MOHAMMADI WOODWORKS LTD VS HONEST LOGISTICS LTD MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION CASE NO. 14310 OF 2024 BETWEEN MOHAMMADI WOODWORKS LIMITED................. 1st APPLICANT MUSTAFA AUNALI ZAVERY..................................... 2nd APPLICANT AUNALI ABDULKADER ZAVERY.............................. 3rd APPLICANT VERSUS HONEST LOGISTICS LIMITED................................... RESPONDENT RULING Date of last order: 16/07/2024 Date of ruling:26/07/2024 AGATHO, J.: The applicants moved the court under the provision of Orders 8(1), and 48 of the Advocates Remuneration Order G.N. 263 of 2015 with an application for the following orders: (1) The court extends time for preferring reference to the High Court against the decision of the taxing officer in Taxation Cause No. 121 of 2023 taxed on 10th May 2024 (Hon. Minde, DR), (2) Costs of this application be provided to the Applicants. (3) Any other order(s) that the court may deem fit. i The application was by way of chamber summons supported by an affidavit of Moiz Zavery. The respondent filed a counter affidavit to protest the application. The counter affidavit was struck out for contravening the law governing affidavits. In terms of legal representation, the applicants were represented by Nixon Tugara, Advocate while the respondent enjoyed the services of advocates Lilian Godfrey Kihiyo, and Franklin Chonjo. The hearing of the application was conducted by way of written submissions. The applicants were ordered to file their written submission in support of the application on or before 18/07/2024, the respondent was allowed to file rely to applicants' submission on points of law on 22/07/2024 because her counter affidavit was struck out for contravening the law. The applicants were at liberty to file rejoinder if any on or before 24/07/2024. The ruling was to be delivered today, 26/07/2024 at 10:30 A.M. The ground for extension of time as captured in the affidavit supporting the application for extension of time is found in paragraph 6 where issues of illegalities in taxation cause No. 121 of 2023 have been pleaded. These issues are: 2 i. Whether the matter between the parties was a liquidated sum case eligible to be charged under 9th schedule to the Advocates Remuneration Order GN No. 263 of 2015. ii. Whether the matter between the parties was required to be charged under 11th schedule item 1 rule K. iii. Whether after taxation of costs in Taxation Cause No. 121 of 2023 the taxing officer found more than 1/6 denied under Order 48 of the Advocates Remuneration Order, GN No. 263 of 2015. iv. Whether the 2nd and 3rd Applicants were correctly impleaded and liable in taxation of costs arising from decision striking out the counterclaim they did not file and were not parties. v. The taxing officer did not consider all the decided cases referred to her and were binding decisions of the High Court of Tanzania and no reason was stated in the taxing officer's decision to depart from the decisions of various Judges of the High Court. Paragraph 7 of the affidavit too is on illegality. It avers that the decision of taxing officer did not state the basis or schedule under which 3 taxing instruction for defending counterclaim at TZS 14, 780, 472.42 was justifiable. While other grounds from paragraphs 8-13 of the affidavit might have substance, I have decided to concentrate on grounds 6 and 7 that on illegalities because illegality is sufficient ground to extend time regardless of lengthy of the delay. See Lyamuya Construction's case. See also Arunaben Chaggan Mistry v Naushad Mohamed Hussein and 3 others, Civil Application No. 6 of 2016 CAT at Arusha, at pages 9-10 where it was held that where a ground of seeking extension of time is illegality accounting for days of delay is not required. Therefore, accounting for each day constituting the delay maybe excused if illegality is the ground for extension of time. See the case of Attorney General v. Wafanyabiashara Soko dogo Kariakoo Cooperative Society Ltd, Misc. Civil Application No. 606 of 2015, High Court of Tanzania, at Dar es salaam (unreported). It is the law that extension of time is granted when the applicant has adduced sufficient cause. The law recognizes that illegality is a sufficient cause for extension of time as held in Lyamuya Construction Company Ltd v Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil 4 Application No. 2 of 2010, Court of Appeal of Tanzania, at Arusha (unreported); and Attorney General v. Wafanyabiashara Soko dogo Kariakoo Cooperative Society Ltd, (supra). While I have observed that the applicants has not termed ground 6 in the affidavit as illegality he labelled them issues that were not decided or were not considered by the taxing officer in her decision in the taxation cause No. 121 of 2023. In my view these issues relate to illegality, and they constitute good cause for extension time. I have read the respondent's submission and noted that instead of focusing on points of law, she fell into factual discourse. The point of delay is a factual issue that requires proof. The respondent alleged that when the applicants received the corrected Copy of the taxation certificate they still had 4 good days remaining for them to adhere to Rule 7(2) of the Advocates Remuneration Order that requires a party aggrieved by the decision of taxing officer to file an application for reference within 21 days. According to the respondent the correction of the year of certificate factor accounted for as a cause of delay would not have been an issue had it been filed timely. In my view, what the respondent have been submitting here is not a pure point of law. It required evidence. And it should be remembered that she lost that 5 avenue the moment her counter affidavit was struck out for offending the law on affidavit as it contained opinions, arguments and conclusion. I thus proceed to ignore her submissions. That said and for that sole reason that illegality has been successfully averred in the affidavit supporting the application, the extension of time is granted. Given the circumstance of application at hand, no order as to costs is given. Briefly the court orders as follows: 1. The application for extension of time is granted. The applicants are give 14 days from date of this ruling to file their reference application. 2. No order as to costs is given. Order accordingly. DATED at DAR ES SALAAM this 26th Day of July 2024. 6 Date: 26/07/2024 Coram: Hon. U. J. Agatho For the Applicants: Nixon Tugara, Advocate together with 3rd applicant For the Respondent: Lilian Godfrey Kihiyo, Advocate B/C: E. Mkwizu Court: Ruling delivered today, this 26th July 2024 in the presence of Nixon Tungara, counsel for the applicants and Lilian Godfrey Kihiyo, counsel for the respondent. <AGATHO JUDGE 26/07/2024 7