ALPHONCE JOSEPH MACHA VS ORYX OIL CO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO.174 OF 2023 (Arising from Ruling and Order of the Court in Commercial Case No. 103/2020 delivered by Hon. Agatho, J.) ALPHONCE JOSEPH MACHA T/A BARABARA YA TAIFA ORYX SERVICE STATION............................... APPLICANT VERSUS ORYX OIL COMPANY LIMITED........................................................... RESPONDENT RULING Date of Last Order: 04/03/2024 Date of Ruling: 12/06/2024 GONZI, J. On 22nd November 2023, the applicant filed this application in Court under Section 14(1) of the Law of Limitation Act, Cap 89 (R.E 2019) praying that: 1. That this Honourable Court be pleased to extend time within which the Applicant can file i an application for Bill of Costs of Commercial Case No. 103/2020 delivered by Hon. Dr. U. J. Agatho, J. on 14th day of April 2023. 2. Any other order the Court deems fit to grant. The application was supported by an affidavit of Ipilinga Panya, an Advocate of the Applicant Company. In the affidavit, the applicant stated that in the prosecution of Commercial Case No. 103 of 2020, it came to the knowledge of the Respondent that he had mistakenly joined the Applicant in the case and thus on 14th April 2023, the Respondent prayed to withdraw the suit as against the Applicant. He stated that the prayer of withdrawal of the suit against the Applicant was granted with costs. A copy of the Order was attached as annexture BHA 1 to the affidavit. The applicant stated that subsequent to the issuance of the order of withdrawal with costs, he filed an application of Bill of Costs No.53/2023 on 13th June 2023. The Bill of Costs No.53/2023 was withdrawn with leave to refile it due to a successful preliminary objection raised by the Respondent. A copy of the Order was attached as annexture BHA 2 to the affidavit. The applicant stated further that on 30th June 2023 the applicant filed Bill of Costs No. 64/2023 which was struck out on the date of hearing on 20th 2 October 2023 upon another successful preliminary objection by the Respondent. A copy of the Ruling was attached as BHA 3. On 20th October 2023, the Applicant wrote a letter to the Court praying to be supplied with certified copies of the Ruling and Drawn Order. Copy of the letter was attached as Annexture BHA 04. On 26th October 2023, the Applicant was served with a certified copy of the Ruling in Bill of Costs No.64/2023 but observed that there was a clerical error on it with respect to the date of its delivery showing that it had been delivered on 19th October 2023 instead of the correct date which was 20th October 2023. Annexture BHA 05 was a copy of the Ruling with erroneous dates. The applicant continued that on 26th October 2023, they wrote a letter to Court applying for rectification of the errors in the certified copy of the Ruling. On 31st October 2023, the Applicant was served with the rectified certified copy of the Ruling in Taxation Cause No.64/2023, and which was attached as annexture BHA 07 to the affidavit. The applicant stated that on 3rd November 2023, they lodged online via JSDS their application for extension of time which, however, due to system challenges caused by migration from JSDS to Case Managing System, was not admitted on time and on 6th November 2023 the case 3 management system indicated that there were some errors as if they had already filed the application. They sought advice from the Hon. Registrar who advised them to make a fresh application in the new Case management system. They attached a copy of Notice and summary of E- filing system as annexture BHA 08 and BHA 09 respectively. The applicant stated that it was on 7th November 2023 when they were able to file the present application for extension of time. The Applicant stated that the applicant at the time of filing the application at hand was late by 144 days. The applicant concluded that the delay was a technical one as the Applicant was in Court bonafidely prosecuting several applications that were struck out due to technical defects. The applicant indicated that there are overwhelming chances of success in the intended application and the respondent will not be prejudiced. The respondent resisted the application. The respondent filed counter affidavit. At the hearing of the application, Mr. Alike Mwamanenge, learned Advocate represented the Applicant while the Respondent was represented by Mr. Jeremiah Tarimo, learned Advocate. Mr. Alike Mwamanenge submitted that under section 14(1) of the Law ofitation Act, the Applicant is seeking extension of time to file the Bill of Costs in Commercial case 4 No. 103/2020 delivered by Hon. Agatho, J on 15/04/2023. He reiterated the contents of the affidavit and concluded that the delay is 144 days counting from when the applicant was allowed to refile the Taxation Cause No.64/2023 in seven days. He argued that all the delay is technical. He relied on the case of Mbogo versus Shah (1968) EA, at page 93 where three factors were mentioned. He argued that the three considerations are length of the delay, reasons for the delay and degree of prejudice to the defendant. He argued that the applicants are relying on the ground of good reasons for the delay. He argued that the applicant has been diligently prosecuting Taxation proceedings in respect of Commercial Case No.103/2020 up to and until 7th November 2023. He relied on the case of Hassan Kibasa versus Angelisia Chana Kibasa, Misc. Civil Application No.318/2021 where the Court held at pages 6 and 7 that even where the applicant filed an incompetent application or unnecessary applications, still it is a good cause for delay. Mr.Mwamanenge submitted that there will be no prejudice upon the Respondent if time is extended as the Respondent's counter affidavit does not show any degree of prejudice. He concluded by submitting that the applicant has an arguable case. 5 Mr. Jeremiah Tarimo, learned Advocate submitted that the applicant is not entitled to extension of time. He argued that the respondent would not have objected to the extension of time for the applicant to file the bill of costs if indeed there existed an order awarding costs to the Applicant. Mr.Tarimo submitted that the Order of the Court, Annexture BHA 01 in the 2nd page is clear that the Applicant was not granted costs as costs were granted only to the 3rd and 4th Defendants. The applicant was the 1st Defendant in that case. Mr.Tarimo submitted that the applicant was not party to the proceedings which gave rise to the order of costs. The first page shows that the 1st and 2nd Defendants had already been dropped from the case and that at the time of the order of withdrawal of the suit the parties in the suit were only the 3rd and 4th Defendants. The Applicant as the 1st Defendant and the second Defendant in the suit, had already been dropped. Mr. Tarimo therefore argued that the Applicant through paragraph 5 of the Reply to counter affidavit, which was made in response to paragraphs 6 and 7 of the Counter affidavit, told lies to the Court by stating that annexture BHA 01 is the rectified Ruling dated 14th April 2023. 6 He submitted that annexture BHA 01 is the Order of the Court for withdrawal of the suit with costs which order did not cover the Applicant. Mr. Tarimo submitted that it is not correct for the applicants to say that initially the Applicant filed Bill of Costs No.53/2023. That was Taxation Cause No.53/2023 which has been annexed as Oryx 1 to counter affidavit. That Bill of Costs was filed on 16th June 2023 and at the top it shows that it emanates from the Ruling and Order of the Court in Misc. Commercial application No. 103/2020. He argued that the Respondents objected to it successfully due to lack of order granting the Applicant costs and thus the Applicant's counsel withdrew the Bill of Costs No.53/2023 with leave to refile in 7 days. Mr. Tarimo, submitted that as per annexture Oryx 2, the Order arose from Misc. Commercial Application No. 103/2023 and not Commercial Case No. 103/2020. The argument that the Applicants have been in Court proceedings in respect of Commercial Case No. 103/2020 is therefore false. He argued that the applicant's initial Bill of costs No. 53 emanated from Commercial Case No. 103/2020 is false. He also added that even the Taxation cause No.64/2023, according to its heading, arose from Misc. Commercial Application No. 103 of 2020 and not Commercial Case No. 103 of 2020. 7 Mr. Tarimo also argued that while the applicant submitted that the Order which granted them costs was of 15th June 2023, the applicant allegedly had filed Bill of Costs No.53 /2023 on 13th June 2023. That was 2 days before the Order was given. He submitted that the Applicant is not telling the truth in Court. Mr. Tarimo submitted that even when the Applicant was granted 7 days to refile the incompetent Bill of Costs No.53/2023, the applicant refiled the same by 1 day late beyond the allowed time. That is the cause for the preliminary objection that was raised against Taxation Cause No.64/2023 which was also struck out. He concluded by saying that even the Ruling of Taxing Master at page 6, shows that the Bill of costs was being dismissed because it was a non-starter for not containing an order granting costs to the applicant. He added that the reasons given are not relevant as the applicant has not accounted for every single day of delay. The respondent's counsel argued that when counted properly, the days of the delay were 153 days and not 144 as argued by the applicant. On technical delay, the learned counsel for the Respondent argued that the Applicant was busy prosecuting Bill of Costs on irrelevant cases apart from the Commercial Case No. 103/2020. 8 Mr. Tarimo submitted that if the applicant is granted extension of time, it will be prejudicial to the Respondent because the Applicant will be filing a Bill of costs which does not emanate from any Court order. Hence, the respondent will suffer from defending an incompetent application. He submitted that so far, the Respondent has defended against 2 incompetent Bill of Costs applications in Court without being granted any costs. If the third one is allowed, it will affect the respondent greatly. He relied on the case of Baruti versus Seth Senyael and another (2022) where at page 8 the Court held that counting the period of the delay starts from the date when the decision was given. He argued also that the Applicant is not entitled to technical delay as it is not universally available. On arguable issues, Mr. Tarimo argued that in absence of even the Court order granting costs, the Applicant cannot be said to have arguable issues. He prayed for dismissal of the application with costs. Mr. Mwamanenge submitted in rejoinder that the arguments on lack of order of granting costs should be raised before the taxing Master after extension of time is granted. Not at the stage of an application extension of time. On the mistakes in the number of Commercial case No. 103/2020 in the Bill of Costs No.53/2023 and No.64/2023, he argued that the errors are 9 what prompted the Applicant to apply for rectifications before the Taxing Master. As now rectification is already done, they will be submitting in Court the correct ones as rectified. He argued that the Court Order of withdrawal of the suit with costs, granted costs to the Applicant who was the 1st Defendant in Commercial Case No. 103/2020. He argued that the affected parties were the 1st and 2nd Defendants but the Court felt it just to grant costs to the 3rd and 4th Defendants too. He submitted that the suit was withdrawn with costs to all four defendants. He reiterated most of the arguments in submissions in chief. In determination of the application for extension of time, the Court has also to be satisfied that if time is extended the applicant will be able to file the proceedings intended. In the case at hand the Respondent has argued that there is no order that granted costs to the Applicant. The Applicant insisted repeatedly that on the basis of the Court Order attached as Annexture BHA 01, the applicant as the 1st Defendant therein, was awarded to costs. I looked at the Order of Hon. Agatho, J., in Commercial Case No.103 of 2020 delivered on 15th June 2023. That case was filed by the Respondent herein and had 4 Defendants namely: (1) Alphone Joseph io Macha T/A Barabara ya Taifa Oryx Service Station; (2)Yusuph Washokera; (3) Peter Kaale and (4) Community Petroleum Limited. At page 1 the Court stated: "But suffice to state the reason for praying to withdrawal the suit is that they find it difficult to proceed with the matter considering that the facts pleaded in the plaint connect the defendants (3d and 4h) and the ones that were dropped out (1st and 2fd). And since the Court rejected to grant a prayer to amend the plaint then the suit may fail or becomes difficult to be prosecuted by the plaintiff. The prayer has been objected by counsel for the 3d and 4h Defendants for a simple reason that the defendants will be prejudiced as the plaintiff has seen the evidence of the defendants contained in the witness statement.....Now turning to costs, I am inclined to grant the costs to the defendants because the trial was already set in motion. The suit was at advanced stage. The parties have not only engaged Advocates, they have filed pleadings, they have conducted 1st Pre trial conference, mediation, Final Pretrial conference, filed witness statements, etc. they justifiably deserve their costs. It will be unfair and injustice not to grant the 3d and 4h ii Defendants their costs. In conclusion, the suit is marked withdrawn with costs, and the Plaintiff is granted leave to refiie her suit within 21 days starting from today". The Applicant claims that the above reproduced Court Order granted costs to all the 4 Defendants in it. The Respondent has submitted that the Court Order had only granted costs to the 3rd and 4th Defendants in it but not the 1st and 2nd Defendants. The Applicant herein was the 1st defendant in that case. Plainly that Order of 15th June 2023 was making reference to previous proceeding when the Applicant as the 1st Defendant and the 2nd Defendant in that case had been dropped from the case. The Order of 15th June 2023 was not dropping the case against the 1st and 2nd defendants therein. By the time the Order was being issued the 1st and 2nd Defendants in the suit had already been dropped from the case. And the Plaintiff wished to proceed with the case against the 3rd and 4th Defendants only but he had prayed for amendment of the plaint to change the facts which were connecting the 1st and 2nd Defendants who had already been dropped. At the time the order was being made the Hon. Judge was addressing the 3rd and 4th Defendants only, the 1st and 2nd Defendants 12 having been dropped out prior. If the 1st and 2nd defendants were awarded costs in the previous order that had dropped them from the suit, they may proceed on the basis of that Order, if any. The Order of the Court dated 15th June 2023 was very specific that it was referring to the 3rd and 4th defendants in the Suit. There are many reasons why this is the correct interpretation of that order: Firstly, the reason for the prayer to amend the plaint is shown to have been due to an earlier order that had dropped out the 1st and 2nd Defendants from that case. The applicant was the 1st defendant. The reason given for praying to amend the plaint by the plaintiff was that the facts in the plaint were connecting all 4 defendants therein. Hence an amendment was sought. Instead of amendment, the Court ordered withdrawal with liberty to refile. Now if the 1st and 2nd defendants were still parties up to the date of that order and were being covered by the order, why would the Plaintiff want to amend the plaint to remove the facts connecting the 1st and 2nd defendants.? How can a plaintiff remove facts connecting a person who is still a party to the suit? This confirms that the 1st and 2nd Defendants had already been dropped out as the Order says conspicuously. 13 The second reason is that the resistance to withdrawal of the suit is shown to have been made by the 3rd and 4th defendants only. The Court is so clear as to what happened: " The prayer has been objected by counsel for the 3rd and 4th Defendants". Throughout the Order there is no intimation that the 1st and 2nd Defendants were heard or consulted. Their absence is conspicuous. Even if the 1st and 2nd defendants had been present in Court, the Court could not have blankly granted them costs of the suit unless they had prayed for it. They didn't pray for costs because they were not in Court. The third reason is that the same words:" The prayer has been objected by counsel for the 3rd and 4th Defendants" indicates that the suit was being withdrawn against the 3rd and 4th defendants. The 1st and 2nd Defendants never objected to the withdrawal of the suit against them because they were no longer parties. A Court cannot pass an adverse order without hearing the affected party first. The 1st and 2nd defendants had already been dropped out and that is why they were not involved in the proceedings of that date. Thirdly, the Court in the order used the generic reference:" I am inclined to grant the costs to the defendants because the trial was 14 already set in motion," after having already made the context clear as to who were the defendants. Prior to the making of this order, the "defendants" had already been mentioned and described to be the 3rd and 4th Defendants only who had objected to the prayer of withdrawal and refiling of the suit and who had craved for costs, through their counsel. After having made the context clear that the defendants were the 3rd and 4th Defendants only, it was not imperative for the Court to reiterate in each and every sentence, over again, that the defendants meant the 3rd and 4th Defendants. The fourth reason is that at the end of the order the Court for clarity repeated on who were entitled to costs. The Court held that "It will be unfair and injustice not to grant the 3rd and 4th Defendants their costs." This sentence clearly identified the persons entitled to costs. The Court used the word "their costs". The Applicant is not entitled to the costs specifically granted and awarded to the 3rd and 4th Defendants as the Court used possessive pronouns referring to the 3rd and 4th defendants that the costs thereby awarded belonged to the 3rd and 4th defendants. The Applicant as the 1st Defendant in that suit was left out by that order. I find 15 it as a fact that the Applicant was not awarded costs by the Court order of 15th June 2023 attached as annexture BHA 01. Fifth, the Applicant in the Chamber Summons has indicated a different Orde granting him costs in respect of which extension of time is sought and not the Order dated 15th June 2024 which was attached to the affidavit in support of the application. In the Chamber summons, the first prayer was with respect to Commercial Case No. 103/2020 delivered by Hon. Dr.U.J. Agatho, J. on 14th day of April 2023. The applicant did not attach to his affidavit that Order entitling the applicant to costs. The Applicant attached as BHA 1 a Court order of 15th June 2023 and which does not grant the Applicant any costs. The Applicant therefore has not shown to this Court any order that entitles him to costs. The question is, once it is known plainly that the Applicant is not entitled to any costs from the Court order that he wants to rely upon so as to claim costs in case time is extended, should this Court grant time for the applicant to bring a bill of costs and therefore, leave the matter under the decision of the Taxing Officer? In my settled position that is not correct. Extension of time is discretionary power. The applicant cannot seek an extension of time so as to bring an application which is legally inadmissible. 16 That would be an abuse of the Court process. The application fails on this ground only. As the application fails on this ground only, I find it unnecessary to determine the other arguments advanced by the parties as they would be inconsequential to the outcome of the case. In the end, the application is dismissed with costs. Ruling is delivered in Court this 12th day of June, 2024 in the presence of Ms. Joyce Makapila, learned Advocate for the Applicant and Mr. Jerry Msamanga, learned Advocate for the Respondent. 17