migo civil builders contractors co ltd another vs mnange genenral store company ltd 2023 tzhc 17765 5 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SUMBAWANGA AT SUMBAWANGA CIVIL APPLICATION NO. 09 OF 2022 (Originating from Bill of Cost No. 9 of 2021 at the District Court of Sumbawanga and Order of the High Court of Tanzania at Sumbawanga in Misc. Civi! Application NWQ1 of 2022) MIGO CIVIL & BUILDERS CONTRACTORS CO. LTDW, v .1st applicant AYUBU NYAULINGO .... VERSUS w MNANGE GENERAL STORE CQMP^J LTD| RESPONDENT 10/03/2023 & 05/6/2023 S Ju. W ^■RULING MWENEMPAZI, J 'W.‘. 1 % % W' The applicants have'.fiied this application under Rule 8 (1) and (29 of the Advocates Remuneration Order, 2015 seeking orders of this court: - (a) Extending time for the 1st and 2nd applicant to file reference against the decision of the taxing master in Bill of Cost Application No. 9 of 2021 decided by Sumbawanga District Court on 29/07/2021. i (b) . That the costs of this application be borne by the Respondent. It is in the Chamber Summons that the application has been taken at the instance of the 1st and 2nd application herein named and it is supported by an affidavit sworn by Mr. Laurent John, Advocate for the 1st and 2nd Applicant, It is also intimated that at the hearing the^pljcants will disclose further grounds to support the application. A In the affidavit sworn by Mr. Laurent John, W^ave^dfiihat the respondent filed a Bill of Costs ApplicationiNo. 9tof^01®k the District Court of Sumbawanga which was^eterminedtin hBifavour and the 1st and 2nd applicant were ordered tS/.payzthebrespbndent herein a total of Tshs. the sarpe by way^pf reference, which actually was filed but struck out after The applicants sought an order for extension of time by filing application No. 01 of 2022 which was again withdrawn and leave was given to refile the same on 27/4/2022; the applicants have not lost the urge to file the said reference. Hence they came back with the present application. 2 In the application at hand, the applicants have banked their application, as the reasons for extension of time that the ruling of the District Court of Sumbawanga in Bill of Cost Application No. 9 of 2021 is marred with glaring illegalities which in themselves constitutes a good ground for extension of time. The applicants have listed the areas with illegalities in paragraph 6 of the affidavit. The alleged illegalities are as follof^. (1) That, the taxing master wronglysentertgiped^lihed^Bill of Cost Application No, 9 of 2021 whiteTb,e^uiino ofr^pe District Court of Sumbawanga in b^isCfeCivil Application NoBTof 2021 at page 10 ordered hearing of taxation .cause/.which was already in the court to proceed on meriwhich was^pplication No. 1 of 2021. (2) Thaty/the Respondent^instituted the Bill of Cost while knowingly/ . Wdught to know tnafeshe was not the decree holder as the proper ^decree holder tBinstitute application for Bill of costs was MNANGE Wife GENERAL-STORE who was the one entitled with the costs of the case as per decree of the District Court of Sumbawanga dated 8/10/2020. 3 (3) That the taxing master never applied any principle of taxation instead he only granted the amount prayed by the respondent without any evaluation or evidential proof. (4) That the decision of taxing master was arrived at in breach of the 1st and 2nd applicant's right to be heard for thi^Hegations that their advocate had no valid practicing licens^^^^^'^^^ (5) That the application was heard %Sumlwai^|gistri®fEburt but the Ruling was erroneousl^.endorsed>^dtlWhe seal of Resident discretion and extend ti.rne to|a|;low the?applicants to file the reference out of time, As would be expectcd^the Respondent is opposing the application and has filed a counter affidavit sworn by Martin Martin Mhagama. He has basically ' W.. JI opposed the"allegations enlisted in the affidavit and averred further that the illegalities listed are an afterthought and that the fact leading to striking of this application at first and then withdrawal as deposed in the affidavit are as a result of inaction and negligence on the part of the applicants. 4 Hearing was conducted by way of written submission; Mr. Laurent John Advocate wrote a written submission on behalf of the applicants. He has submitted praying that the affidavit be adopted to form part of the submission. His argument is that the applicants are seeking an order for extension of time relying on the illegality of the challenged decision (Bill of Costs Application No. 9 of 2021) which in itselKcopstitute^good cause for extension of time. He has cited the case of Brazafric Enterprises Limited Ik V Vs. Kaderes Peasants Development^PLC)|Cjvil Application No. 421/08 of 2021, Court of Appeal of Tanzania at Danes salaam.,(unreported). Where at page 11 it was held: ff ^k. "In the light oftheaboveidecision, I find that the ground ofillegality W ■ -kF raised by,the applicantsconstitutes good cause for extension of tiger'^^ % % % The codpsel has also refereed to other similar cases of Tropical Air Tanzania Limited Vrs Godson Eliona Mushi [2018] TLR 363. And that of Principal Secretary, Ministry of Defence and National Service Vs Devram Valambhia [1992] T.L.R. 185: 5 According to the counsel, the pointed-out illegalities are on the face of the record. He has thus illustrated the same by pinpointed the features as sworn in the affidavit. The counsel for the respondent in opposition to the submission by the counsel for the applicant has submitted that the application has no merit as the applicants have failed to account for d^^^^l^^i^ slqppiness negligence, inaction, apathy and non-diligepce hiddgrLTehind^he grounds of illegality. % The counsel has submittedThat all thq. raisedAgrounds of illegality do not ■ if ■W '"'W qualify to be the points of su|ficient'im'portance for the court to discretionary grant extension offime? Eirst;The; points attract a very long process to be w W. "W drawn to find 'them/'and relate ..them to the allegations as they are not apparent on tfefacetof the record. The counsel has submitted that on the % w points raised that Misc. Civil Application No. 01 of 2021 and Misc. Application No. 04 of 2021 aremot being challenged here. But the subject of reference is Misc. Civil Application No. 9 of 2021. 6 As to the name of the decree holder in the impugned ruling is again not of sufficiency importance. It was a clerical error subject of correction under Section 97 of the Civil Procedure Code, Cap 33 RE 2022. On the right to be heard, the counsel for Respondent has argued that it is also not illegality on the face of record, It will involve ansyyering the question otTenewedrthe practicing license, and also whether it was proper for'theJaxirig^iTastbRo|proceed with the hearing in absence of the counsel j^r-th^pp^nt<ghe counsel prayed that the application be strucfeout with coftsF^^^' -w. 4 w -f In rejoinder, the counsel fonfhe applicant has|submitted that the respondent Fife; W 1 ’’- has failed to counter thFsubmissionmade by the applicants. The counsel has insisted on the position laid down in the case of Brazafric Enterprises Limited Vrs. Kaderes Peasants Development (PLC), (Supra) where Ws, w. there is iljegality which is visible, the court is duty bound so extend time even if the applicant hasmot accounted for delay. He has argued that the case relied upon by the respondent Jubilee Insurance Company Tanzania Limited VS. Mohamed Sameer Khan, Civil Application No. 439/2020, at Dar es salaam (unreported) for the 7 point that delay even for a single day must be accounted for; is distinguishable in the circumstances because the complained illegalities in the Bill of Costs No. 9/2021 has gone to the root of the case. On the allegations of clerical errors which resulted to the difference of names between MNANGE GENERAL STORES and MNANGE^NERAL STERES COMPANY LIMITED, the applicants' counsel h^fefeserved that suck is the . ■ - » M. • »- I M • I misapprehension of the existing law. The^error dqgejpwasn't clerical as 'Ik ''^9' alleged; parties to the suit ought td^ppeak ^s|thefejid in the previous proceedings. He has emphasized b^cjting'the castRjf Joseph Magombi vs. Tanzania National Park (TANAPA)/Civil Appeal No. 114 of 2016, CAT(T) DSM (unreported) which held that: ’We thinkandagree w/tfrthe Judges in the case of William Geofrey lUrassa(supra)that the"parties who featured in the initial proceedings should be thesame parties featuring before the High Court as well as this Codht^le further say, that unless a proper procedure has been followed to change or altera name, no change ofparty's name should occur." The counsel has prayed this court to grant the application. 8 I have read the record of the application as well as the submissions made by the counsels for the parties to the application. The point and reason of delay raised in that matter, is the illegalities pointed out by the counsel for the appellant. The points are four which in a way they are points to be considered by the appellate court for the decision remain standing or otherwise nullified At this level, it is not my duty to delve intoli^g merithf ttfpdipt but it is my duty just to appreciate whether they are^ppipts^^suf^ient importance or not, so as to exercise the discretion apd allow the application by extending time to file reference as prayed by the applicants. In the case of Principal Secretary, Ministrytof Defence, National Service Vrs. Derram valambia [1992] TLR. 185' (CA) it was observed that; fThe point, at issue is the illegality or otherwise of the decision being challenged, that is of sufficient importance to constitute sufficient , ..w reasoriswithin the meaning of rule 8 of the Rules for extending time. To hold otherwise would amount to premiering a decision which in law might not exist, to stand. ” 9 I have read the points raised by the applicant and in my considered view they are of sufficient importance for them to be considered by the superior court for the decision to stand or not. Without going further into details, I think they constitute sufficient reasons and thus are of important for the court to exercise its discretion to extend time. Under the circumstances, the application is granted and thewpplicapts are given 21 days to file reference from the date^of tHr|?Ruljng*ag^ order. It is ordered accordingly. M. MWENEMPAZI JUDGE Ruling£delivered in^gourt iq^he presence of Mr. James Lubusi, learned Advocate, holding briefs for Mr. Laurent John, advocate for the applicant and Mr. Samsbn.Suwi, advocate for the Respondent. T.M. MWENEMPAZI JUDGE 05/06/2023 10