AMON JGMNT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA MISCELLANEOUS CIVIL APPLICATION NO. 000017879 OF 2024 AMON MWITA GIMACHA...................................................................APPLICANT VERSUS BONIFACE MATIKO MARWA......................................................... RESPONDENT RULING OF THE COURT 11/12/2024 & 11/02/2025 Kafanabo, J.: This is an application for an extension of time filed by chamber summons supported by affidavits of the Applicant and his learned Advocate. It is made under Order 7(1) and (2) of the Advocates Remuneration Order, G.N. No. 264 of 2015. In the chamber summons the Applicant is applying for the following substantive order: i. This Court be pleased to enlarge the time within which the Applicant to present his reference before the judge. ii. Costs be provided for Hi. Any other reliefs this court may deem fit to grant The background of the matter is straightforward. As may be gathered from the affidavit supporting the application, the Applicant was the Respondent in Taxation Cause No. 22 of 2023 which was filed by the 1 Respondent herein in the High Court of Tanzania. The matter was heard and ruling was delivered on 21/03/2024 in favour of the Respondent. The Applicant was aggrieved by the decision of the Taxing Officer, however, he could not prefer reference to this Court because of the alleged fact that he was not feeling well. On 1st April 2024, he went to the hospital where he was, supposedly, diagnosed with hypertension. The Applicant further deposed in his affidavit that the illness persisted until 17th July 2024 and he could not engage in any activity that could trigger the problem. It is also averred in the affidavit that on 18/07/2024 and 22/07/2024 he visited his Advocate who advised him to file the present application. It was also averred that there is a legal issue to be determined by this Court regarding the disallowance of the overbilled bill of costs on the one-sixth rule. The Respondent filed a counter affidavit disputing the facts as deposed by the Applicant and his advocate in the affidavits supporting the Application. The Respondent also stated that the Applicant failed to attach in his affidavit a medical report proving that he was sick during the time he failed to file the Application. In this Application the Applicant was represented by Mr. Baraka Makowe, learned Advocate, and Mr. Onyango Otieno, Advocate entered an appearance for the Respondent. The application was argued by written submissions and each party complied with the schedule of filing the same as per the order of the Court. 2 In support of the application for an extension of time, the Applicant's counsel submitted that the time for the Applicant to prefer an application for reference be extended because the Applicant was sick, and thus could not take necessary steps towards challenging the decision of the Taxing Officer. It was also submitted that sickness is a sufficient cause for an extension of time, citing the case of Convergence Wireless Networks (Mauritius) Ltd & 3 Others vs WIA Group Ltd and 2 others (2016 TLR 153). Another argument featured in the Applicant's submission was illegality in respect of which it was argued that there was excessive billing which was contrary to Order 48 of Advocates Remuneration Order. It was submitted that there was an illegality because the taxed amount fell under the one-sixth rule, and the Taxing Officer ought to have disallowed the entire bill save for the disbursement. It was further submitted that illegality is also a sufficient ground in granting an extension of time citing the case of Kalunga & Co. Advocates vs National Bank of Commerce Ltd 2006 TLR 235. Objecting to the application, the Respondent's counsel submitted that the Applicant miserably failed to establish that he was sick as no medical report was attached to the affidavits supporting the application. It was also the Respondent's argument that the delay in applying for reference was because of the Applicant's negligence given that he was neither bedridden nor hospitalized. As regards the issue of illegality, the Respondent's counsel submitted that there is nothing injudicious or illegal with the decision of the Taxing 3 Officer. His submission was premised on the ground that Order 48 of the Advocates Remuneration Order gives discretion to the Taxing Officer to disregard instruction fees in computing the one-sixth amount. The case of Kampuni ya Mabasi Zakaria v. Mariam Charles, Miscellaneous Civil Reference No. 9911 of 2024 was cited to bolster the submission. In rejoinder submissions, the Applicant reiterated the substance of the main submissions and insisted that the Court be pleased to grant the application because sufficient cause had been advanced. After the submissions of the parties, this Court is called upon to determine the merits of the application. However, before considering the substance or otherwise of the application there are two issues to address briefly. The first issue is as regards the enabling provision of the law in respect of this application. As rightly commented by the Respondent's counsel, Order 7(1) and (2) of the Advocates Remuneration Order cited in the chamber summons, has nothing to do with an extension of time. Also as rightly conceded by the Applicant's counsel, Order 8(1) of the Advocates Remuneration Order, is the enabling provision. This Court is also alive to the settled position of the law that non-citation, or wrong citation of the enabling provision of the law is not fatal if the Court is seized with jurisdiction to hear and determine the matter. See the case of the Registered Trustees of Baraza Kuu la Jumuiya ya Waislamu Tanzania vs Registered Trustees of the National Muslim Council of Tanzania (BAKWATA) (Civil Application No. 480/08 of 2024) [2024] TZCA 630 (24 July 2024). 4 Further, the Applicant's counsel raised the issue of defectiveness of the Respondent's affidavit in his submissions. It is a view of this Court that the same amounts to a preliminary objection and should have been raised before hearing of the application because it is on record that the Applicant's counsel was served with the counter-affidavits of the Respondent on 11/10/2024 and orders for hearing the matter by written submissions was issued on 11/11/2024. Under the circumstances, the matter was inappropriately raised and thus will not be dealt with in this ruling. Reverting to the present application, Order 8(1) of the Advocates Remuneration Order governs application for an extension of time within which to file reference and provides that: "The High Court may, subject to order 7 extend the time for filing a reference upon sufficient cause. " In light of the above provision, an extension of time may be granted upon the Applicant demonstrating a sufficient cause. It is also trite law that since there is no definition of reasonable or sufficient cause then the Court has the discretion to determine what amounts to a good cause by considering the facts of each particular case. See the case of Bank M T. Ltd vs Enock Mwakyusa (Civil Application No. 520 of 2017) [2018] TZCA 291 (25 October 2018). Moreover, the Applicant is required to account for each day delayed. The case of the Board of Trustees of the Free Pentecostal Church of Tanzania vs Asha Selemani Chambada and Another (Civil Application 63 of 2023) [2023] TZCA 147 (28 March 2023) is relevant. 5 In the present case, the first ground for the delay was the Applicant's sickness. As rightly argued by the Respondent's counsel, the Applicant has failed to establish that he was truly sick to the extent of being unable to consult his Advocate and file an application for reference within the time prescribed by the law. This is also true because the Applicant did not, in his affidavit, disclose that he was either hospitalized or was bedridden so as to curtail his ability to communicate with his Advocate. It is also evident that the Applicant did not attach to his affidavit a medical report proving his alleged sickness. It follows that the Applicant's depositions in the affidavit are insufficient to prove the alleged ailment. Under the circumstances, this Court finds that the Applicant did not file the present application promptly to seek an extension of time, as he has failed to establish ill health as the cause of the delay. In the case of the Attorney General vs Tanzania Ports Authority & Another (Civil Application 87 of 2016) [2016] TZCA 897 (12 October 2016), the single Justice of the Court of Appeal, held that: 'What amounts to good cause includes whether the application has been brought promptly, absence ofany invalid explanation for delay and diligence on the part of the applicant' It ensues that, in the absence of proof of the Applicant's sickness impacting his inability to take necessary steps towards challenging the decision of the Taxing Officer, this Court finds the averment that Applicant was sick invalid, and thus cannot be a ground for extension of time. 6 The other ground advanced by the Applicant is illegality in respect of which it was argued that the decision of the Taxing Officer contravened Order 48 of the Advocates Remuneration Order which required her to disallow the whole bill of costs because she had disallowed more than one- sixth of the presented amount for taxation. As alluded to herein above, the Respondent's Counsel argued that there is nothing injudicious or illegal with the decision of the Taxing Officer because she exercised her discretion according to order 48 of the Advocates Remuneration Order in disregarding instruction fees when computing the one-sixth. Further, it is a view of this Court that although the decision in Kampuni ya Mabasi Zakaria v. Mariam Charles, Miscellaneous Civil Reference No. 9911 of 2024 cited by the Respondent's counsel is relevant to the interpretation of Order 48 of the Advocates Remuneration Order, and in resolving the alleged illegality, it is currently premature to dive into the pool for that purpose, as it will be tantamount to determining the taxation reference in this application for extension of time which this Court should, at all costs, avoid. Moreover, this Court is of the view that on the face of the record, especially on page 03 of the Taxing Officer's decision, it is clear that TZS 2,420,000/= was allowed as costs out of TZS 4,370,000/= claimed by the Respondent. It is this decision the Applicant seeks to challenge on the basis of illegality. However, it is uncertain at this juncture to determine whether the disallowed amount contravened Order 48 Advocates Remuneration Order as argued by the Applicant's counsel, or whether it was properly applied as argued by the Respondent's counsel. This is a point of law that 7 cannot be determined in this application for extension of time, although it is manifest on the face of the record as it did not require long-drawn arguments to understand. See the case of Chandrakant Joshuabhai Patel v. The Republic [2004] T.L.R. 218. The law on extending time based on the ground of demonstrated illegality is well settled in our jurisdiction. In the case of Ntiga Gwisu vs Republic (Criminal Appeal 428 of 2015) [2019] TZCA 395 (6 November 2019) the court of appeal held that: "Certainly, it is settled that the illegality of the decision sought to be challenged can warrant the extension of time as the Court held in Principal Secretary, Ministry of Defence and National Service v. Devram Vaiambhia [1992] TLR185 at page 89 thus: "In our view, when the point at issue is one alleging illegality of the decision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and, if the alleged illegality be established, to take appropriate measures to put the matter and the record straight” .... on the face of the record, they raise allegations of illegalities in the trial proceedings and the decision thereon warranting enlargement of time to the appellant so as to provide an opportunity to the High Court to investigate the allegations and remedy the alleged illegalities, if established. We think if these illegalities had been brought to the attention of the learned Judge, he would have found the enlargement of time prayed forjustifiable." 8 Moreover, in the case of VIP Engineering and Marketing Ltd and 2 Others vs CitiBank Tanzania Ltd (Consolidated Civil Reference 6 of 2006) [2007] TZCA 165 (26 September 2007) the Court of Appeal held that: "It is, therefore, settled /aw that a claim of illegality of the challenged decision constitutes sufficient reason for extension of time under rule 8 regardless of whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay." See also the case of the Attorney General vs Tanzania Ports Authority & Another (Civil Application 87 of 2016} [2016] TZCA 897 (12 October 2016). Likewise, it is also important to point out that establishing that the decision sought to be challenged contains illegality is not enough for the Court to extend the time. The Court may extend time if it is also established that the alleged illegality is manifest and/or apparent on the face of the record as already determined herein above. The Court of Appeal cases of Ngao Godwin Losero vs Julius Mwarabu (Civil Application 10 of 2015) [2016] TZCA 302 (13 October 2016) and Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011) are relevant on this point. In light of the foregoing, this Court finds that a prima facie illegality has been demonstrated to warrant that a detailed examination is required to ascertain whether the Applicant's contention is valid in law. Given the above, the application is allowed, and the Applicant is given fourteen (14) days from 9 the date of this ruling to refile the application for reference as prayed. Given the nature of the application, each party shall bear their costs. It is so ordered. Dated at Musoma this 11th day of February 2025 K. Judge Tjie ruling was delivered in the presence of the Applicant, and in the presence of the Respondent. K. I. Kafanabo Judge 11/02/2025 io