IN THE HIGH COURT OF TANZANIA

(LABOUR DIVISION)

AT MWANZA
CIVIL REFERENCE No. 11 OF 2020

(Original BILL OF COSTS No. 37 OF 2019)

DOMINIC ISHENGOMA..........................................................APPLICANT

VERSUS
MANAGING DIRECTOR GEITA GOLD MINING......... ............. RESPONDENT

1st & 23rd July, 2021.

TIGANGA, J.

This application has been

made under Order 7(1) and (2) of the Advocates Remunerations Order,

2015 seeking the following orders;

1. That this Hon. Court be pleased to quash and set aside the ruling

of the Taxing Master dated 14/09/2020 in Bill of Costs No. 37 of

2019 for being premature and incompetent.

2. In the alternative to order No. 1 above, the Court be pleased to

vary the Ruling of the Taxing Master dated 14/09/2020 in Bill of

Costs No. 37 of 2019

3. Any other relief be granted as the Court deems fit.

The main grounds for this application are as follows;

 (a) The taxing master and the High court have no jurisdiction to

deal with the Bill of Costs in the Matter because there is a

notice of appeal to the Court of Appeal and leave of appeal

has been obtained, against the ruling of the High Court

(Hon. Siyani, J) dated 27/06/2019 in Misc. Civil Application

No.39 of 2019.

(b) The complained ruling of the Taxing Master is tainted with

several errors which have occasioned injustice to the

applicant as per annexed affidavit.

The application was supported by the affidavit which was sworn

and filed by the applicant. In that affidavit it was deposed that the Bill of

costs subject of this reference originates from HC Misc. Civil Application

No. 39 of 2019 which was filed on 15/03/2019 by the applicant against

the respondent. That application was however struck out with costs

following the High Court sustaining the preliminary objection raised by

the respondent.

The order aggrieved the applicant; on 10/07/2019 he lodged a

Notice of Appeal against the said ruling to the Court of Appeal of

Tanzania. During the pendence of the Notice of Appeal the respondent

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filed Taxation Proceedings or Bill of Costs No. 37 of 2019 arising from

the ruling HC Misc. Civil Application No. 39 of 2019.

He said after being served with the Bill of Cost, he filed a reply in which

he informed the Taxing Master that he had already filed the Notice of

Appeal to challenge the ruling in which the order for costs was granted.

Secondly that the Bill of cost was inflated as far as items 1 and 3 were

concerned.

Despite that reply, the Bill of Costs was scheduled for hearing on

17/09/2020 however on that date, when he and his Advocate attended

in court for hearing of the Bill of costs only to be informed by the clerk

that the matter had already been decided on 14/09/2020. On further

inquiry they were supplied with a copy of ruling in the matter and on its

thorough reading they noted that it contained the following errors

(i) That the taxing Master erred in law when he dealt

with the matter and determined the same in his

absence and without his knowledge

(ii) The Taxing Master erred in law when he omitted to

consider and determine the grounds of objection in

his written reply.

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 (iii) The Taxing Master erred in law when he omitted to

strike out the taxation of Bill of costs for being

premature and incompetent

(iv) That the taxed amount is highly excessive.

That on 02/03/2020 his application for leave to appeal was

granted by Hon. Mgeyekwa, J and thereafter he orally informed the

taxing master of this fact and that he is now in the final process of

preparing the record of Appeal.

The application was opposed by the respondent who through

Marina Mashimba filed the counter affidavit. She disputed the allegation

of the date on which the application was called for hearing, she said it

was called for hearing on 29/07/2020 and the applicant was represented

by his counsel Ms Lilian Lyimo where the counsel were given opportunity

to address the Taxing Master on whether at the hearing of the Bill of

Costs there was a notice of appeal pending before the Court of Appeal

and after hearing the submission from the parties the taxing master

reserved the ruling on 18/08/2020 when the ruling was delivered in the

presence of counsel for both parties to the effect that in the absence of

order staying the execution the court cannot stop the bill of costs.
Following such ruling the hearing of the matter was fixed on

08/09/2020.

When the matter was called for hearing, the applicant and his

advocate were absent while the respondent was represented by Mr.

Silwani Galati Mwantembe, Advocate. He prayed to proceed exparte the

order which was granted and the hearing proceeded exparte a ruling of

which was delivered on 14/09/2020 in the presence of the applicant and

his counsel.

Further to that, she deposed that the exparte hearing order was

rightly entered after the applicant and his counsel failed to appear on

the hearing date. And that the ground of objection raised were heard

and determined in a ruling delivered on 18/08/2020 in the presence of

the counsel for the applicant. That the Taxing master was right when he

overruled the objection on the ground that, there was no stay of

execution of the order impugned and that he reasonably took into

account the nature of the application. He deposed further that the

applicant has not given concrete reason for the ruling to be set aside.

With the leave of the court, the application was heard by way of written

submissions. In the submission in chief, the applicant pointed out the

introduction, the background of the matter, and the merits of the

application most of which are the repetition of the affidavit and which

have already formed part of this ruling therefore, I will, for purposes of

brevity not reiterate what has already been part of this ruling but new

issues said for clarification and the laws and case authorities relied upon.

Regarding the first ground of complaint he submitted that the applicant

proved that the taxing master erroneously denied him the right to be

heard. He said submitted that even the respondent in paragraph 2, 3, 4,

and 5 admitted that all what happened transpired exparte thereby

denying him the right to be heard.

Regarding the second complaint, he submitted that the allegation

by the applicant that that the preliminary objection was dealt with has

not been supported by a copy, in his view lack of copy means the same

were not effectively dealt with.

Regarding the third ground, he submitted that the presence of the

Notice of appeal and the leave to appeal to the Court of Appeal, acted

as a bar for the hearing and determination of the Bill of costs therefore,

the application was prematurely determined. Furthermore, one of the

grounds of appeal is challenging the award of cost in labour cases. He

submitted that after being informed of the presence of the appeal

process starting with the Notice and leave to appeal, the taxing master

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was supposed to hold that the application was incompetent or

alternatively, to stay the proceedings as it is against the interest of

justice for the proceedings of this court to run concurrently with the

proceedings in the Court of Appeal. He cited the case of Arcado

Ntagazwa vs Buyogera Julius Bunyango [1997] TLR 242 in which it

was held that, once a notice of appeal has been lodged to appeal to the

Court of Appeal, then the High Court proceedings must be stayed until

the notice is withdrawn or is deemed to be withdrawn.

He also cited the case of Ahmed Mbaraka vs Mwananchi

Engineering and Contracting Co. Ltd, Civil Application No. 229 of

2014. In which it was said that once there is an appeal or its process

has already commenced, then, the officer issuing execution should stop

till the appeal is ready.

Further to that, he said the taxed amount is highly excessive. He

submitted that instruction fees should not be only tagged, it must be

proved he relied on the authority in D'Souza vs Farao & Others

(1960) E.A 602 and Order 12(1) of the Advocate Remuneration Order,

2015, that, although the taxing master has discretion to tax the invoice

then the discretion must be exercised in the limit of the law, especially

on the amount prescribed by law. He submitted that the amount taxed

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is very high. He submitted that the application be allowed and since it is

a labour matter costs should be dispensed with.

In the reply filed by the respondent, while submitting on the

merits Ms Marina Mashimba submitted by inviting the court to go

through the record of the Bill of costs where it will be found that it is not

true that the Bill of Cost was dealt with and determined without the

knowledge of the applicant, but the applicant and his counsel were

absent on the hearing date which they knew, and they did so without

notice.

She listed the appearance records as reflected from 30/06/2020

when the matter was called up to the date of the hearing on 18/08/2020

when the matter was reserved for ruling and invited this court to pass

through and satisfy itself that the hearing was not a surprise or an

ambush. She reminded the court that, the objection raised by the

applicant were dealt with and determined by the taxing master and the

ruling was delivered on 18/08/2020 in the presence of the counsel for

both parties in which the objection were overruled and fixed the bill for

taxation on 08/09/2020. According to her, this is to say that, the

objection was determined on its merit and overruled.

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 On the third alleged error that the taxation was premature and

incompetent, she contended that, the taxing master was right when he

held that a mere lodging of the notice of appeal by the applicant is not a

bar to the hearing of the application for Bill of costs. He cited the

decision of the case of CRDB Bank Pic vs Finn W.Peterson, Civil

Application No. 367IY7 of 2017, Court of Appeal, at Dar Es Salaam

(Unreported) in which the court of Appeal made it clear that that unless

stay of execution is sought and granted by the court execution at the

High Court will proceed. The Taxing Master applied this principle in the

taxation of costs as there was no order staying execution of the High

Court's decision in Misc. Civil Application No.39 of 2019.

On the fourth alleged error that the taxed amount was highly

excessive, it is contended by the respondent that the taxing master was

reasonable in what he taxed as it was in accordance with the law. She

contended further that, under order 12(1) of the Advocates

Remunerations Order, 2015 the Taxing Master has discretion to allow

such costs, charges and expenses as authorised by the order or as

appear to him to be necessary or proper for the attainment of justice. In

the instant case the Taxing Master properly exercised his discretion by

taxing the bill of Costs as he did after considering all the circumstances

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and being satisfied that the charged amount was fair and reasonable.

He cited the authority in the case of the Attorney General vs Amos

Shavu, Taxation Reference No. 02 of 2000 Court of Appeal of Tanzania,

at Dar Es Salaam (Unreported).

"As a general rule, the allowance for instruction fees is a

matter peculiarly in the taxing officer's discretion and the
courts are reluctant to interfere into that discretion unless it
has been exercised injudiciously. As stated in Rahim
Hasham vs Alibhai Kaderbhai (1938) 1 TLR (R) 676 while
the court has powers in proper cases to reduce the
instruction fees allowed by the Taxing Officer, it will only do
so where he has acted upon wrong principle or applied
wrong considerations in coming to his decision. This position
has been restated in diverse decisions including Premchand
Reichand vs Quarry Services of East Africa Ltd [1972]
E.A 162 where the court ofAppeal for East Africa stated that
the court will only interfere when the award of taxing officer
is so high or so low to amount to an injustice to one party."

Ms Marina was of the view therefore that, the prayer that the court

interferes with items Number 1, 2 and 5 of the Bill of Costs is

unfounded, as there is no sufficient reasons given by the applicant for

this court to quash and set aside or even vary the ruling of the taxing

master. She prayed the reference to be dismissed with costs.

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 The above constitutes a summary of the application, the counter

affidavit, and the submission of the parties in support and against the

application at hand. For easy flow, I will deal with one ground after the

other without necessarily repeating what I have already summarised

above.

Starting with the first ground of complaint that, the taxing master

erred in law when he dealt with the matter and determined the same in

the absence and without knowledge of the applicant. Now whether the

applicant had knowledge of the matter or not is a matter of records to

prove. As correctly submitted by Ms Marina Mashimba, Advocate for the

respondent, the matter was filed in court on 12/07/2019 the record

show that, the respondent was served and filed his reply on 02/08/2019

the reply which was signed by him and filed by him.

The record is further loud enough to prove that on various dates

when the Bill was fixed for orders the applicant who was the respondent

in the impugned proceedings, was represented by various Advocates,

citing few examples, on 11/05 2020 he was represented by Mr. Mtete,

Advocate, on 30/06/ 2020 he was represented by Mr.Mathias Mashauri

who was holding the brief for Mr. Muhingo, Advocate, while on
23/07/2020 he was represented by Ms. Lilian Lyimo who was holding

brief for Mr. Mussa Mahimbo and so was on 29/07/2020.

On 29/07/2020 Ms Lilian Lyimo, Advocate, did not appear as

holding brief, she probably had full instruction to proceed as she argued

the preliminary objection. She was present on 18/08/2020 when the

matter came for ruling on the preliminary objection, and was therefore

informed on the date when the matter was fixed for hearing of the Bill

of Cost on merits.

With these glaring examples on the record, it goes without saying

that the applicant was not ambushed, as there is enough evidence to

show that he was aware of the presence and existence of the

proceedings of the Bill of Costs before the Taxing Master. The ground is

therefore meritless, and is dismissed.

The second complaint is that, the taxing master erred in law when

he omitted to consider and determine the grounds of objection in his

written reply. With all due respect to the applicant, the record is vivid

and clear that the objection was argued by the parties on 29/07/2020,

whereby the applicant who was the respondent in the proceedings

before the taxing master, and the one who raised the objection, was

represented by Ms Lilian Lyimo, learned counsel. After hearing of the

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preliminary objection the matter was reserved for ruling which was

delivered on 18/08/2020 in the presence of the said Advocate.

That being the case, there cannot be any point where the

applicant can pretend not to be aware of the hearing of the preliminary

objection raised by him together with its resultant ruling. It does not

matter whether the respondent presented the ruling or not, that does

not obviate the fact on record which as a matter of practice the

applicant is aware that there cannot be any way I could deal with these

proceedings without being aided by the record of the taxation

proceedings. Therefore the ground is baseless and dismissed.

Regarding the third ground of complaint that, the taxing master

erred in law when he omitted to strike out the taxation of Bill of costs

for being premature and incompetent. In support of the said ground the

applicant submitted that, the presence of the Notice of Appeal and the

leave to appeal to the Court of Appeal, acted as a bar for the

determination of the Bill of Costs therefore, the application was

prematurely determined.

He submitted further that, after being informed of the presence of

the appeal process starting with the Notice and leave to appeal, the

taxing master was supposed to hold that the application was

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incompetent or alternatively, to stay the proceedings as it is against the

interest of justice for the proceedings of this court to run concurrently

with the proceedings in the court of appeal. He cited the case of Arcado

Ntagazwa vs Buyogera Julius Bunyango (1997) TLR 242 in which it

was held that, once a notice of appeal has been lodged to appeal to the

Court of Appeal, then the high court proceedings must be stayed until

the notice is withdrawn or is deemed to be withdrawn.

He also cited the case of Ahmed Mbaraka vs Mwananchi

Engineering and Contracting Co. Ltd, Civil Application No. 229 of

2014; in which it was said that once there is an appeal or its process has

already commenced, then, the officer issuing execution should stop till

the appeal is ready.

On that ground, the counsel for the respondent submitted in reply that,

the taxing master was right when he held that a mere lodging of the

notice of appeal by the applicant is not a bar to the hearing of the

application for Bill of costs. He cited the decision of the case of CRDB

Bank Pic versus Finn W.Peterson, Civil Application No. 367/17 of

2017, Court of Appeal, at Dar es Salaam (Unreported) in which the court

of Appeal made it clear that that unless stay of execution is sought and

granted by the court execution at the High Court will proceed. The

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Taxing Master applied this principle in the taxation of costs as there was

no order staying execution of the High Court's decision in Misc. Civil

Application No.39 of 2019.

Of these two contending arguments from the counsel for both

parties, I entirely agree with the arguments by the counsel for the

applicant that, according to the authorities in the cases of Arcado

Ntagazwa vs Buyogera Julius Bunyango (1997) TLR 242 and

Ahmed Mbaraka vs Mwananchi Engineering and Contracting Co.

Ltd, Civil Application No. 229 of 2014.

That, once a notice of appeal has been lodged to appeal to the

court of appeal, then the high court proceedings must be stayed until

the notice is withdrawn or is deemed to be withdrawn and where for

example, the execution process has already commenced then then, the

officer issuing execution should stop till the appeal is determined.

These authorities are giving the general position, of what should

be done once an appeal process has been commenced, however, the

case of Matsushita Electric Co. Ltd vs Charles George t/a C.G

Travers, Civil Application No. 71 of 2001 is very specific on what should

be done in the circumstances that where it held that;

 "Once a Notice ofAppeal is under Rule 76 (now rule 83(1) of
the Rules) then the court is seizes of the matter in exclusion
of the High Court, except for applications specifically
provided for such as leave to appeal or provision of a
certificate of point of law, or execution where there is no
order of stay of execution from this court"

This position was adopted by this court, in the case of

International Commercial Bank (T) Ltd & Another vs Primi

Aloyce Mushi, Civil Referece No. 2019 HC- Land Division, Hon. Makani,

J. and in the case of Peter P. Munisi (Administrator of the Estate

of the Late Peter Munisi) vs Yunis Bakari Mshana & Another,

Misc. Civil Application No. 181 of 2019 HC-Dar es salaam.

Looking at the above holding of the court of appeal, Bill of Costs or

taxation proceedings are not one of the specifically provided for

applications under which the High Court can exercise jurisdiction,

therefore, it goes without saying that, the Hon. Taxing Master was not

justified when he overruled the objection raised on the ground that

there is no stay of execution sought and obtained. It was supposed to

stay the proceedings and await for the out come of appeal to the Court

of Appeal. That said, I find the application to have merits, the ruling by

the taxing master dated 14/09/2020 is hereby quashed, the award is set

aside, instead the preliminary objection raised before the taxing master

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are found to be meritorious to the extent that, the taxation was

supposed not to proceed. The Bill is returned to the taxing master and

shall be stayed pending the hearing and determination of the appeal

before the Court of Appeal of Tanzania, the notice of appeal being

withdrawn or be deemed to be withdrawn.

It is accordingly ordered.

DATED at MWANZA this 23rd day of July, 2021

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