arusha in Civil Reference No. 2 o f 2019 erred in law when it sustained the Preliminary Objection (a) phrased "the Civil Reference No. 2 of 2019 is premature (sic) lodged before this honourable court and it contravening (sic) Order 7(1) of the Advocates Remuneration Order, 2015 as far as an order for amendmentpleading is not a decision o f a court. ”

  2. That the High Court o f the United Republic o f Tanzania at Arusha in Civil Reference No. 2 o f 2019 erred in law when it decided that the decision to amend the pleadings conceded to be incompetent made by the Taxing Master on the &h day o f March, 2019 is not a decision which can be a subject o f reference envisaged under Order 7(1) o f the Advocates Remuneration Order, 2015.

  3. That the High Court o f Tanzania at Arusha in Civil Reference No. 2 o f 2019 erred in law when it decided that the decision made by the Taxing Master on the 6P day o f March , 2019 allowing the amendment o f the pleadings of Taxation Cause No. 85 o f 2016, conceded by the Advocate for the Decree Holders to be incompetent was not a decision (as conclusion) reached after evaluation o f facts and law.

  4. That the High Court o f the United Republic o f Tanzania at Arusha in Civil Reference No. 2 o f 2019 erred in law when it decided that the decision to allow an amendment o f the pleadings conceded to be incompetent by the Advocate for the Decree Holders cannot be subject o f a reference envisaged under Order 7 (1) o f the Advocate Remuneration Order, 2015 unless it can be proved that such an amendment will have an adverse effect to the other party.

  5. That the High Court o f the United Republic o f Tanzania at Arusha in Civil Reference No. 2 o f 2019 erred in law when it used legal concepts from the Civil Procedure Code Cap. 33 R.E 2019 to strike out with costs the High Court o f the United Republic o f Tanzania > in the Arusha District Registry Civil Reference No. 2 o f 2019 filed under order 7(1) o f the Advocate's Remuneration Order, 2015. At the hearing of the appeal, the appellant was represented by D r. Ronilick Mchami, learned counsel while the respondents were represented by M r. Lengai Loitha, also learned counsel. M r. Loitha informed the Court that the second respondent passed away on 13th July, 2020 and following his demise, his son, Christopher Daudi Kirikengori was appointed by the Primary Court of Enaboishu at Arumeru to be the administrator of the deceased's estate. He was appointed on 24th May, 2021 in Probate and Administration Cause No. 14 of 2021. The learned counsel prayed for an order substituting the second respondent with Christopher Daudi Kirikengori in the place of the deceased. The appellant's counsel did not object. Given the circumstances

and based on the letters of administration granted to the second respondent's son, we granted the prayer under Rule 105 (4) of the Tanzania Court of Appeal Rules, 2009 as amended. We thus ordered the substitution of the second respondent with the administrator of the deceased's estate as prayed. Before hearing the appeal, for clarity, we invited M r. Loitha to address the Court on the gist of the preliminary objections, which was lodged on 16th February, 2021. Upon reflection, Mr. Loitha, expressed his intention of abandoning the objections. Therefore, he prayed to withdraw it; his uncontested prayer was granted. In the course of our deliberations, we resolved to address the grounds of appeal conjointly by determining the issue whether the reference before the High Court judge contravened Order 7 (1) of the GN No. 263 of 2015. We think this issue is capable of disposing of the appeal in its entirety. As such, we have no intention of summarizing the entire submissions of the parties, except in so far as the said summary may relate to the framed issue. In his written submission, D r. Mchami faulted the first appellate court for failure to consider that the decision of the Taxing Officer allowing the amendments, was a decision against which a reference could be made

under Order 7 (1) of GN. No. 265 of 2015. He asserted that the High Court wrongly interpreted the said order by stating that the orders of the Taxing Officer subject of the reference are only those which can be proved to have an adverse effect on the adversary side. He submitted at length on the issue of the Taxing Officer's amendment order. He faulted the decision of amending the Bill of Costs. D r. Mchami contended that the said order affected the appellant because he was not given appropriate time to respond to the respondents1prayer. Reinforcing his stance, he referred us to Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 and argued that the Taxing Officer condemned the appellant unheard. The learned counsel for the appellant continued to argue that, as long as the respondents' counsel acknowledged the objection raised by the appellant that the Taxation Cause No. 85 of 2016 was incompetent, then the Taxing Officer was wrong to allow the respondents to amend the Bill of Costs. To buttress his submission, he cited the case of Method Kimomogoro v. Board of Trustees of TANAPA, Civil Application No. 1 of 2005 (unreported). In conclusion, he urged us to quash and set aside the first appellate court's decision and allow the appeal with costs. Mr. Loitha stoutly opposed the appeal and defended the High Court decision as sound and reasoned. In his submission, he was brief and

straight to the point. He argued that the order of the Taxing Officer to amend the Bill of Costs had no decisive impact as the taxation cause which was before the Taxing Officer is still pending before him. Further, he asserted that, there was no any injustice caused against the appellant when the respondents conceded to the objections raised by the appellant's counsel. In conclusion, he urged us to dismiss the appeal with costs. Our starting point is the law governing the lodging of reference which is found under Order 7 (1) of GN. No. 263. For ease of reference, we undertake to reproduce it hereunder. It reads: "Any party aggrieved by a decision of the Taxing Officer, may file reference to a judge o f the High Cc>£//t"[Emphasis added] The question to be addressed from the above provision is whether a party to taxation proceedings can prefer a reference to the High Court judge against any resultant decision. The provision of Order 7 uses the phrase 'a decision'. In legislative drafting, whenever the phrase 'a decision1is used, it refers to a specific type of decision as opposed to when the phrase 'any decision' is used. In other words, the way Order 7 is couched, not every decision or order of the Taxing Officer emanating from the taxation proceedings can be referred to a judge of the High Court.

Now, what type of decision that can be preferred under Order 7 of GN No. 263. We have thoroughly read Part II of the Advocate Renumeration Order and realized that 'a decision' that can be referred to a judge under Order 7 is that one made in the final determination of the application filed under Order 4 of GN No. 263 of 2015. It may be worth mentioning that under Order 9 of GN No. 263 of 2015, there is an exception to the rule where the matter can be referred to the High Court while the application for taxation of the bill of costs is still pending. Order 9 provides "9. Taxing officer may, with the consent o f both parties or on his own m otion refer any matter in dispute arising out of the taxation o f a bill for the opinion of the High Court." [Emphasis added] The above-cited provision allows reference of matters in dispute arising out of the taxation on the bill of costs to the High Court for its opinion. However, the right to make reference to the High Court under Order 9 is limited to the Taxing Officer only. Parties cannot file a reference to the High Court on any matter while the application for taxation of the bill of costs is still pending unless they persuade the Taxing Officer to refer the matter for the opinion of the court. 8

The confronting issue on which the parties locked horns in the present matter, is the interpretation of the word 'decision'. According to the Webster's New Dictionary, 2006 Willey Hoboken, NJ Publishers, Canada on pp. 118, the term "decision" is defined to mean: "The written determination of a court or administrative tribunal disposing o f motions or claims in a case or matter before it " Guided by the above definition, as intimated earlier, the word 'decision' means a claim which was determined to its finality. The determination as to whether the decision or order is final depends on the circumstances of each case. In the present case, before the commencement of the hearing of the Bill of Costs, the Taxing Officer allowed the respondents to amend it. In his judgment, the learned High Court judge at page 129 of the record of appeal held, and we take the liberty to partly quote him: "Most legal dictionaries, online or otherwise , define the term decision as a conclusion reached after an evaluation of facts and law. In the context o f taxation o f the bill o f costs, a decision would necessarily be a determination that has an effect o f affecting the parties either in terms o f quantum awarded or not awarded. The decision to allow amendment o f the pleadings cannot be subject of a reference envisaged under Order 7 9

(1) unless it can be proved that such an amendment will have an adverse effect to the other party. In this case, and based on the items that were to be amended, such effect is not apparent..." We subscribe to the above holding as reflecting a correct position. The appellant's counsel submitted that the decision of the Taxing Officer, the subject of the reference, determined the rights of the parties. This argument is, with respect flawed. We are at one with the learned High Court judge in holding that, it was wrong for the appellant to lodge a reference against an order of the Taxing Officer knowing that there was no any determination that had an effect of affecting the parties' rights in terms of the presented bill of costs. It is common cause that the decision of the Taxing Officer which was not finally determined is an interlocutory one, and correctly so, this means that, the same does not form a decision that can be referred to the High Court by way of reference. This is the effect of Order 7 (1) GN 263 of 2015 referred to above. As such, the Taxing Officer's order for amendment had ostensibly no decisive impact to the parties. Notably, a party can challenge a decision or order of the Taxing Officer, if it i conclusively determines the rights of the parties. Therefore, the High Court judge cannot be faulted. 1 10

In the premises, we are of the considered opinion that in view of the piain meaning of the provisions of Order 7 (1) of the Order, we have referred to, it cannot be safely vouched that the order of the Taxing Officer was a decision worth to be challenged by way of reference within the ambit of the said order. For the foregoing reasons, we hold that the appellant has not substantiated the merits of the appeal which we accordingly dismiss with costs. DATED at ARUSHA this 20th day of August, 2024. G. A. M. NDIKA JUSTICE OF APPEAL S.M. RUMANYIKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 21s t day of August, 2024 in the presence of D r. Ronilick E. K. Mchami, learned counsel for the appellant and M r. Lengai S. Loita, learned counsel for the respondent is hereby certified as a true copy of the original.

Discussion