Anthony John

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA MISC. CIVIL APPLICATION NO. 51 OF 2023 (Arising from the High Court Taxation Cause No. 3/2023 Originating from Misc. Land Application No. 16 of 2019 of the Resident Magistrate Court with Extended Jurisdiction) ANTHONY JOHN (Administrator of estate of the late RWIZA RUHUGUHUGU)............... ................ ....... 1st APPLICANT ADVENTINA RWIZA....................... ........... ............... . 2nd APPLICANT NYAMWIZA RWIZA.................. ......... .............. .......... . 3rd APPLICANT ZIDINA RWIZA.... .............. .......... ....... ............... ...... .......... 4TH APPLICANT VERSUS METHOD JOHN................ RESPONDENT RULING 29th April and 3rd May, 2024 BANZI, J.: The applicants are seeking extension of time to file reference against Taxation Cause No. 3 of 2023. The application was filed by way of Chamber Summons pursuant to order 8(1)(2) of the Advocates Remuneration Order, GN No. 263 of 2015 and it is supported by affidavit deponed by Mr. Mathias Rweyemamu, learned counsel for the applicants. The respondent through his counter affidavit, opposed the application. This application traces its origin in Misc. Land Application No. 16 of 2019 which was dismissed with costs by the Resident Magistrate's Court of Bukoba in Extended Jurisdiction Page 1 of 8 for want of prosecution. Thereafter, the respondent filed a bill of costs before the Taxing Master. At the end, the applicants were ordered to pay the respondent Tshs.812,000/=. Aggrieved with such decision, the applicants claimed to have presented the reference before this court which, however, was rejected for being time barred. As a result, they lodged this application seeking for extension of time to file reference. At the hearing, the applicants were represented by Mr. Mathias Rweyemamu, learned Advocate whereas, the respondent enjoyed the services of Mr. Ibrahim Mswadick, learned Advocate. The application was argued orally. Submitting in support of the application, Mr. Rweyemamu contended that, after delivery of the award by the Taxing Master on 11/08/2023 which was certified on 14/08/2023, they filed the application for reference on 06/09/2023. However, they found themselves out of time for a single day, hence the application was rejected for being filed out of time. Explaining the reasons for the delay, he contended that the applicants have delayed for a single day which was due to miscalculation and the same may be tolerated by this Court. Apart from that, he raised a legal issue to the effect that, the Taxing Master acted without jurisdiction to entertain taxation cause while Page 2 of 8 there was notice of appeal pending before the Court of Appeal. He argued that, in the presence of such notice, the High Court and subordinate courts have no jurisdiction to entertain the application for taxation. That matter ought to be dealt by the Court of Appeal. He supported his argument with the case of Tanzania Electric Supply Company Limited vs Dowans Holdings SA (Costa Rica) and Another [2013] TZCA 437 TanzLII and National Insurance Company Corporation vs Kweyambah Quaker [1999] TLR 150. Relying on the decision of Therod Fredrick vs Abdu Samadu Salimu [2023] TZCA 17953 TanzLII to him, he insisted that, once illegality is raised, it suffices to grant extension of time. He prayed for this court to grant extension of time based on illegalities and the extent of delay which, according to him, is tolerable. In reply, Mr. Mswadick opposed the application contending that, the applicants have failed to account for each day of the delay. He explained that, after delivery of ruling in Taxation Cause No. 3 of 2023 on 11/08/2023, the applicants were supposed to have filed the reference within 21 days that is, on or before 5/9/2023 but it was filed on 3/10/2023 which is almost one month and 15 days. According to him, the applicants having delayed, they failed to account for the days they delayed. He supported his argument with the case of Rutabingwa Venant vs Jonas Flumerick [2020] TZHC 3272 Page 3 of 8 TanzLII on the need to account for each day of the delay. Concerning the issue of illegality, Mr. Mswadick argued that, illegality has to be found in the impugned decision. However, in the matter at hand, the applicants have attached the copy of notice of appeal concerning Misc. Land Case No. 52 of 2019 which had no connection with the taxation cause before the Taxing Master that originated from Misc. Land Application No. 16 of 2019. According to him, the Deputy Registrar had jurisdiction to entertain the taxation cause before him. On the other hand, Mr. Mswadick argued that, the applicants were supposed to act within time instead of using illegality as a ground for extension of time and thus, the cited cases of NIC, TANESCO and Therod Fredrick are distinguishable to this case. In that regard, he prayed for the application to be dismissed with costs. In a brief rejoinder, Mr. Rweyememu insisted that, once the notice of appeal has been filed to the Court of Appeal, any dealing with that case has to be dealt with in the Court of Appeal. According to him, Taxation Cause No. 3 of 2023 is connected with the matter subject to notice of appeal lodged before the Court of Appeal. That being the case, the respondent was supposed to move the Court to strike it out before applying for the taxation in question. He further insisted that, they delayed for only one day and other Page 4 of 8 days were used for filling this matter. In addition; he contended that; where there is issue of illegality; that surpasses every ground for extension. Having considered the submissions from learned counsel for both sides; the issue for determination is whether the applicants have established sufficient cause to warrant this court to grant extension of time. According to order 8( 1 )(2) of the Advocates Remuneration Order, this court is vested with discretion to extend time for filing reference where sufficient cause has been established by the applicant. In the case of Lyamuya Construction Co. Ltd vs Board of Registered Trustees of Young Women's Christian Association of Tanzania [2011] TZCA 4 TanzLII, the Court of Appeal underlined factors to be taken into account in application for extension of time that: "(a) The applicant must account for all the period ofdelay; (b) The delay should not be inordinate; (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; (d) If the court feels that there are other sufficient reasons, such as the existence ofa point oflaw of sufficient importance, such as the illegality of the Page 5 of 8 decision sought to be challenged. -' (Emphasis supplied). Mr. Rweyemamu has moved this court to determine two issues, that is sufficient reasons for delay and illegality. In respect of the reasons for delay, he argued that, after being supplied with the certified copy of the ruling on 14/08/2023, they filed the reference on 6/9/2023 which, however, was rejected by the Deputy Registrar for being filed out of time. He further contended that, the applicants had delayed for a single day. Upon being rejected, they filed this application seeking for extension of time. On his side, Mn Mswadick argued that the applicants have not accounted for each day of delay. On this, I am constrained to agree with Mr. Mswadick that the applicants have failed to account for each day of the delay from 14/08/2023 when the ruling was certified up to 03/10/2023 when they filed this application. Even if, I would agree with Mr. Rweyemamu that, he filed his initial application on 06/09/2023 which was rejected for being filed out of time, still he has not accounted for delay from 07/09/2023 to 03/10/2023 which is almost thirty days. As it was stated in the case of Elius Mwakalinga vs Domina Kagaruki and 5 Others [2019] TZCA 650, even a single day of delay has to be accounted for. In our case, after their application was rejected for being out of time for one day, the applicants Page 6 of 8 stayed for 27 days until when they returned before this court with this application. In his affidavit, Mr. Rweyemamu did not give any reason to account for these 27 days. Failure to account for delay of these 27 days, it goes without saying that, the applicants have failed to adduce sufficient reasons for delay as it is required by the law. Nonetheless, Mr. Rweyemamu complained that, the Taxing Master dealt with Taxation Cause No. 3 of 2023 without jurisdiction because there was a notice of appeal to the Court of Appeal connected with the matter before him. It is obvious from paragraphs 7 and 9 of the affidavit, the applicants are challenging the jurisdiction of the Taxing Master. It is common knowledge that, jurisdiction is the issue of law which can be challenged at any stage. It suffices to say that, once it is raised, it constitutes sufficient cause to warrant extension of time. See the case of Therod Fredrick vs Abdu Samadu Salimu {supra). In that regard, I hesitate to accept the invitation by learned counsel for the respondent to determine whether Taxing Master had jurisdiction or not because, determining the same at this stage would mean determination of the merit of the main application for reference which is not before this court at this juncture. Thus, in my considered view, the applicants have established sufficient cause to warrant this court to grant extension of time basing on illegality. Page 7 of 8 That being said, I find the application with merit and I hereby grant it by giving the applicants 21 days from the date of this ruling to file the reference. Each party shall bear its own costs. I. K. BANZI JUDGE 03/05/2024 Delivered this 3rd day of May, 2024 in the presence of Mr. Mathias Rweyememu, learned counsel for the applicants, the respondent in person, Mr. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA. I. K. BANZI JUDGE 03/05/2024 Page 8 of 8