masumin print ways and stationaries ltd vs salim aziz 2012 tzhccomd 5 30 october 2012

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM REFERENCE NO. 100 OF 2005 MASUMIN PRINTWAYS AND STATIONERIES LTD....... APPLICANT VERSUS SALIM AZIZ................................................................ RESPONDENT RULING. BUKUKU, J. The applicant herein filed a Chamber Application in this court on 18th April 2012, which has been preferred under Rule 6 (1) and Rule 5 (1) of the Advocates Remuneration and Taxation of Costs Rules, G.N No. 515 of 1991, seeking for the following orders:- (i) This honorable court be pleased to grant the Applicant extension of time within which it can file its objection against the decision and orders of the Taxing Master of this Court (Hon. Kahyoza) made on the 8th day of February, 2008, in Commercial Case No. 100 of 2005 out of time; (ii) This honorable court be pleased to quash the decision and orders of the Taxing Master of this court (Hon. Kahyoza) in i (iii) Commercial Case No. 100 of 2005 made on the 8th day of February, 2008; (iv) Costs of this application be provided for; (v) Any other relief(s) this honorable court may deem fit to grant. Two points of preliminary objection have been raised by the respondent herein to the effect that; (a) The preliminary objection intended to be raised is contrary to the provisions of section 19 of the Civil Procedure Code Chapter 33 R.E2002. (b) The cited provisions of the law in the chamber summons cannot legally move the court to grant the orders sought. When the matter came for hearing, the Applicant was represented By Mr. Masaka, Advocate, and the Respondent was represented by Mr. Mutongore, Advocate. Submitting in support of the preliminary objections, Mr. Mutongore, averred that, the first preliminary objection is based on Section 19 of the Civil Procedure Code under which, the intended objection against the decision of the taxing officer, ought to have been raised in the court of first instance, and at the earliest opportunity. He further submitted that, this being a case about bill of costs which was heard by the Registrar Commercial Court as the taxing master, then this court should be taken to 2 the Rules which have a specific provision which is Section 6(1) empowering the court to extend the period of time, and thus, since there is a specific provision then the ruling of Mruma, J is distinguishable, and therefore, this court is not functus officio. In conclusion, Mr. Masaka submitted that the two points of preliminary objection are technicalities which must be discouraged by this court since they are frivolous and vexatious. He cited the case of Samson Ngw'aiida V. The Commissioner General Tanzania Revenue Authority, C.A NO. 86/2008 (unreported), where it was held that, the court shall have regard in doing justice in a particular case, not to be tied up with undue technicalities. The counsel prayed to the court to overrule the objections with costs. Rejoining, Mr. Mutongore for the respondent submitted that, section 19 of the Civil Procedure Code does not deal with jurisdiction only. He further submitted that, the two rules cited in the application are rules of procedure, and thus it is not the law that will enable the court to grant an application for leave, without a mention of the Law of Limitation. The counsel insisted that, this is what was stated in the Ruling of Mruma, J. Submitting further Mr. Mutongore averred that, there is no provision of the Civil Procedure Code or The Law of Limitation which was cited, hence the objections are genuine, and therefore, the application be dismissed. 5 Having gone through the submissions of both counsels for the parties, Let me now turn to the merits of the objections raised. In the course of their submissions, two issues cropped up which I will address them first before tackling the preliminary objection. In his submission in support of the preliminary objection, Mr. Mutongore said that, since the previous application was struck out by Hon. Mruma, J, this court is functus officio. In rebuttal, Mr. Masaka contended that, the striking out of the previous application gave room for re-application on the part of the applicant and thus, the doctrine of functus officio does not apply. I think Mr. Masaka is right here. The normal principle of law is that, once a judgment is pronounced or order is made, the court becomes functus officio (ceases to have control over the matter) and has no jurisdiction to alter it. In the case of BIBI KISOKO MEDARD K MINISTER FOR LAND, HOUSING AND URBAN DEVELOPMENT AND ANOTHER, (1983) T.L.R 250, (HC), it was held inter alia that; "in the matter of judicial proceedings once a decision has been reached and made known to the parties, the adjudicating tribunal becomes functus officio Such judgment or order must be final, that is, it must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit. "Rights" here means the substantive rights. Normally, interlocutory orders on matters of procedure which do not decide the substantive rights of the parties are not decrees, for example: an order 6 striking out the application for want of prosecution or for non appearance or for other reasons. It is worth noting that the Court of Appeal of Tanzania had a chance to state as to what amounts to a dismissal. In the case of NIC TANZANIA LIMITED AND CHC V. SHENGENA LIMITED, Civil Appeal No. 20 of 2007 the Court held that, dismissal would imply that the matter has finally been determined and generally after hearing merits of the arguments. In the former application before my learned brother, Mruma, J, the application was struck out for citing wrong provision (as per pg 4 of the said ruling). In that case, can it be said that the order issued by Hon. Mruma, J, decided the substantive rights of the parties? I think no. The order did not judicially deal with the matter in dispute rather it was merely procedural and by striking out the application, the applicant was at liberty to re-apply again to which he did. I thus hold that this court is not functus officio as the counsel for the respondent seems to suggest. Now, back to the preliminary objection raised. With regard to the first preliminary objection, it is the contention of the counsel for the respondent that the law requires objections to be brought at the earliest time and insisted that the applicant ought to have brought the reference after the ruling of the taxing master but he did not do so neither raise the objection. Mr. Mutongore cited Section 19 of the Civil Procedure Code, Cap 33, R.E 2002 as being the basis of his first objection raised against the applicant's application pending in this court. On the other hand, Mr. Masaka for the 7 applicant counter submitted that, section 19 of Civil Procedure Code talks about issues of jurisdiction which ought to be raised at the earliest time. He went on to submit that, the application filed in court is not objecting the jurisdiction of the taxing master, rather, what is being disputed is the decision made by the taxing master. Section 19 of the Civil Procedure Code states as follows: No objection as to the place of suing shall be allowed by any appellate or revisiona! court unless such objection was taken in the court of first instance at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice, (emphasis mine). The mandatory provision as envisaged under section 19 of the civil procedure code clearly provides for objections as to jurisdiction. It is well settled that, the objection as to local or territorial jurisdiction of a court (place of suing) does not stand on the same footing of a court to try the case. Competence of a court to try a case goes to the root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a court can be waived and this principle has been recognized by this section of the Civil Procedure Code. Before raising an objection as to the place of suing, one is required to satisfy three conditions which are as follows: (i) the objection must be taken in the court of first instance; (ii) the objection 8 must be taken at the earliest possible opportunity i.e before the issues are settled; and (iii) there has been a consequent failure of justice. All these three conditions must coexist. As far as territorial jurisdiction and pecuniary jurisdiction are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. Looking at the application itself filed in this court on 18th April, 2012, which is the gist of the preliminary objection raised, it is apparent that the applicant is trying to move this court to grant him extension of time within which the applicant can file an objection against the decision and orders of the taxing officer of this court dated 8th February, 2008, in Commercial Case No. 100 of 2005. After going through the said application, can one say that the applicant is seeking to dispute the jurisdiction of the taxing officer? I find it not to be the case here. By the nature of the application, it is obvious, as rightly submitted by Mr. Waisaka that, section 19 does not apply here. This section as already intimated, relates to objection as to the place of suing. The objection is not on jurisdiction as the respondent would wish this court to believe. Under such circumstances, this point has no legs to stand on. It is dismissed. Coming to the second point of the preliminary objection, that is, the cited provisions of the law in the chamber summons cannot legally move the court to grant the orders sought. In his application, counsel for the 9 applicant made reference to rule 5(1) and 6(1) of the Advocates Remuneration and Taxation of costs Rules. GN. No. 515 of 1991. Rule 5 (1) provides: "Where any party objects to a decision of the taxing officer, he may refer his objection for the decision of a judge of the high court." And Rule 6(1) provides: "The high court may by order extend the time fixed under rule 5". The law is very clear as to the remedy for a dissatisfied party, as far as taxation proceedings are concerned. This is embodied in Rule 5 (1) of the Advocates Remuneration and Taxation of costs Rules (supra). My understanding of this Rule is that, it provides for the procedure to be followed when a party wishes to object to a decision of the taxing officer. It does not end there. In case there is failure of the party to refer to objection within the prescribed time as provided under Rule 5 (2), that is within 21 days after the issue of the certified copy of the taxing officer's decision, that party can resort to Rule 6 (1), which gives the court powers to extend the time within which a party who wishes to challenge the decision of the taxing officer's decision, may do so. This Rule however is silent as to the time frame within which a party may apply for that extension of time within which to file his application, io and this is where the law of limitation comes into play, as correctly observed by my brother Mruma, J. in his ruling (supra). Considering that the applicant herein is seeking an extension of time within which he can file its objection against the decision and orders of the taxing officer, the proper law under which the application could have been brought in order to move the court is the Law of Limitation Act Cap. 19 RE 2002 and in particular section 21 of part III to the schedule to that law. The said provision states: "21 - Application under the civil procedure code, the magistrate's courts Act or other written law for which no period of limitation is provided in this Act or any other written law........... sixty days", (emphasis mine). The limitation for such an application for extension of time is sixty days. In the present application, the applicant did not cite the above law which is the enabling provision in such an application. It is this provision which will move the court in order to establish whether the application is proper before it or not. Under such circumstances, I hold that, the applicant has failed to move this court by not citing the enabling provision of the law. In his submission, Mr. Masaka learned counsel for the applicant averred that, the two points of preliminary objections are technicalities which must be discouraged by this court since they are frivolous and ii vexations, citing the case of Samson Ngwalida V. the Commissioner General Tanzania Revenue Authority, CA No. 86/2008. (Unreported). With greatest respect to Mr. Waisaka, the issue that the two points of preliminary objection are technicalities which must be discourage by this court is unfounded. I am alive with the case of Samson Ng'walida (supra) but I think each case must be considered on its own merit as has been said time and again. I wish to remind Mr. Masaka that, rules of procedure are there to be obeyed. I think it is erroneous for one to down play the role of court rules in the administration of justice, as if they are of no substance. A rule of practice however technical it may appear, is almost always based on a legal principle and its neglect may only lead to disregard of the principle involved. If at all I was to go by Mr. Masaka's submission that this court should disregard technicalities, then it means one could easily file an application without having regard to the enabling provision, and the court will entertain it without being properly moved. I don't think that is the case. My understanding is that, the court must first be properly moved before it acts on an application. Much as it is true that there is no specific requirement in law that a particular order and rule under which an order is sought be stated in the notice of motion, but as rightly observed in the Court of Appeal case of ABDUL AZIZ SULEMAN V NYAKI FARMERS COOPERATIVE LTD & ANOTHER (1966) EA 409: 12 "that, the rules of the Court of Appeal did not specifically require that a particular order or rule under which an order is sought be stated in the notice of motion but that it was the usual practice and one which should be followed". The practice of the courts have always been that, a provision of the law on which the applicant relies upon to move the court, is cited. In the case Of JALUMA GENERAL SUPPLIES V. STANBIC BANK (T) LTD, CIVIL appeal NO. 77 OF 2011, Hon. massati, J. A, commenting on Rule 2 of the Court of Appeal Rules, 2009, had this to say:- "Second/y, to me, Rule 2 of the Court of Appeal Rules, 2009 was added merely as an internal aid to construction. It does not stand as a substantive Rule of procedure on its own. It cannot therefore be resorted to, where the language of the particular Rule is dear and unambiguous. It could be useful aid if the court is faced with an ambiguous provision, or where it is called upon to exercise judicial discretion, but not in dear Rules which have already been interpreted many times by the court because such course would confound and confuse litigants." In a very recent decision in ULEDI HASSANI ABDALLAH V. MURJI HASNEIN MOHAMED & 2 OTHERS, CIVIL APPEAL NO. 2 OF 2012 (unreported), the court of Appeal had this to say about procedure: 13 "In our considered view therefore, Art, 107A (2) (e) or Rule 2 of the Rules do not in any way, command that procedural rules be done away with in order to advance substantive justice. Not at all. Each case must be considered on its own merits..., Then the court went on to observe in conclusion thus: ... It should, therefore, be noted that, better interests or "substantive justice" and the like, cannot be met by violating the very laws and the rules that are the maidens of the rule of the law. With the above, it is obvious that, the second preliminary objection has merits. The court has to take cognizance of salutary rules of procedure which when properly employed help to enhance the quality of justice. In the upshot and for the foregoing reasons, the preliminary objection is sustained. Accordingly, the application is struck out with costs. A.E BUKUKU JUDGE 30th OCTOBER, 2012 14 Ruling delivered this 30th October, 2012 in the presence of Mr. Mutongore Learned Counsel for the Respondent, also holding brief of Mr. Masaka Learned Counsel for the Applicant. A.EBUKUKU JUDGE 30th OCTOBER, 2012 Word Count: 3,398 15