ALLAN REUBEN MOLLEL VS T LTD MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT ARUSHA MISC. COMMERCIAL APPLICATION NO.7 OF 2023 (Arising From Execution Proceedings in Commercial Case No.17 of 2014) BETWEEN ALLAN REUBEN MOLLEL T/A FIRST WORLD INVESTMENT AUCTIONEERS COURT BROKER......... APPLICANT VERSUS NATIONAL BANK OF COMMERCE TANZANIA LIMITED............................................................. 1st RESPONDENT MAKUMIRA FILING STATION.............................................. 2nd RESPONDENT CHARLES AQUILINE MAKOI................................................ 3rd RESPONDENT CALIST CHARLES MAKOI..................................................... 4th RESPONDENT EDWARD BALANDYA............................................................ .5th RESPONDENT RULING Date of.Last Order: 21st May 2024 Date of Ruling: 28th June 2024 GONZI, J. The applicant filed this application under section 14 (1) of the Law Limitation Act Cap 89 R.E 2019 praying before this honourable court for the following orders: 1. That, time within which to file bill of costs in respect of execution of this court decree in commercial case no.17 of 2014 for farm no. 16 block B with certificate of title 1 number 27187 located at Segera area, Tanga Region conducted on 30/03/2021 be extended. 2. That costs of this application be in the intended bill of costs. 3. That any other relief (s) this Hon. Court May deem fit to grant. This application was brought by way of chamber summons supported by an affidavit sworn by Allan Reuben Mollel. Upon the 1st respondent being served with the application, the 1st Respondent Company filed their counter affidavit sworn by Mr. Edwin Lyaro, refuting all the facts in the Applicant's affidavit. The 2nd, 3rd, 4th and 5th respondents did not file counter affidavits as they did not oppose the application at hand. The brief facts of this application as gathered from the affidavit in support of this application is that on March 2021, this court appointed the applicant herein as a court broker to execute the court decree in Commercial Case No. 17 of 2014. Annexure A-l and A-2 show the court order and proclamation of sale. The applicant carried out the assigned work as ordered by the court and filed report of the work done. Annexure A-3 is a copy of the report. After filling the said report as per annexure A- 3, the 1st respondent raised a concern to the court that she was not happy with the public auction that had been conducted by the applicant, and she intended to file an application to set aside and or nullify the said sale. 2 Annexure A-4 shows the application to set aside and or nullify the said sale. The 1st Respondent filed several applications before the court which included an application for extension of time and eventually an application to set aside and or nullify the sale which the Applicant had conducted on 30/3/2021. Annexures A-5 and A-6 show the court orders in the application for extension of time and the application to set aside the sale which the applicant, as a court broker, had conducted. The Applicant stated that due to the prolonged attempts to set aside the sale, it was not possible for him, as a court broker, to file his Bill of Costs for the work which he had performed in executing this court's order in Commercial Case No. 17 of 2014 in respect of landed property on farm No. 16, Block B, with the Certificate of Title Number 27187 located at Segera, Tanga Region. The applicant stated that the reasons for not filing the Bill of Costs on time were beyond his control as he couldn't file the Bill of costs on time due to the pending application to nullify the sale in which the intended Bill of Costs emanated. The applicant on 13/06/2023, through a letter from his advocates, applied for certified copies of the Ruling and Drawn Order in Misc. Commercial Application No. 02 of 2023. Annexure A-7 is a copy of the letter seeking for the certified copies of the Ruling and Drawn 3 Order. The said Ruling in Misc. Commercial Application No. 02 of 2023 was supplied to the Applicant through his advocates on 30/06/2023. He attached Annexture A-8 titled: "Fomu Maalumu Kwa Ajili Ya Utoaji Wa Nakala Za Hukumu Bure" evidencing the receipt of the Ruling. The Applicant concluded that granting of the extension of time as prayed in the chamber summons, will not prejudice any of the parties to this application. The Applicant stated that he has right to be reimbursed the costs incurred in executing this court's decree in Commercial Case Number 17 of 2014 in respect of farm number 16 Block B with Certificate of Title Number 27187, located at Segera area, Tanga Region on the 30/03/2021. The Applicant attempted to account for the delay in that 1st and 2nd July 2023, was a weekend. On 3rd, 4th ,5th and 6th July 2023 his advocate, Mr. Gwakisa Kakusulo Sambo and the Applicant were engaged in collection of necessary documents for attachment to this application and for preparation of this application. The 1st Respondent in the counter affidavit, refuted the reasons for delay advanced by the Applicant. The 1st Respondent stated that there was no legal impediment for the Applicant to lodge the Bill of Costs timely. 4 During the hearing of this application the Applicant was represented by Mr. Gwakisa Kakusulo Sambo, learned advocate, while the 1st respondent was represented by Mr. Edwin Lyaro, learned advocate. The learned counsel for the applicant started his submission by adopting the affidavit in support of this application and his skeleton written arguments filed in this court on 15th day of May 2024. He submitted that the 2nd to 5th respondents do not object the application as they did not file counter affidavits resisting the application. He supplied two (2) unreported cases to be relied upon which he had already served upon the respondents. The cases are Emmanuel Rurihafi and Janeth Jonas Mrema vs Jonas Mrema, Civil Appeal No.3214 of 2019 and National Housing Corporation and 3 others vs. Jing Lang Li, Civil Application No.432/17 of 2017. Mr. Sambo, learned advocate argued that in the case of National Housing (supra), at pages 8 and 9 thereof the Court of Appeal stated that the power of extension of time is broad and discretionary and thus in interpreting section 14 (1) of the Law of Limitation Act, the circumstances peculiar to each case must be considered. He argued that the applicant has managed to show a good cause for extension of time to file the Bill of Costs for the work done after being appointed by the court. He 5 submitted further that the applicant has accounted for each day of delay since he was appointed and why there was a delay. Mr. Sambo, learned advocate, referred to paragraph 2,3,4 and 5 of the affidavit in support of the application for argument that ever since the applicant's appointment as a court broker, the 1st respondent brought an application showing intention to contest the sale by auction. It was the submission by the applicant's learned counsel that since there was an intention to challenge the auction, the applicant as the court broker, could not proceed to claim his costs. He argued that if the court nullified the sale by auction, there would be no room for the applicant to bring the Bill of Costs. Mr. Sambo, learned advocate, submitted that it would not be possible for the Taxing Officer to proceed with the taxation of costs while there was pending an application to set aside the sale. The applicant's counsel submitted that the applicant has accounted for each day of delay. He submitted that the resistance to execution was dismissed on 12/06/2023. After that dismissal, it was when the applicant instructed his advocate to file a Bill of Costs. He therefore argued that, in the eyes of the law, the period from 30/03/2021 up to 12/06/2023 when the application to set aside the sale was dismissed, amounted to technical 6 delay. The learned counsel for the applicant invited this court to hold that technical delay is excusable. He relied upon the case of Emmanuel Rurihafi (supra). Mr Sambo also cited network challenges in the online filing system as among the factors for delay to file the Bill of Costs. He argued that the Applicant faced network challenges until when the application was ultimately admitted. The applicant referred this court to the case of Emmanuel Rurihafi (supra) which held that 22 days delay was not an inordinate delay. He argued that also a delay of 30 days was held to be reasonable. In reply, the learned counsel for the 1st respondent Mr. Edwin Lyaro, learned counsel adopted his counter affidavit filed on 31st January 2024 and the skeleton written arguments filed on 16/05/2024. Mr Lyaro, learned advocate argued that that the applicant could have filed the Bill of Costs within time regardless of what was to follow later regarding the auction of March 2021. He argued that the applicant had 60 clear days to file the Bill of Costs which lapsed on 28/05/2021 while the 1st respondent brought the Misc. Commercial Application No.04 of 2021 on 4th August 2021. He argued that if the Bill of Costs had been filed and then applications to set aside the sale could have been filed, the application on 7 Bill of Costs would beiadjourned sine die pending determination of Misc. Commercial Application No.04/2021 but the application would have already been timely in Court. Mr. Edwin Lyaro, learned advocate, submitted that in the same way that a decree holder is allowed to proceed with execution despite pendency of an appeal, a party is also allowed to file an application for Bill of Costs despite pendency of proceedings to challenge the court order from which the Bill of Costs emanates. He argued that the applicant should have taken the necessary steps to realize his Bill of Costs within time. He argued further that the applicant is a court broker hence an officer of the court who is taken to be knowledgeable of the law and obliged to act within the law. Mr. Lyaro, learned advocate concluded that the application is un- meritorious as there is a total number of 766 days of delay which period has not been accounted for. He submitted that the reasons for delay advanced by the applicant are not sufficient to allow the court to extend time to the applicant to bring the Bill of Costs. He prayed for dismissal of the application with costs. 8 By way of rejoinder submissions, Mr. Gwakisa Sambo, learned counsel for applicant submitted that the sixty days started to run after final payment by the purchaser in the auction the applicant conducted. He argued that even if the time is counted from 28/05/2021, still the application at hand faced a bit awkward situation as per annexure A-4 to the applicant's affidavit, the execution commenced before Hon. Nkwabi, Deputy Registrar and the concerns were recorded that the 1st respondent wanted to set aside the sale. He submitted that the analogue of execution of the decree pending appeal, is misplaced. He submitted that the law is not settled on continuation of the Bill of Costs application where there is an appeal. He submitted that there are conflicting decisions on that aspect. He submitted that what can proceed is only execution while the case at hand is one based on a Bill of Costs. He argued that in law one cannot file a Bill of Costs while the decision is being challenged. I will be brief in determination of the application at hand. The pertinent issue is whether or not an intention to object the sale by auction or existence of a pending matter which objects to or challenges the sale by auction, barred the Applicant court broker to file his Bill of Costs on time? In my settled view, an intention to object to the sale by auction did not bar the institution of the Bill of Costs. g The law does not impose any requirement for an applicant of Bill of Costs to await finalization of any court proceedings challenging the order that granted costs to the applicant. The Court of Appeal in Matsushita Electric Co. (E.A.) Limited versus Charles George t/a C.G.Traders, Civil Application No.71 of 2001 decided by the Court of appeal of Tanzania, at Dar es Salaam held at page 4 of the Ruling that: "I am of the considered opinion that once a notice of appeal is filed under Rule 76, then this Court is seized of the matter in exclusion of the High Court except for applications specifically provided for, such as leave to appeal, provision of a certificate of point of law or execution where there is no order of stay of execution from this court". The position has its genesis in the case of Aero Helicopter (T) Limited versus F.N Jensen (1990) TLR 142. In my settled view, it is clear that an application for Taxation of Bill of Costs is not barred by the rule in the above stated cases. The rule bars the court from entertaining additional proceedings touching on the substance of the matter on appeal such that the additional proceedings might result into court orders that might interfere with what has been taken up to appeal. The rationale of that holding is not far to see. It would not only be disrespectful, but also a 10 mockery of justice if the same matter in issue were to be dealt with simultaneously in two different courts of different levels. I borrow leaf from the words of Hon. W. A. Okwany,!, of the High Court of Kenya in the case of Miller & Company Advocates v China Roads & Bridge Corporation [2021] KEHC 408 (KLR) where, he stated that: "Taxation of costs is part and parcel of the execution process, complete with its provisions for stay of execution, under the Civil Procedure Rules." Based on the fact that taxation of costs is part and parcel of execution process, and as the Rule in Matsushita Electric Co. (E.A.) Limited versus Charles George t/a C. G. Traders (supra) and Aero Helicopter (T) Limited versus F.N Jensen (supra) except execution proceedings from the kind of proceedings in respect of which a notice of appeal prohibits their continuation, it follows that Taxation of Costs proceedings can continue despite pendency of Notice of Appeal to the Court of Appeal. In the circumstances of the present case, the Applicant was not automatically prevented from filing his application for Taxation of Costs when there were pending applications seeking to challenge the sale by auction in respect of which the applicant was entitled to costs for execution of the decree of the court. He had 60 days but he did not file 11 the Bill of costs even after the lapse of 766 days. This is an inordinate delay. There was no technical delay. In the upshot, I hereby dismiss the application with costs. It is so ordered. j g A.H. GONZI ifij/ JUDGE 28/06/2024 Ruling is delivered in Court this 28th day of June 2024 in the presence of Mr.Gwakisa Sambo, learned advocate for the Applicant and Mr. Edwin Lyaro, learned advocate for the 1st Respondent. JUDGE 28/06/2024 12