20170818 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ·(IN THE DISTRICT REGISTRY OF AR~SHA) AT ARUSHA MISC. CIVIL APPLICATION NO. 247 OF 2016 (Arising from Taxation Cause NO. 105 of 2016 in the High Court of Tanzania at Arusha) LILIAN JOSEPH LOOLOITAI. ... ........................... ~ .. 1 5T APPLICANT EVARIST MOHAMODU MAJURA@ MOHAMMOUD MAJURA .....................................•.. 2No APPLICANT CORDS LIMITED ..• ■ •••• ■ ••••••••• ■ I ■■■■■ I ■■ •• I ■ 111 ■■■ I ■ ••• ■■■■ 11 ■■■ 3RD APPLICANT VERSUS THE REGISTERED TRUSTEED OF COMMUNITY ltESEARCH AND DEVELOPMENT SERVICES (CORDS) •..•.••••• ~ ••••••• RESPONDENT 24/07/2017 & 18/08/2017 RULING A.K. RUMISHA, DR.: The application is made under Section 95 of the Civil Procedure Code, Act, Cap. 33 R.E 2002 and any other enabling provisions of the law for orders that; i. This Honourable Court be pleased to set aside a dismissal order of this court arising from Taxation Cause No. 105 of 2016 dated 5th day of December, 2016 and the Taxation Cause be fixed for taxation/hearing forthwith. ii. Costs of this application be in the cause .. iii. Any other relief this Honourable Court may deep fit to grant. 1 The application is supported by an affidavit of Jaffary Suleiman, Advocate for the Applicants. Mr. William Ernest, counsel for the Respondent responded by filing a counter affidavit and a notice of preliminary objection. In the said notice of preliminary objection, two points are preferred; i. That the application is hopelessly incompetent for non- citation of the specific enabling provision of the law to move the court. ii. That the supporting affidavit is bad in law as; a) The Affidavit is incurably defective for hot and being dated. b) The jurat is bad in law as it does ·not and or specify the date it was attested by the commissioner for oaths. c) The verification clause is bad in law as the deponent failed to state sources of his infor1J7ation contained in the affidavit. On 12/07/2017, it was ordered that the objection preferred by Mr. William, be argued by written submissions. To this, I should extend my sincerely appreciation to both Mr.· William, Advocate and Mr. Boniface, Advocate for their respective resou_rceful submissions. I have been greatly r assisted by these submissions in the preparation of ~his ruling. ' In support of the first point of objection, it was submitted that the applicants in their application cited Section 95 of the Civil Procedure Code 2 I [Cap. 33 R. E 2002] which is a general provision that .cannot move the Court to set aside its dismissal order which dismissed Ta.xation Cuuse No .. 105 of 2016 for non-appearance of the applicants. According to Mr. William, an application to set aside dismissal order in the present matter would have been made under Ortjer IX Rule 9(1) of the Civil Procedure Code [Cap. 33 R.E. 2002]. Although this order deals with suits, Mr. William was quick to point out, that it would have been wiser to rely on it than the general provision of the law. Citing the case of Shaku Haji Osman Jame Vs Attorney General and two others Misc. Civil Application No. 1 of 1997 TLR 2002, where it was held that; "... the inherent prayers of the court provided fn Section 95 of the Civil Procedure Code are invoked in situations where the court has authority or jurisdiction to deal with the matter and there is no specific law in place'~ ! Mr. William, Advocate submitted further that a~ the Applicants cited as wrong provision of the law, yet in terms of Order ?(1) of the Advocates Remuneration Order GN No. 264 of 2015 it is provided that however is aggrieved by the decision of the Taxing Master should challenge it by a reference to the Judge and not otherwise. Acc~rding to Mr. William, Advocate, the dismissal order in Taxation Cause :No. 105 of 2016 was decision which should have been challenged by a.· reference and not by moving the court to set aside its dismissal order. It is also submitted that there is unbroken chain of authorities which are to the effect that failure to cite a specific sectiqn or subsection or none citation of the enabling provision of the law ,renders the application 3 I hopelessly incompetent. Mr. William cited the Case of Ms. Ilabila Industries Limited and Two others Vs Tazania Investment Bank and Another, Court of Appeal at Dar es Salaam; Civi,I Application NO. 159/2014 (un reported), it was held; "... in the present Application learned counsel for the Applicants cited a wrong provision of the law which is reflected in the Notice of Motion. Where in the CITIBANK case cited supra, the Applicant did not cite a specific subsection under Section 4 of the Appellate jurisdiction Act; 1979 as amended. In neither case, could the court derive jurisdiction from erroneously cited provision of the Jaw'~ Since the Court is unmoved for non-citation of the enabling provision hence night follows day, it is submitted by Mr. William Advocate, the present application should be dismissed with costs. In his reply Mr. Boniface, stood to his guns that the application was properly before the Court. Mr. Boniface, of course, like a good soldier, submitted that the submissions in relation to the first point of objection are misconceived and misleading. Order IX Rule 9(1) of the CPC, Mr. Boniface submitted, is applicable to the suit when it is set down for hearing. However, it is submitted, the provisions of Civil Procedure Code .do not cover an application of Taxation Cause in nature as the same is governed by the Advocates Remuneration Order, which the entire order does not cover the situation to restore a taxation cause dismissed. 4 , I i Mr. Boniface went further and attached the dismissal order. He submitted at page 4 thus; "... when parties are absence (sic} the taxing officer shall proceed ex-parte with taxation and not to dismiss the taxation cause'~ Further, it is submitted; "... The order does not give room.·to dismiss the Bill of Costs in the event either or both parties are absent ... The Taxing Officer on gh day of December 2016 was mandatory required to proceed ex-parte with taxation ... There is no creature under Advocates Remuneration Order 2015 as dismissal in taxation Cause as in other pieces of legislations... " Since the scenario is not covered under the Advocates Remuneration Order, 2015 and there is no any provision which can be used to restore (or set aside dismissal order, then Mr. Boniface submitted, Section 95 of the ' CPC is the relevant provision. Mr. Boniface cited the Case of Saku Haji Osman Juma Versus Attorney general and two others cited by Mr. William to show that Section 95 is applicable when there is not specific law. Further, he cited the case of Aero Helicopter (T) Limited Vs F. N. Jansen (1990) TLR 142 where it was held; "It is to be remembered that the inherent power of the High Court under Section .95 of the Cod~ is exercisable ' ' I s I • I ; were the law has made on provision govern_ing the particular matter at hand Mr. Majithia, therefore,; may be justified in submitting that the High Court has inherent jurisdiction here because, as I how observed, the code makes no specific provision for a stay of execution by the High Court'~ As such, Mr. Boniface submitted that the objection ,has no merit and should be dismissed forthwith. ! ' This ground of objection is interesting. To make a meaningful sequence of events, I find it prudent briefly but p~ecisely to give a background that tugged of this embattled application. The Applicants herein filed taxation Cause No. 10,'5 of 2016 where a ' ' total of Tshs. 20,840,000/= was asked as costs to_: defend Misc. Civil Application No. 110 of 2016 and Civil Case No. 20 of 20:16. On 05/12/2016, neither Mr. Boniface nor Applicants did appear, thus M:r. William prayed to have it dismissed. The same was dismissed for want o(prosecution. Aggrieved by the dismissal Order, the present ~mbattled application was filed. Now, Mr. William is challenging the same; that it was brought under a wrong provision of the law. As shown, the application is made under se,ction 95 of the Civil Procedure Code Act, [Cap 33 R.E 2002]. The said section provides; "... Nothing in this Code shall be deemed to limit or otherwise affect the inherent power o;, the court to 6 I make such orders as may be necessary for the, ends of justice or to prevent abuse of the process of the court." This section, as submitted by both Counsel, covers situations where there is no a specific or rather a relevant provisions in the Civil Procedure Code. However, the present application originates form a taxation cause under the Advocates Remuneration Order, 2015. Taxation Cause, as can be gathered from Order 2 of the Advocates Remuneration Order, 2015 are governed by the said order. The said law provides how taxation are conducted and remedies for a party aggrieved by a decision of taxing officer. According to Mr. Boniface, he resorted to Section 95 of the CPC because the enter Order is silent as to what happens in Case of dismissal. Indeed, Mr. Boniface attacked the decision to dismiss the Taxation Cause as without legal justification. I have few observations; First, if we were to buy Mr. Boniface that the Civil Procedure Code is applicable in Taxation Causes, then the same Section 95 would give me powers to dismiss the same taxation for want of prosecution. I do not agree that if parties are absent then the matter should be adjourned or taxed in their absence. According to Order 58 of the Advocate Remuneration Order, vouchers should be produced at the hearing. Now, if parties are absent, how can such vouchers be produced? If vouchers cannot be produced, how can a Taxing Officer proceed with Taxation to assess fair and reasonable costs? 7 If the matter h~s to be adjourned, as suggested by Mr., Boniface, and next dates parties do not appear, for how long should the proceedings be adjourned? Till the end of days? I do not think if the law hac:1' intended such absurdity. Second, if the law does not provide for dismissal of the Taxation but a part is aggrieved by the decision, what is the remedy? To this, I cannot agree with Mr. Boniface that the remedy is to fish for rem~dies provided in other laws. In my opinion, instead of attacking my decision before me while I cannot sit as appellate court of my own decision, Mr. Boniface should have resorted to proper ways of challenging th~ decision of the Taxing Officer. To this, I would comfortably join hands yvith Mr. William's views. I have visited the Advocates Remuneration Order, 2015, I find no provision that provides that in case of difficulty or dGubt then the Civil Procedure Code should be made applicable. I am of the strongest opinion that if it was intended to use the Civil Procedure Code iin taxation matters, then the Order would have been so clear to that effect. This is because, there are many rules of the procedure that provide sd. Such Rules include the High Court (Commercial Division) Procedure Rules, the District Land and Housing Tribunal Regulations and the Labour Court Rules. At any rate, the law applicable in taxation matters is the Advocates Remuneration Order, 2015 and not the Civil Procedu~e Code Act. The Code and Order are two distinctive laws. I do not think if there is are law that is subordinate to the other. In the absence of clear pfovisions of the law, to make application of Civil Procedure Code Act to T;axation Proceedings, I / B I hesitated to find that the Civil Procedure. Code Act can~ot be made automatically applicable. ' The Advocates Remuneration Order, _i2Q15 is, in my,' opinion, self- sufficient It has provisions on how to deal with unamusihg decision of Taxing Officers. It is for the reasons therefore I find that S~ction 95 of the CPC is not applicable here. ;.' ! ' Wrong or improper citation of the· relevant provision of the law renders the application incompetent. As ~eld in unbrokeri chain of cases both in the High Court and the Court of Appeal, steering position is that . ' articulated in the popular Court of Appeal case of China Henan International Cooperation Group Vs Salvand ~wegasira, Civil Revision No.22 of 2005; "...An error to site the correct provision is not a technical one but a fundamental matter which goes to the root of the matter and once the application is based on wrong legal foundation, it is bound to collapse... " This point suffices to dispose of this matter. Withput addressing other points of objection, I hereby strike out this application · Dated at Arusha this 18th Day of August 2017. {S_GD) A.K. RUMISHA DEPUTY REGISTRAR 18/08/2017 9 •.,"t >r•·C ~· rr·-~·.-· t ··" . I hereby certify this to be a true copy of the original. \ I A.K. RUMISrtA l DEPUTY REGISTRAR 18/08/20!11 l j 10