firoz haiderali jessa 2 others vs diamond trust bank kenya ltd 2022 tzhccomd 253 30 august 2022

IN THE HIGH COURT OF TANZANIA (COMMECIAL DIVISION) AT DAR ES SALAAM REFERENCE NO. 1 OF 2022 (Arising from Miscellaneous Commercial Cause No. 96 of 2021) BETWEEN FIROZ HAIDERALI JESSA..................................... lst APPLICANT SALIM HAIDERALIJESSA..................................... 2nd APPLICANT NASIRI HAIDERALI JESSA................................... 3rd APPLICANT AND DIAMOND TRUST BANK KENYA LIMITED............. RESPONDENT Last Hearing Date: lst August, 2022 Date of Ruling: 3O01 August,2022 RULING MKEHA, J: Through Mr. Laurent Leonard Learned advocate for the respondent a preliminary point of objection has been raised to the effect that, the application for reference is time barred. According to the learned advocate, whereas the Deputy Registrar's ruling was delivered on 24/01/2022, the 1| Page application for reference indicates that it was presented for filing on 16/02/2022 which was the 23rd day. According to the learned advocated, the application ought to have been filed within twenty one (21) days from the date of delivery of decision for taxation. Mr. Ally Hamza learned advocate for the applicant submitted in reply that he electronically filed the chamber application on 14/02/2022 which was the last date. There was no evidence to that effect. He also submitted that the applicant had a duty to prove that indeed, the application was filed out of time. When the learned advocate for the respondent rose to rejoin, he made reference to the last page of the chamber application which clearly indicates that, the application was presented at this court's registry for filing on 16th day of February, 2022. The only determinative issue is whether the application was filed out of time. It is true that, any party aggrieved by a decision of the Taxing Officer may file reference to a Judge of the High Court. Such a reference should be instituted by way of chamber summons supported by an affidavit and has to be filed within 21 days from the date of the decision. As 2| Page correctly submitted by Mr. Laurent Leonard for the respondent, the applicant's own chamber summons indicates to have been filed on 16/02/2022 against a decision which had been delivered on 24/01/2022. There was no assertion from the applicant's advocate that court officials at the registry wrongly inserted the 16th day of February 2022 as the date of filing. The learned advocate merely submitted without proof that, the chamber summons had been electronically lodged on 14/02/2022. Counting from 24/01/2022, it is clear that, the 16th day of February 2022 was out of the period of 21 days within which a person aggrieved with the decision of the Taxing Officer is permitted to lodge an application for reference. The applicant in this case, did so out of time without seeking and obtaining an order for extension of time to do so. I therefore hold the respondent's preliminary point of objection to be meritorious. The same is sustained. Consequently, the application is stuck out with costs. DATED at DAR ES SALAAM this 30th day of August 2022. 3 | Page JUDGE 30/08/2022 Court: Ruling is delivered in the presence of Mr. Ally Hamza learned advocate for the applicant. 4| Page