NBC LTD VS MM WORDWIDE TRADING CO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 217 OF 2015 (Arising from Commercial Case No. 166 of 2014) NATIONAL BANK OF COMMERCE LT D ..................... APPLICANT VERSUS MM WORDWIDE TRADING COPANY LIMITED JACOB FREDRICK MSAKI ...L... RESPONDENTS ANNETE JACOB MSAKI 21st September & 15th October, 2015 RULING MWAMBEGELE, J.: The applicant has filed an application for reference seeking to challenge the decision of the Taxing Officer in Commercial Case No. 166 of 2014. The application has been made under the provisions of rule 5 (1) of the Advocates' Remuneration and Taxation of Costs Rules, 1991 - GN No. 515 of 1991. This application is under attack. It is attacked by way of a preliminary objection filed on 07.09.2015 by Mr. Frank Mwalongo, learned counsel for the respondents to the effect that it has been filed out of time. The preliminary objection (henceforth "the PO") was argued before me on 21.09.2015 during which Mr. Gaspar Nyika, learned counsel represented the applicants and, as aforesaid, Mr. Frank Mwalongo, learned counsel, advocated 1 for the respondents. The learned counsel for the parties had earlier filed their respective skeleton written arguments as required by the provisions of rule 64 of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012. Arguing for the PO, Mr. Mwalongo, learned counsel was very brief but to the point. He submitted that the provisions of rule 5 of the Advocates' Remuneration and Taxation of Costs Rules require that an application of this nature shall be made by way of chamber application supported by an affidavit within 21 days after the delivery of the ruling intended to be complained of. The present application, he submitted, was filed on 19.08.2015 while the ruling of the Taxing Officer was pronounced on 14.07.2015 which was 35 days thereafter hence out of time. Mr. Mwalongo submitted further that the affidavit supporting the application has not been appended with any letter or document to show any efforts put in following up the decision of the Taxing Officer. Neither has it been appended with an Exchequer Receipt Voucher (ERV) used to pay for the ruling to show when the same was received. In the premises, he submitted, the application is incompetent for being filed out of time and should be struck out. In response, Mr. Nyika, learned counsel, like Mr. Mwalongo, was equally brief and to the point. He conceded that under the provisions of rule 5 of the Advocates' Remuneration and Taxation of Costs Rules, an application of this nature must be made by way of chamber application supported by an affidavit. However, Mr. Nyika, learned counsel was quick to point out that that application must within 21 days after the issue of certified copies of the ruling intended to be challenged; not after the delivery of the same. He went 2 on to submit that as stated in the affidavit in support of the application, the decision intended to be impugned was delivered to the applicant on 14.8.2015 and the application was filed on 19.08.2015 hence within time. He stressed that there is no requirement under the rule to the effect that an applicant should apple for the decision but that what the law requires is for the Taxing Officer to issue the same. He thus prayed that the PO be overruled with costs. In a somewhat reiterating tone, Mr. Mwalongo, learned counsel, had a short rejoinder. He rejoined that the certified copy of the decision which is a key document in the present application and which would have assisted the court and the parties to know when the same was certified and therefore know when the 21 days should be reckoned, has not been appended with the application for reference. That makes the application incompetent for being filed out of time. This matter will not detain me. The provisions of rule 5 (2) of the Advocates' Remuneration and Taxation of Costs Rules speak loudly and clearly that an application for reference must be made by way of chamber application supported by an affidavit and that such application shall be made within 21 days after the certified decision has been issued to the applicant. I find it too cheap to buy Mr. Mwalongo's argument to the effect that the application for reference should be made 21 days after the delivery of the decision intended to be challenged. I do not think Mr. Mwalongo is serious in fronting this argument at the hearing. I think he is just pulling my leg. I say so because in his skeleton written arguments filed on 17.09.2015 which he adopted at the hearing to be part of his oral submissions, he stated at page 1: 3 "... the Advocates Remuneration and Taxation of Costs Rules G.N No. 515 of 1991 provides that: (2) The objector shall proceed by way of chamber application supported by an affidavit to be filed within 21 days after the issue of the certified copy of the officer's decision and to be served upon all other parties who were entitled to appear on such taxation." [Emphasis supplied]. Mr. Mwalongo's statement made at the oral hearing to the effect that the application for reference ought to have been made within 21 days after the decision of the Taxing Officer is therefore not in tandem with the skeleton written arguments he earlier filed. The law on this point is therefore as stated at rule 5 (2) of the Advocates' Remuneration and Taxation of Costs Rules and as stated by Mr. Nyika in both the skeleton written arguments and at the oral hearing and as stated by Mr. Mwalongo in his skeleton written arguments that where, as here, 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. That application shall be made by way of chamber application supported by an affidavit to be filed within 21 days after the issue of the certified copy of the Taxing Officer's decision and to be served upon all other parties who were entitled to appear on such taxation. An application for reference filed beyond 21 days after the decision of the Taxing Master intended to be challenged was supplied to the objector will 4 certainly be incompetent for being filed out of time and will, in terms of section 3 of the Law of Limitation Act, Cap. 89 of the Revised Edition, 2002 not escaped the wrath of being dismissed - see: Glaxogroup Limited ks Agri-Vet Limited Commercial Case No. 73 of 2002, British Broadcasting Corporation Vs Eric Sikujua Ng'maryo Miscellaneous Civil Application No. 77 of 2001, John Cornel Vs Grevo (T) Ltd Civil Case No. 70 of 1998 and Pearl International Commodities Ltd Vs Tanzania Harbours Authority Civil Case No. 281 of 1996 all unreported decisions of this court. Equally, the argument by Mr. Mwalongo to the effect that the applicant ought to have appended a letter or document or an ERV to verify as to when the decision of the Taxing Officer was supplied to the applicant, has not found purchase with me. The affidavit in support of the application says it all at para 9 that a copy of the decision of the Taxing Officer was applied for and supplied to the applicant on 14.08.2015. That, in my view, it being stated in the affidavit, was enough; it must prevail as against Mr. Mwalongo's contention submitted from the bar. T ^ # f® < ia r y objection is consequently overruled with costs. J & t E D at DAR ES SALAAM this 15th day of October, 2015. J. C. M. MWAMBEGELE JUDGE 5