delta africa ltd vs voda t public ltd 2022 tzhccomd 286 16 september 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION N0.70 OF 2022 (ORIGINATING FROM TAXATION CAUSE NO.37 OF 2019 BY HON. MINDE, TAXING officer) DELTA AFRICA LIMITED.............................................. APPLICANT VERSUS VODA TANZANIA PUBLIC LIMITED......................... RESPONDENT Date of Last Order: 24.08.2022 Date of Ruling: 16.09.2022 RULING MAGOIGA, J. The applicant, DELTA AFRICA LIMITED by chamber summons made under the provisions of order 8 (1) and (2) of the Advocates Remuneration Order, 2015 has preferred this application against the above named respondent praying for this court be pleased to grant the following orders, namely: i. Extend time upon which the applicant may file reference in respect of Taxation Cause No. 37 of 2019; ii. Costs follow the event; and iii. Any other relief this Honourable court deem fit and just to grant. The chamber summons was usually accompanied by affidavit of Mr. MOHAMMED ARAZ, director of the applicant stating the reasons why this application should be granted. Upon being served with the application, the respondent through Mr. Gaspar Nyika learned advocate filed a counter affidavit strongly opposing this application and stating therein reasons why this application should not be granted. Facts pertaining to this application are simple and straightforward. The respondent herein was decree holder in Commercial Case No.95 of 2017. Subsequently, she filed Taxation Cause No.37 of 2019 which was taxed in her favour on 29/03/2022 in the presence of Grace Kibaki, learned advocate for the respondent and holding brief for Mr. Noel Sanga, learned advocate for applicant. On 08th April, 2022 by a letter dated 06/08/2022 the learned advocates for the applicant applied for copies of the ruling and drawn order for their record and proper legal action and same was supplied to them on 20.04.2022. Upon granted with the necessary documents, the applicant filed this application on 16th May, 2022 for orders as contained in the chambers summons. 2 When this application was called on for hearing, the applicant was enjoying the legal services of Mr. Noel Sanga, learned advocate, and on the other hand, the respondent was enjoying the legal services of Mr. Kyariga N. Kyariga, learned advocate. Mr. Sanga told the court that the instant application is for extension of time and that the reasons are as contained in the affidavit in its support of the application. The learned advocate for the applicant prayed to adopt the contents of the affidavit. In the affidavit, the reasons advanced for grant of this application are grant of Tshs. 1,000,000/= for which money was not pleaded and justified, transport costs which were not proved and that the application was made diligently without delay and that the reference had big chances of success in case allowed. Mr. Sanga orally arguing the application told the court that basically this application is akin to be granted on two reasons, one is on overwhelming chances which was due to granting the instructions fees and transport costs which were never pleaded and proved by decree holders. In support of this point cited the case of OMARI SHABAN NYAMBU vs. DODOMA WATER AND SEWERAGE AUTHORITY, CIVIL APPLICATION NO. 146 OF 2016, DSM (CAT) (UNREPORTED) whereby it was held that one of the 3 issues of ownership was not determined and proceeded to grant the application so that the higher court can look into the matter. The second reason was that the delay which the applicant took to file this application was 22 days, which, according to Mr. Sanga, was normal delay and not inordinate delay. In support of this point, the learned advocate cited the case of AUGUSTINO MKWEJI vs. PATRICK MWAHOJO, MBEYA, (HC) (UNREPORTED) in which the court found that 13 days of delay were found to be not inordinate delay in the circumstances and consequently extended time. On the other hand, Mr. Kyariga opposing the application prayed to adopt the contents of the counter affidavit. The learned advocate further argued that for this court to extend time under order 8(1) and (2) of the Advocates Remuneration Order, 2015, the applicant is legally bound to show sufficient cause why he failed to file the application in time warranting extension. Mr. Kyariga pointed out that the overwhelming chances of success, is not illegality and no way at this point it can safely be said the intended reference has overwhelming chances of success. To support his point cited the case of WAMBERE MTUMWA SHABENE vs. MOHAMED HAMIS [2018] TLR 39 CAT in which it was held the alleged 4 illegality, if any, has to be obvious and apparent in the record and not which is involving reading through long process. According to Mr. Kyariga, the alleged overwhelming chances of success are not open but it involves reading through the judgement. Mr. Kyariga distinguished the case of OMARI (supra) in that, the point in issue was not determined while here it is not the case at all. On the second point of delay, brief to the point Mr. Kyariga pointed out that there is counter evidence that the ruling and drawn order were ready by 04.04.2022 and they collected the same. Therefore, the argument that they made follow ups is not supported by any evidence at all. Not only that but also that is not a legal requirement that a ruling has to be attached when making a reference. On the above reasons, Mr. Kyariga concluded that the delay was purely caused by negligence, which cannot be a ground for extension of time. According to Mr. Kyariga, much as the applicant has admitted to be late for more than 22 days, this is other than inordinate delay that cannot be excused by this court. This application was filed on 16.05.2022 without accounting for delay of each day and invited this court to dismiss it with costs. 5 In brief rejoinder, Mr. Sanga argued that their argument is not on illegality and the case cited by Mr. Kyariga is distinguishable but rather on overwhelming chances of success and due diligence. This marked the end of this hotly contested application for extension of time. Having carefully listened and considered the rivaling arguments of the learned advocates, the issues for determination are two; one is, whether the grant of Tshs. 1,000,000/= and transport costs of Tshs.375,000/= were lawfully granted without any prayer and as such demanding an intervention by this court in reference. Two, is whether the applicant acted diligently by filing the instant application after elapse of 22 days from the date of the ruling. I will start with the 2nd issue then come to the first one. Let me put it clear that it is trite law in our jurisdiction, even without citing any authority, that whoever comes to court for extension of time must, among others, account for each day of delay and advance good or sufficient reason or cause why he did not file the application within the prescribed time. Another point worthy to state is that the court will always act judiciously in 6 exercising the discretion to grant an extension or to refuse to grant the same. The reasons, among others, are to avoid entertaining any move which is aimed at delaying or obstruct the cause of justice. With that in mind and back to the instant application, and in particular, to the second issue on the applicant acting diligently, both considered carefully, with due respect to Mr. Sanga, apart from writing a letter presented to court on 08.04.2022 asking for ruling and extract order, no evidence was advanced to show that there were several follow-ups that ensued from there to the date when he came to court to collect them for his action. Nevertheless, I further noted that the said letter was received by the court on 08.04.2022, the registrar, and in particular, Hon. Minde was drawn to her attention and she being the Taxing Officer, in my view, was obliged to reply to the letter and inform the applicant' counsel that the said ruling and drawn order is ready since 04.04.2022 as supplied to the respondent. Why the Taxing officer/ Registrar became silent is not well explained by both counsel for parties. Prudence and practice of this court is to reply to every formal communication without any excuse because it helps much to have double standard. Much as this was not done, I hereby find that delay to collect the ruling and order was not only 7 attributable to the applicant but to the court which failed to reply to the formal prayer that was received within time. On the above reasons, I find that failure to collect the ruling till up to 20.04.2022, in the circumstances of this application was mainly contributed by the court and as such I waive the days from the date of ruling to the date of collection on 20th April, 2022. Now counting from 20th April, 2022 to 16th May, 2022 when the instant application was filed is more than 26 days. This is, in my own strong considered opinion, is not a normal delay but an inordinate delay that the applicant has failed to account for. The applicant under normal circumstances was to file her application within twenty one days, but it took her more than twenty one days to file the application. This court cannot condone the negligence and inaction of the part of the applicant for failure to account for each day of delay beyond the statutory period for the second time. In the circumstances of this application, this ground is baseless and is of no help on the part of the applicant. I, therefore, totally agree with Mr. Kyariga that the applicant utterly failed to account for each day of delay even after being supplied with the ruling and order of the court subject of this application. C 8 Before going into the first issue, given what I have observed above, I hereby advice and direct the Deputy Registrars in this Division to reply to every formal request to avoid any confusion as shown in this application. This takes me to the first issue whether the grant of Tshs. 1,000,000/= and transport costs of Tshs.375,000/= were lawfully granted without any prayer and as such demanding an intervention by this court in the anticipated reference. Having carefully considered the rivaling arguments on this issue and having as well visited the provisions of the Advocates Remuneration Order, 2015 and the proceedings in Taxation Cause No.37 of 2019,1 find this point attracts and raises a very legal intricacy worth for the determination of this point. In this application, Mr. Sanga's arguments were that the grant of Tshs. 1,000,000/= as instructions fees for prosecuting the Taxation Cause in dispute was granted while they were not part of the bill of costs presented and urged this court to grant extension so that the applicant can be given a chance to pursue the point in this court by way of reference. After going through the taxation proceedings and ruling of the court, I noted that, indeed, the grant of the same was made without being pleaded as argued by Mr. Sanga. In the circumstances, the arguments 9 that the reference stands overwhelming chances of success cannot be overlooked. The arguments by Mr. Kyariga on illegality as replied by Mr. Sanga, was misplaced because overwhelming chances of success is different from illegality though the reasons may overlap. In the fine, therefore, on the reasons of overwhelming chances of success of the reference, I am inclined to grant this application. The applicant, therefore, is given 14 days within which to file a reference. Costs of this application be in the cause. It is so ordered. Dated at Dar es Salaam this 16th day of September, 2022. J ! //)» s.'m. magoiga JUDGE 16/09/2022. io