PAN MILO GROUP JUDGMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT PAR ES SALAAM CIVIL REFERENCE NO. 8955 OF 2024 PAN AFRICAN EQUEPMENT (T) LIMITED..................... APPLICANT VERSUS MILO GROUP LIMITED.............................................. RESPONDENT RULING 2nd Oct. & 6* Dec. 2024 DYANSOBERA, J.: The applicant filed the present application for reference under Order 7 (1) & (2) of the Advocates Remuneration Order, 2015 G.N. No. 264 of 2015, (hereinafter referred to as the GN 264) three substantive relief(s) as follows; this court be pleased to quash and set aside the decision of the Honourable Taxing Officer (Hon. A.M. Lyamuya, PRM) in the Bill of Costs No. 44 of 2023, delivered on the 03rd April 2024, and an Order for the restoration and determination on the merit of the said Bill of Costs No. 44 of 2023, Costs of this Application for Reference are to be borne by the Respondent Company and any other Order(s) as this Honourable Court may deem fit and just to grant. i This application is supported by an affidavit sworn by EDWARD GEORGE MTAKI the Company Secretary of the applicant. On the other hand, the respondent lodged a counter affidavit to contest the application. A brief factual background as could be gathered from the record is that before the Resident Magistrate Court of Dar es Salaam at Kisutu the applicant successfully sued the respondent for payment of USD 9,900 and interest at the rate of 7% per annum of the claims of USD 9.900 granted by the court from the date of accrual of cause of action to the date of judgment. The applicant was also awarded costs in that matter. She dully lodged bill of costs which was disposed of by way of written submissions. In the reply submission, the respondent raised a concern that, the bill of costs was filed beyond the prescribed period of time. The learned taxing master upheld the objection raised and proceeded to dismiss the bill of costs. The applicant was displeased by the decision of the taxing master hence she has preferred the instant application seeking for above reliefs. By the parties' consensus this application was disposed by written submissions, the applicant was represented by Mr. Selemani Matauka 2 learned advocate while the respondent was represented by Mr. Godfrey B. Namoto learned advocate. Submitting in support of the application, Mr. Selemani Matuka argued that the trial Magistrate determine the application for bill of costs time barred considering the preliminary objection raised by the respondent without a proper notice. It was raised by the respondent within its reply submission. He further contended that any facts introduced that were not stated in the parties' affidavits deserve to be rejected as it is regarded as statements from the bar. Reference was made in the case of Ahmed Teja T/A Almas Auto Parts Limited Vs, Commissioner General TRA, Civil Appeal No. 283 of 2021, the Court of Appeal of Tanzania at Dar es Salaam. Mr. Matauka also submitted that to file an application for Bill of Costs it is mandatory to attach a certified copy of the judgment and decree or the ruling and drawn order that awarded the costs. To fortify his argument, he referred to the case of Fastjet Airlines Limited vs. John Mnaku Mhozya, Miscellaneous Civil Application No. 210 of 2017. the High Court of Tanzania at Dar es Salaam. The impugned Judgment in Civil Case No. 283 of 2022 was pronounced on 8th May 2023 and Certified Copies were ready for collection on 18th July 2023. 3 Applicant's counsel further contended that applying the exclusion principle, the limitation period began on 18th July 2023, when the judgment and decree were certified, extracted, and ready for collection, and not on 8th May 2023, when the Court's decision was pronounced. The trial magistrate did not consider the time spent for the collection of certified documents. That the application was filed within prescribed period. Mr. Matauka further submitted that the Taxing Officer erred in law and fact by upholding the alleged preliminary objection, which was improperly raised without affording the parties the right to be heard, the applicant did not summon to address the issue of time limitation. The law provides the proper procedure for raising Preliminary Objections on points of law when necessary. Such requirements are intended to prevent any adverse party from being taken by surprise. The issue of time limitation was raised by the respondent in their reply submission without obtaining leave from the court to raise a preliminary objection. He stated that written submission is not a proper forum for raising a preliminary objection, it is contrary to O.VIII, r.2 of the Civil Procedure Code [Cap 33 R.E 2019], hereinafter referred to as the CPC). 4 He therefore prayed that the decision of the Taxing Officer be quashed and set aside and order the restoration of Bill of Costs No. 44 of 2023. In reply, Mr. Godfrey B. Namoto submitted that the decision that led to Bill of Costs No. 44 of 2023 was delivered on 8th May 2023, and the applicant filed her Bill of Costs on 14th Sept 2023. Order 4 of the GN 264, provides for the application for a Bill of Costs to be filed within 60 days from the date of the order awarding the cost, the Applicant's Bill of Costs was filed out of time because counting 60 days from 8th May 2023 the time to file the application expired on 6th July 2023. The principle of automatic exclusion of time does not apply to this case. Reference was made to the case of Alex Senkoro & 3 Others Vs Eliambuya Lyimo (As Administrator of the estate of Fredrick Lyimo), Civil Appeal No. 16 of 2017. Respondent's counsel further contended that before the applicant can successfully invoke the principle of automatic exclusion of time, must prove that she made a request(s) to be supplied with the decree and judgment of the lower court and the same were thereafter supplied to him/her by the court. In the instant case, the applicant has not shown or proved anywhere that she made requests and follow-ups or reminders on 5 the documents for purposes of prosecuting taxation cause. As observed in the cases cited above the applicant cannot successfully be protected by the principle of automatic exclusion of time. Regarding the issue of the preliminary objection raised by the respondent on a written submission, Mr. Namoto argued that a preliminary objection can be raised at any stage of the proceedings as long as it is an objection on a point law. He referred to the case of Mukisa Bisuits Manufacturing Company vs West End Distributors Limited [1969] EA 696. Regarding the grounds for the right to be heard as alleged by the applicant, Mr. Namoto argued that the record shows that the applicant filed her written submissions in which she responded to the issue of limitation that was raised. In her submissions before the lower court, the applicant made an extensive submission regarding the taxation cause being filed out of time. It was out of the submissions from both parties that the court based its final decision. Therefore, prayed the application be dismissed with costs. In his rejoinder the learned advocate for the applicant essentially reiterated his submission in chief. Having gone through the parties' rival submissions and the record before me, there are two issues for determination, the first issue is 6 whether the bill of costs was time barred and secondly whether the applicant was afforded right to be heard. Starting with the 1st issue, it is not in dispute that, the decision in which the applicant was awarded costs was delivered on 8/5/2023, hence as rightly pointed out by the learned advocate for the respondent bill of costs should have been filed within 60 days as stipulated under Order 4 of GN 264. Therefore, counting from the date the decision was delivered, the bill of costs should have been filed on or before 6/7/2023. It is not in dispute that, the bill of costs was filed on 4/9/2023 almost after expiry of about 58 days. I have considered the arguments by the learned advocate for the applicant that the decision awarding the costs was certified on 18/7/2023 hence time started to run on the date the decision was certified. The arguments by the learned advocate for the applicant presupposes that, the time within which he was waiting for the copies of judgment and decree was excluded and begun to run from the date the judgment was ready for collection. This exclusion of time is provided for under section 19(2) of the Law of Limitation Act [Cap 89 R.E 2019], (hereinafter referred to as the LLA). For purposes of clarity the said provision reads; 7 19(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review ofjudgment, the day on which the judgment complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded. [Emphasis added]. The above provision has been interpreted in various decisions both of this court and the Court of Appeal to the effect that, such exclusion of time is automatic provided there is on record proof of when the certified copy of judgment and decree were applied for, when they were supplied and when the application was filed. A party relying on such exclusion of period must furnish written proof that he requested for such documents. For instance, in the case of Valerie McGivern v Salim Farkrudin Balal Civil Appeal No. 386 of 2019 Court of Appeal of Tanzania at Tanga (unreported), on page 11 the Court of Appeal observed; "suffice to say, section 19(2) of LLA and the holding in the decision cited above reinforce the principle that computation of the period of limitation prescribed for an appeal, is reckoned from the day on which the impugned 8 judgment is pronounced the appellant obtains a copy of the decree or order appealed by excluding the time spent in obtaining such decree or order. However, it must be understood that section 19(2) of LLA can only apply if the intended appellant made a written request for the supply of the requisite copies for the purpose of an appeal. "[Emphasis added]. Also, in the case of Alex Senkoro & 3 others v. Eliambuka Lyimo (as administrator of the estate of Fredrick Lyimo deceased) (supra) where the Court of Appeal observed that; "We need to stress what we stated in the above case that the exclusion is automatic as long as there is proof on the record of the dates of the critical events for the reckoning of the prescribed limitation period. For the purpose of section 19 (2) and (3) of LLA these dates are the date of the impugned decision, the date on which a copy of the decree or judgment was requested and the date of the supply of the requested documents [Emphasis added]. Guided by the above authorities, the arguments by the learned advocate for the applicant the certified copies of judgment were ready for 9 collection on 18/7/2023 by itself not sufficient. He ought to have explained and furnish a letter showing he requested the copies within 60 days from when the decision awarding bill of costs was delivered. Equally he ought to have explained when the said documents were supplied to him. in absence of a letter showing he applied for the certified copies of judgment and decree he cannot benefit for automatic exclusion of time envisaged under section 19(2) of the LLA. Therefore, the bill of costs was filed beyond the prescribed of time and the learned taxing master rightly dismissed it. Therefore, the first issue is answered in affirmative. As to the second issue, the learned advocate for the applicant argued that, the preliminary objection was improperly raised since it was raised in reply submission and contrary to Order VIII, Rule 2 of the CPC. The provision referred by the learned advocate for the applicant is inapplicable to the circumstance. Since the objection raised by the respondent was on time limitation, it goes to the jurisdiction of the court. It is settled law that, objection on jurisdiction can be raised at any stage. Therefore, raising it in the course of reply submission in my settled view, did not violate any law. For instance, in the case of R. S. A. Limited vs Hanspaul Automechs Limited Govinderajan Senthil Kumal Civil Appeal No. 179 of 2016 Court of Appeal of Tanzania at Dar es Salaam io (unreported), an objection on jurisdiction of the court was raised in the final submissions after hearing of the case was closed. The Court of Appeal observed thus; "Thus, since the jurisdiction to adjudicate any matter is a creature ofstatute, an objection in that regard is a point of law and it can be raised at any stage. In our considered opinion, it was not offensive on the part of the respondents to raise it in the final submissions which was after the dose of the hearing. /Is such, it was incumbent on the part of the learned trialjudge to re -summon and hear the parties. "[Emphasis added]. From the above discussion, the claim by the learned advocate for the applicant that, the preliminary objection was improperly raised lacks basis and not merited. The question is whether the applicant was condemned unheard. As I have pointed above, the respondent raised an objection regarding time limit in reply submission. I have carefully gone through the record, the applicant duly responded to the objection raised in its rejoinder submission and the learned taxing officer properly determined it. Hence the applicant was not condemned unheard. 11 I therefore find the application to have no merits and I proceed to JUDGE 6.12.2024 This ruling is delivered under my hand and the seal of this Court on this 6th day of December, 2024 in the presence of Mr. Edward George Mtaki, the applicant's Company Secretary for t applicant but in the absence of the respondent JUDGE 12