china civil engineering construction corporation ccecc vs bunda town council another 2024 tzhc 640 4 march 2024

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY

AT MUSOMA MISC. CIVIL APPLICATION NO. 24 OF 2022 (Arising from Civil Case No. 14 of2022)

BETWEEN

CHINA CIVIL ENGINEERING CONSTRUCTION CORPORATION (CCECC).................................................... APPLICANT

VERSUS BUNDA TOWN COUNCIL..........................................1st RESPONDENT ATTORNEY GENERAL...............................................2nd RESPONDENT

RULING 21th February & 4th March, 2024 M. L, KO MBA, J.: The applicant in this application is seeking for an order to be allowed to defend a summary suit filed by the 1st respondent herein who is claiming for unpaid leavy by the applicant. After a several demands by the respondent, applicant responded the demand letter by promising the company is dealing with the matter. It is trite that defendant has no automatic right to defend in a such type of case unless there is satisfaction to the need to do so in a separate application, which is the one I handle. Page 1 of 9 Chamber summons which initiates this application was filed under Order XXXV Rule 3(1) of the Civil Procedure Code [Cap 33 R.E 2019] supported by affidavit of Fred Mshana, Principal officer of the applicant. During the hearing of this application the applicant was represented by Mr. Andrew Luhigo, the learned Advocate and on the other hand, the learned State Attorneys, Mr. Ndalo Stahimili and Mr. Abdalah Makulo, both State Attorney representing respondents. In his submission, Mr. Luhigo prayed the court to adopt affidavit deponed by Mr. Fred Mshana and he submitted that, the application of this nature is only granted when there is triable issue in affidavit of the applicant as was in Prosper Paul Masawe and two others vs Access Bank (T) Ltd Civil Appeal No. 39 of 2014 CAT at Dar es salaam (unreported). He further

submitted that court should confine on affidavit supplied and not to command applicant to prove his argument and referred this court to decision of the court in Makungu Investment Co. Ltd vs Petrol Petrosol Ltd Civil Appeal No. 23 of 2013 (CAT) at Arusha (unreported) where applicant denied the existence of a contract between parties Court of Appeal said High court was wrong to compel the applicant to explain over his allegations. Page 2 of 9 It was his further submission that paragraph 5 the applicant affidavit explains reasons to file defence is the truth that respondent has no authority to receive the said levy except the Ministry of Mineral. To him, it is a triable issue which entitle applicant the right to defend by filing WSD and argue her case. He prayed leave to be granted. Due to the lack of proof of service, respondents promised to argue on point of law alone while resisting the application. It was Mr. Ndalo who said the application is insufficient to grant reliefs applied. The base of his submission is conditions for granting which said there are five as per decision of African Banking Incorporation Ltd vs Lake Transport Ltd and 2 Others Commercial Case No. 291/2002 High court Dar es salaam at page 3-4 but opted to elaborate only one that is; if the Defendant has no defence or the defence is setup or sham the defendant is not entitled leave to defend. Elaborating

more, counsel submitted that in his affidavit at paragraph 5, the only reason deponed by applicant is allegation of double taxation on account that leavy is paid to the Ministry. He said they thinking that leavy was supposed to be paid to the Ministry is not correct because the same are governed by law. To justify his allegation the applicant was supposed to mention the law under which he paid the said leavy short of that, the Page 3 of 9 reasons adduce are not enough to grant what prayed in chamber summons. Relating the prayer with Constitution of United Republic of Tanzania, Mr. Ndalo submitted that Article 138 of the Constitution elaborate that no leavy shall be paid unless legislated by Parliament and it was adhered by enactment of The Finance Act, Cap 290 which permit Local Government to collect leavy including building material leavy. He lamented that applicant failed to mention the law that prohibit double taxation in our jurisdiction. It was the argument of the counsel that imposition of tax and leavy is a constitution matter and so far as the tax are charge as per law. In case there is double taxation the applicant was supposed to challenge it in courts of law and not otherwise. Mr. Ndalo did not end there; he had an alternative that if at all the defence is not sham and the leavy was supposed to be paid to the Ministry of Mineral applicant was supposed to prove

payment of the same in application in order to justify the double payment or else to file interpleader suit under Order XXX Rule 3 of the CPC so that the court can determine who is supposed to impose that leavy between the two Institutions. Page 4 of 9 In a different note, counsel for the respondent noted that the application which was filed in court is not indicating the author, being legal issue may be raised at any time. Elaborating this issue Mr. Ndalo submitted that section 44 (2) of Advocates Act, Cap 341 necessitating the name of the person preparing the document to be indicated, or else the document is improperly before the court. In Rocket Mahaga vs Msafiri Msemba, Land Application No. 62 of 2020 this court (Musoma Registry) insisted any document filed in court which does not indicate author cannot be accepted in court. He finally prayed if his submission to be found with merit that application was filed illegally then it was not supposed to be entertained. He further prayed this court to find the application is hopelessly unfounded and dismiss it with costs. While rejoining his submission Mr. Luhigo started with a new raised issue on drawer, he submitted that his document is competent and valid as the drawer of the document is not a law firm neither doing legal services and therefore the law does not demand him to put his name. Clarifying further he said the law cited

is for advocates and their matters while the applicant is a Chinese Company (CCEC) who is not a law firm. Distinguishing the case of Rocket Mahenga (Supra) counsel submitted that the document at hand was prepared by litigant noton behalf of the litigant. In alternative Page 5 of 9 to that he prayed this court to invoke overriding objective principle because this is minor issue which not prejudice the respondent. On main issue, counsel complained on the submission of Mr. Ndalo to have facts, that he presented law as facts while he was not allowed to attack facts of affidavit as his counter affidavit was struck out. On interpleader he submitted that they could not file the same without first be granted leave. He prayed leave to be granted as there is triable issue. I have heard parties in their submission. I shall first address the issue of signing the application as raised by Mr. Ndalo. That pleading must have name of the person who prepared. In the application at hand, chamber summons has no name of the person prepared but the affidavit is signed. However, the cited law, the Advocates Act is enacted to be used by advocates and relating matters to advocates as per short title. Applicant being not a law firm nor dealing with legal issue, she shall not be punished by the law not applicable to him. I overrule the raised legal issue. Being done on the legal issue, now turn to the

main application where this court was invited to decide whether the applicant has registered triable issue to be considered. Page 6 of 9 The suit was filed under Order XXXV and this application was filled under Rule 3(1) of the same Order, for easy of reference I shall reproduce the relevant rule hereunder; (1) The court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which- (a) disclose such facts as would make it incumbent on the holder to prove consideration, where the suit is on a bill of exchange or promissory note; (b) disclose such facts as the court may deem sufficient to support the application; or (c) . The above excerpt is clear that there must be sufficient facts to support application. The Counsel for applicant relied in paragraph 5 of the affidavit that has facts to support its application. In the paragraph he depone that the failure to remit is not caused by negligent or willfully refusal rather a claim by respondent is seem to be double taxation. Verbally the paragraph reads; That the appiicant's/defendant failure to remit such claims mentioned under paragraph 678 and 9 was not caused by neglect act or willful refusal but by fact that it seems to be double taxation because the levies and cess are paid to the Ministry of Minerals as the statutory obligation. The need to pay as raised by the Page 7 of

9 respondent/plaintiff receive from the AppUcant/Defendant is service levy which no party disputed to the same. Catch words in the affidavit is 'seems to be double taxation'. It is not confirmed by the applicant if it is double taxation and the facts are not elaborative. It is true that in Makungu Investment Co. Ltd vs Petrol Petrosol Ltd (supra) courts were warned not to command proof of allegation. But facts in the cited case based on existence of the contract, respondent denied to have the contract between the two. In the case at hand the applicant did not deny to extract building material within the geographical sphere of the respondent. The leavy claimed is governed by law and the respondent has the duty to make sure the law is adhered. The relevant provision of law which direct the applicant to apply for leave to defend the suit directs the affidavit to disclose facts that shall support application. I find the assumption of existence of double taxation is not sufficient to support application as required by the law. The applicant is assuming the fact. While am subscribing to the positions in Prosper Paul Masawe and two Others vs Access Bank (T) Ltd (supra) and Makungu Investment Co. Ltd vs Petrol Petrosol Ltd I find the applicant failed to register a triable issue sufficient to grant what he was looking for. I proceed to dismiss the application as I hereby do. It is so ordered. Page 8 of 9 M. L. KOMBA Judge th March, 2024 Ruling delivered in chamber while this court operates from Tarime District Court in the presence of Mr. Stahimili Ndalo State Attorney for Respondents and Mr. Andrew Luhigo Advocate for the applicant. Counsels were heard via teleconference, a service provided by Judiciary of Tanzania. Mk M. L. KOMBA Judge 04th March, 2024 Page 9 of 9