msafiri Dilunga

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY] AT MOROGORO APPLICATION FOR REFERENCE NO. 541 OF 2024 (Arising from decision of this Court (Hon A.W. Mmbando) in Taxation Cause No. 44 of 2023 dated 19/12/2023) MARIAM IDDI DILUNGA & FOUR OTHERS APPLICANTS VERSUS MSAFIRl IDDI DILUNGA (Administrator of the Estate of the late Iddi Selemani Dilunga) RESPONDENT RULING 03/04/2024 & 29/04/2024 KINYAKA, J.: On 10^^ January 2024, the applicants preferred the present application challenging the ruling of this Court dated 23''^ November 2023 in Taxation Cause No. 44 of 2023. The application was channelled through the chamber summons made under Order 7(1), (2), (3) and 4 of the Advocates Remuneration Order, G.N. No. 264 of 2015 published on 17^"^ July 2025, hereinafter "the ARO" and supported by an affidavit deponed by Barthalomew Tarimo, learned advocate for the applicants. Upon being served with the said application, the respondent opposed the applicants' application on the following points of objections lodged before this Court on 15^^ February 2024:- 1. That, the application was filed out of time without leave; 2. That, the application for reference is incompetent for citing wrong and non-existing Government Notice; 3. That, the respondent was served out of time, contrary to order 7(3) of the Advocates Remuneration Order, G.N. No. 263 of 2015; and 4. That the jurat of attestation is defective as it has not complied with the prescribed format. Hearing of the preliminary points of objection was by written submissions as per Court's scheduling order dated 3'^ April 2024. The applicants had the legal services of Mr. Bartholomew Tarimo, learned Advocate while Advocate Ignas Punge represented the Respondent. Submitting in support of the first point of objection, Mr. Punge contended that the present application was filed out of time as the ruling by the taxing master was delivered on 19^^ December 2023 while the application was filed on 10^^ January 2024, 22 days after the decision. He referred the court to Order 7(2) of the ARC which provides for 21 days to prefer reference against the decision of the Taxing Master. He contended that 2 once a period of limitation expires, the consequence thereof is to dismiss the application. As for the second objection which challenges the competency of the application for citing wrong and non-existing Government Notice, it was Mr. Punge's submission that the applicants cited Advocates Remuneration Order asG.N. No. 264 of 2015), instead of Advocates Remuneration Order as G.N. No. 263 of 2015 which is the proper law from which this Court derives power to hear and determine the application. As to the consequences of the alleged wrong citation of the law, Mr. Punge sought the assistance from the holding in the case of Chama cha Walimu v. The Attorney General (2008)2 EA 57, where the Court of Appeal among others, held that non-citation of proper law renders the proceedings incompetent. On the third point of objection, the respondent's counsel submitted that the Respondent was served out of time contrary to Order 7(3) of the ARO. He said, the respondent was served on March 2024 contrary to Order 7(3) of the ARO which provides that the applicant shall, within seven clear days of filing reference, save copies to all parties entitled to appear on such taxation. On the fourth point of objection, the learned counsel for the respondent attacked the Jurat of attestation for being defective as it has not complied 3 with the prescribed format. He cited section 8 of the Notaries Public and Commissioner for Oaths Act, Cap. 12 RE 2019, hereinafter "the NPCOA" to bolster his position that the impugned jurat of attestation has not complied with the above section. He submitted that the affidavit in support of the application contains Statutory Declaration instead of a jurat as required by the law. Based on the above submissions, Mr. Punge was of the view that the respondent's preliminary objection on points of law hold water and he prayed for the application to be dismissed with costs. Responding to the first limb of objection, the learned counsel for the applicants substantiated that the present application was filed on the 9^^ day of January 2024 and Control No. 991401043349 was issued on the same date. The payment was made with Bank Receipt No. EC102051601491 and GEPG Receipt No. 924009225743075. It was therefore his submission that the application was filed within 21 days prescribed under Order 7(2) of the ARC from the day the impugned decision subject of the application for reference was made. As to the second limb of objection, the learned counsel sought reliance in the case of Tanzania Electric Supply Company Ltd v. Edna Chambiri(Adminstratix of the estate of the Late Aiphard Weema Chambiri), Reference No. 02 of 2020 (unreported) and submitted 4 that citing Advocates Remuneration Order, 2015, G.N. No. 264 of 2015 instead of citing Advocates Remuneration Order, G.N. No. 263 of 2015, is not fatal but curable. According to him, the same was just a typing error that could not affect the competence of the entire application. On the third limb of preliminary objection, Mr. Tarimo attacked the learned counsel for the respondent for not disclosing to the court as to when the respondent was served and when were the summons from this Honourable Court issued and served upon him. According to him, this would have assisted in counting from when the summons were issued by the Court. As regards to the last point of objection, it was Mr. Tarimo's contention that all that is required by section 8 of the NPCOA is the presence of the name of the attesting officer and the date and the place the oath was taken, which were complied with in the applicant's affidavit. From the submissions above, the learned counsel implored this Court to dismiss the four points of objection raised by the respondent's counsel for lacking merit. From the parties' submissions, the pertinent issue for consideration is whether the raised points of objection are meritorious. On the first ground, it is undisputed from the electronic case Management system (the eCMS)that the present application was filed in this Court on January 2024, 22 days from the impugned decision of the taxing matter in Taxation Cause No. 44 of 2023 dated 19^^ December 2023 . As such, I am not surprised with Mr. Punge's reasoning that the applicants delayed for the single day to file the present application which ought to have been filed on or before 9^^ January, 2023. This is based on the reason that Rule 21(1) of the Judicature and Application of Laws (Electronic Filing) Rules, G.N. No. 148 of 2018 provides that: '!4 document shall be considered to have been filed If It Is submitted through the electronicfiling system before midnight east African time/on the date it is submitted unless specific time is set by the court or it is rejected'' Be it as it may, I am of a considered view that the provision above has not in any sense changed the requirement of paying the requisite fees before filing a document in the respective court registry. [See the case of John Chuwa V. Antony Cisa [1992]TLR 22, Camel Oil(T) Limited V. Bahati Moshi Masabile and Bilo Star Debt Collector, Civil Appeal No. 46 of 2020, Mwaija Omary Mkamba v. Mohamed Said Msuya and others. Land Appeal No. 142 of 2020, and Samaria Manfred Machange v. Lyidia Geofrey Byampanju, Misc Civil Application 422 of 2022 (all unreported)]. In the latter case, this Court made the following observations on page 5 of the decision:- 'Ifone is duty bound to pay for the Wing fees, then the Wing process compietes when one makes payment of the Wing fees. That position of the iaw was stated in Inter-export Ltd V. Customs [1970] EA. 648, Gregory Raphaei /. Pastory Rwehabuia[2005] TL.R. 99 and John Chua v. Anthony Siza [1992] TL.R. 233. In Gregory's case (supra) it was heid by this Court, Luanda, J., as he then was, inter aiia: "... and the Wing process is compiete when the petition ofappeai is Wed upon payment ofthe requisite court fees." In the instant matter, upon perusal of the documents filed in the eCMS system including the receipt evidencing the date and amount paid for filing documents in Court, I have come across electronic receipt supporting the applicants submission which show that payment of the fee was made on 9^^ January 2024 within the time limit prescribed by law through control number 9914010433349, at the National Microfinance Bank with Receipt No. EC102051601491. Based on my observation above, I am inclined to safely hold that although the present application was filed in the system on 10*^^ January 2024 after being cleared by the Court, the filing process on part of the applicants became complete when they paid the necessary fees on 9^*^ January 2024. The date of payment of the requisite fee for filing the application is evidenced by the exchequer SL i < receipt attached to the applicants' submissions in chief which is similar to the one uploaded on the eCMS. The first point of objection is therefore dismissed. On the second point of objection, both parties agree that there is an error in citation of the Government Notice Number of the Advocates Remuneration Order, in that the applicants cited the same as G.N. No. 264 instead of G.N. No. 263. Mr. Tarimo conceded that there was an error in the citation but argued the same to be a typing error that is curable. On my part, I am mindful of the position established through case laws that wrong citation of the law or rule, renders the application incompetent. [See: Project Manager ES KO International Inc. Kigoma v. Vicent J. Ndugumbi, Civil Appeal No. 22 of 2009, CAT at Tabora (unreported), Edward Bachwa & 3 Others v. The Attorney General & Another, Civil Application No. 128 of 2006, (CAT) (unreported), and Mondorosi Village Council and Others v. Tanzania Breweries Ltd & Others, Civil Appeal No. 66 of 2017 (unreported). As correctly argued by the parties, the application has been brought under a non-existing government notice number of the ARO. The next question for consideration is whether the error is curable as argued by Mr. Tarimo. In resolving the question, the test to be applied is whether the error goes to the root of the matter. In my considered position, the difference ■ a A-* % between number '4' wrongly inserted by the applicants and the correct number '3' that ought to have been inserted, is a typing error caused by slip of the pen and which does not affect the entire application. Not only that the error did not go to the root of the matter that would oust the jurisdiction of this Court to entertain the application, but also the respondent has not been prejudiced by the error in the citation. In the recent case of Diodes Kamuhabwa v. Theonest Kamuhabwa, Civil Appeal No. 436 of 2022, the applicant cited a non-existing rule for certification of correctness of the record of appeal. In resolving the matter, on page 6 of its judgment the Court of Appeal held: - ''It is true that the appellant has dted rule 95(5)and 96(5) of the Rules as enabling provisions In the certificates of correctness of the record In the original and supplementary record of appeal respectively. Nevertheless, the law Is now settled that citing a wrong provision Is curable and does not render the record ofappealIncompetent On that account, we are ofthe firm view that the raised concerns are minor and do not go to the root of the matter. As such, neither of them renders the appealIncompetent We accordingly overrule the same. Applying the position of the law in tackling the situation much similar to the present, this Court in the case of Uduru Makoa Agricultural and Marketing Cooperative Society Limited (Uduru Makoa Amcos) v. Makoa Farm Limited Two Others, Misc. Civil Application No. 23 of 2022 (unreported) on page 18 to 19 held:- "/Is to the citation of law, according to the second point of objection, that the application is defective for non-citation and wrong citation ofthe enabling provision ofthe law, Ithink the case of Director GenerahLAPF k Paschal Ngalo, Civil Application No. 78/8 of 2018 is a good law to follow.....According to the caseIhavejust cited herein above, the court has power to order parties to insert the correct provision ofiaw provided thejurisdiction ofthe court has not ousted...Under the circumstances, I have a firm view that the provisions cited cannot vitiate the application at hand. Thus, there is no effect where there is wrong citation ofthe provision ofiaw and the court hasjurisdiction. What the court has to do is to order parties to insert a correct provision of iaw. It is therefore hereby directed to the parties to rectify the omission so that the main application is heard as envisioned by the counsel for the Respondent." I share the same view with the holdings above. In my firm view, based on the foregoing, Mr. Tarimo's citation of Advocates Remuneration Order as G.N. No. 264 instead of G.N. No. 263 cannot render the entire W- 10 » 4 application incompetent. As Intimated above, I consider the error as inconsequential and insignificant arising from a mere slip of the pen. That said, the second point of objection is partly sustained to the extent articulated above. Turning to the third ground of objection, the respondent's learned advocate is lamenting that the respondent was served out of the prescribed period of time. I straight away agree with the learned counsel for the applicants that Mr. Punge has not provided any proof to such effect. Even by assuming that service of the reference was not effected upon the respondents on time, the learned counsel has not exhibited to the Court as to what extent the respondent was prejudiced with the omission. In that case, the said defect if any, is in my firm view, curable under the overriding objective principle enshrined under sections 3A (1) and 3B(1)(a) of the Civil Procedure Code, Cap. 33 R.E. 2019, hereinafter, "the CPC" as amended by the Written Laws (Miscellaneous Amendments) (No.3) Act No. 8 of 2018. I have taken inspiration from the decision of this Court in the case of Ndalamia Partareto Taiwap & 4 others v. The Minister of Natural Resources and Tourism & another; Misc. Civil Cause No. 21 of 2022 where it was held:- '7/7 this case, the respondent has not said that serving them out of time did in any way prejudice them. Mr. Mpoki said ■ . 11 . •/ • . . there is no evidence of prejudice on the part of the respondent, as they even managed to file their defence. I entirely agree with Mr. Mpoki, that there is no element of prejudice on the part ofthe respondents. Thatsaid, and given the nature of the case at hand, and the resultant order of striking out the matter shouldIfind that the non-compiiance is not served which would not be a bar to the further institution of the case, Ifind the non-compiiance to be cured by the principle ofoverriding objective. Though the objection was found to be meritorious, the same is cured. That being the state ofaffairs, Iorder the matter to continue on merit..." Reverting to the present situation, as the respondent was able to file their counter affidavit, I find the alleged applicants' omission to serve the respondent with the application within the required seven days, if any, curable under section 3A (1) and 3B (1)(a) of the CPC. In that regard, the third ground of objection also fails. On the fourth ground of objection, the learned counsel attacked the jurat of attestation for being defective as it has not complied with the prescribed format under section 8 of the NPCOA. Section 8 of the NPCOA provides:- ''Every notarypublic and commissionerfor oaths before whom any oath or affidavit is taken or made under this Act shall 12 insert his name and state truly in the Jurat of attestation at whatplace and date the oath or affidavit was taken." The above provision was amplified in a number of Court of Appeal decisions, one being in the case of Samwel Kimaro vs Hidaya Didasi, Civil Application 20 of 2012 where on page 4 the Court expounded: - 'In my reading and understanding ofsection 8it is important thatan affidavitshould disclose who is taking the oath, where it is taken and when it was taken...." From the impugned jurat, I noted that the affidavit was taken on 8^^ January 2024 at Morogoro before one, Levina Leo Mtweve, advocate and commissioner for oaths. In my respective view, the same was valid and within the ambit of section 8 of the NPCOA stated above. In the event, the 4^^ ground of objection is dismissed. In the light of the foregoing findings, except for the second ground of objection which was partly sustained, the respondent's remaining points of objection are devoid of merit and are overruled. I order the applicants' application for reference to proceed in its merits on a date to be scheduled by the court. Basing on the fact that the parties herein are blood relatives, I make no orders as to costs. It is so ordered. ■ 13 DATED at MOROGORO this 29'^ day of April 2024, 46' H. A. KINYAKA JUDGE 29/04/2024 14 Court Ruling delivered in the presence of Ms. Sophia Omary, learned Advocate holding .brief for Mr. Bartholomew Tarimo, Learned Advocate for the applicants, the applicants and the respondent who appeared in person. ro Rr F.Y. Mbelwa DEPUTY REGISTRAR 29/04/2024 15