HUSSEIN SALIM

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) COMMERCIAL CASE NO.156 OF 2023 (Arising from Commercial Reference No. 20 of 2022) BETWEEN HUSSEIN SALIM BALKHER........................ PLAINTIFF VERSUS ALMASIA ALMUTAHIDA COMPANY LTD................. st DEFENDANT 1 IBRARHIM ADAM IDRIS........................................... 2nd DEFENDANT RULING Date of last order: 28/05/2024 Date of ruling: 21/06/2024 AGATHO, J.: This ruling stems from the defendant's oral application for security for costs. The plaintiff protested the application. The hearing of the application was conducted on 28/05/2024. In terms of legal representation, parties engaged legal services of learned counsel. While Abdulfattah A.A Al-Bakry. represented the plaintiff (respondent), Christopher Wantora, Advocate appeared for the defendants. i Mr. Wantora for the defence began his submission by submitting that the oral application was brought under proviso of Order XLIII and Order XXV Rule 1(1) and Rule (2)(1) of the CPC praying for security for costs to be furnished by the plaintiff because he is Saudi Arabian and as pleaded in the 1st paragraph of the plaint. The defendant counsel submitted that the plaintiff is a foreigner. He owns nothing in Tanzania. In that regard Mr Wantora prayed that the plaintiff be ordered to deposit security for costs of TZS 31,500,000/= being calculated under item 7 of the 11th Schedule of the Advocates Remuneration Order of GN No. 256 of 2015 allowing charging instruction fee between 3% to 7% for the claim which is above TZS 150,000,000/= and less TZS 400,000,000/=. The defendant's counsel stressed that the plaintiff does not own any business or property in Tanzania. He asked the court to grant the defendant's prayer. Al-Bakry for the plaintiff resisted the application. He submitted that the cited the provisions relating to security for costs that the plaintiff is a foreigner, uses the word "may" and not shall. It was his view that the same is under the discretion of the court. It is not mandatory requirement. The plaintiff's counsel lamented that the defendant intends to punish the plaintiff who has a genuine claim against him. He added that the defendant did not dispute the genuineness of the claim in her WSD. Mr. Al-Bakry cautioned that 2 if the defendant application is granted that will restrain the plaintiff from getting his money claimed in plaint if he fails to deposit the security claimed. The plaintiff's counsel reiterated that the grant of security for costs is court's discretion as the word used in "may." Regarding proof, Mr. Al-Bakry submitted that the defendant has not given any proof relating to the claimed security of TZS 31,500,000/= as instruction fee paid to his lawyer. The counsel for the defendant has cited the provision without providing any proof to the payment. The plaintiff's counsel submitted that though the plaintiff does not have business in Tanzania, this application shall not bar the plaintiff's right against the defendant because he has lost more USD 35,000. Mr. Al-Bakry went on submitting that if the application is granted it will stretch him (plaintiff) to the point that he is still under obligation to pay more money. Also, this court should not consider security for costs as penal measure against plaintiff as stated in the case of Maasai Wanderings and Two Others v Viorica Ilia and Two Others, Misc. Application No. 19 of 2021 HCT at Musoma which also referred other cases. As closing remarks, the plaintiff's counsel prayed that the application should be rejected and he referred to Article 107 of the United Republic of 3 Tanzania Constitution that substantive justice should prevail. He added that and if the application is granted, he prayed for court's leniency so that the plaintiff is able to pay and not the excessive amount as prayed by the defendant. Mr. Wantora rejoined on the submission about the use of the word "may" in the provision governing security for costs. It was his suggestion that this word depends on the circumstances of the case. He clarified that the case before the court is a commercial case not a normal case. And the ingredients provided in the cited provision has two conditions: (1) It is that the plaintiff shall be a foreigner, and this fact is not disputed. (2) That the plaintiff must have nothing he is owning in Tanzania. That fact too is not disputed. He submitted that they have met those two conditions. The defendant's counsel disputed the claim that their application intends to punish the plaintiff. He rejoined this being a commercial case the parties knew that anyone who will lose will have to face the obligation to pay costs. In that circumstance the plaintiff cannot hide himself that he will not be able to pay the security for costs. Regarding the submission that there is no proof that the money claimed as security for costs has been paid to the advocate. Mr. Wantora submitted 4 that the application intends to protect the applicant (defendant) if the plaintiff loses the case not for legal representation only as it includes other expenses. Mr. Wantora submitted that it is a requirement of the law that the plaintiff should furnish security for costs. In our side there no way we are stretching the plaintiff as submitted by the plaintiff's counsel. As for the case of Maasai Wandering (supra), the defence counsel rejoined that this case is distinguishable from the case at hand on the following reasons: that case was normal civil case and not a commercial case. And the reasons regarded in that case was financial capability of the parties involved in that case. He submitted that filing a case before this court has different criteria from the case cited. He argued that being businessmen, the parties to the case at hand are not poor that is why the filed it in this court. Mr. Wantora rejoin further on the submission about Article 107 of the United Republic of Tanzania Constitution on substantive justice. He submitted that applying the same Article in the case at hand, still it makes substantive justice for the defendant to claim for security for costs in order to be reimbursed in case the plaintiff fails to prove his case. My The court has listed to the submission of the parties on the application for and against grant of security for costs. While the application for security of 5 costs requires proof that the plaintiff resides abroad and has not asset within the jurisdiction of the court, it is undisputed that the plaintiff is Saudi Arabian and as pleaded in the 1st paragraph of the plaint. He is therefore a foreigner who does not own anything in Tanzania. By virtue of Order XXV Rule 1(1) and Rule (2)(1) of the CPC the plaintiff ought to be ordered to deposit security for costs. But it is important to state here that security for costs is not meant to punish a party to the suit. It is prescribed to ensure that the defendant is reimbursed for the expenses he has incurred or he might incur in litigating the suit. That being the position, the amount to be awarded as security for costs is not haphazardly imposed. The court is required to give justification as to how the said amount was reached. The applicant must justify his claim as it was held in First Assurance Company Limited v Dimension Data Solutions Limited and Another, Commercial Application No. 149 of 2022 HCCD at DSM. Back to the case at hand the applicant (defendant) claims TZS 31,500,000/= being calculated under item 7 of the 11th Schedule of the Advocates Remuneration Order of GN No. 256 of 2015 allowing charging instruction fee between 3% to 7% for the claim which is above TZS 6 150,000,000/= and less TZS 400,000,000/=. Mr Wantora submitted that the amount is claimed because the plaintiff does not own any business or property in Tanzania. To court's dismay Mr. Wantora has failed to given evidence to support the claim of TZS 31,500,000/=. He banked on item 7 of the 11th Schedule of the Advocates Remuneration Order where he claims 3% from the suit value as instruction fee. But there is no evidence that he has been paid TZS 31, 500, 000/= as instruction fee. To award security of costs to that tune without any evidence will be unfair and miscarriage of justice. The defendant has not told the court that there will be witness expenses to be incurred. The amount claimed as security for costs in my view is speculative. Such practice cannot be allowed in this court which is a temple of justice. In the end, and since the plaintiff is a foreigner without any assets or business in Tanzania, I find it just to award TZS 15,000,000/= to be deposited by the plaintiff as security for costs. That said amount shall be deposited within 21 days of the date of this ruling. Considering the circumstance of this application and the fact that the parties still have the main suit pending in court, it is fair that no order as to cost is given. 7 Order accordingly. DATED at DAR ES SALAAM this 21st Day of June 2024 JUDGE 21/06/2024 Date: 21/06/2024 Coram: U.J. Agatho, J For Plaintiff: Abdulfattah A.A Al-Bakry Advocate For the Defendant: Al-Bakry h/d Christopher Wantora, Advocate B/C: E. Mkwizu & Nassoro Court: Ruling delivered today 21/06/2024 at 09:00 A.M.in the presence of Abdulfattah A.A Al-Bakry, advocate for the plaintiff, also holding brief of Christopher Wantora, advocate for the defendant. U. J. AGATHO JUDGE 21/06/2024 8