PRAVINDCHANDRA GIRDHARLAL CHADVA VS GOPALJI VALLABHDAS CHAVDA MISC

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 138 OF 2023 {Originating from Commercial Case No. 27 of2023) PRAVINDCHANDRA GIRDHARLAL CHAVDA...................... 1st APPLICANT PREETI PRAVINCHANDRA CHAVDA..................................... 2nd APPLICANT BUILDERS (V.M CHAVDA) LIMITED..................................... 3rd APPLICANT VERSUS GOPALJIVALLABHDAS CHAVDA 1st RESPONDENT GOPALJI VALLABHDAS CHAVDA {Administrator of the estate ofthe late Vaiiabhdas Muiji Chavda)...... 2nd RESPONDENT RULING April 24h, 2024 & June 7th, 2024 Morris, J This ruling is with regard to an application for an order obligating the respondents above to deposit in court, TZS 120 million as security for costs incurred and likely to be incurred by the applicants in defending Commercial Cause No. 27 of 2023. The application is preferred under Order XXV Rule 1(1) of the Civil Procedure Code, 1966, Cap. 33 R.E. 2019 {the CPC). The same is by way of chamber summons supported with an affidavit deponed by the 1st applicant. The application is resisted J 2 by the respondents through a counter affidavit sworn by Mr. Robert Rutaihwa, their advocate. Briefly, material facts of this case are amassed from the parties' affidavits. The applicants and the respondents are correspondingly, the respondents and petitioners in Commercial Cause No. 27 of 2023 which is pending in this court. In defending the said case, the above applicants (respondents in the case), have alleged that they have incurred costs and will continue to incur the same. This application's hearing proceeded by way of written submissions. The applicants and the respondents were represented by Messrs. Nuhu Mkumbukwa and Robert R. Rutaihwa, learned counsel, respectively. Submitting in support of the application, the applicants' counsel argued that, there are two precedent conditions for the court to order depositing of the security for costs, namely; i. That the plaintiff is residing outside Tanzania. ii. That the plaintiff possesses no sufficient immovable property within Tanzania, other than the property in dispute. 3 On this stance, the counsel made reference to the case of Rajiv Bharat Ramji v. Power Generation Middle East FZE, Misc. Civil Application No. 37 of 2023, High Court of Tanzania, at Dar es Salaam. Further, submitting on the 1st condition stipulated above, the counsel argued that the respondents are residents of the United Kingdom. He buttressed this position by relying on paragraph 1 of the petition in Commercial Cause No. 27 of 2023. Propounding on the 2nd condition, the applicants contended that the respondents are not in possession of any immovable properties in Tanzania. Reference was made to contents of the counter affidavit that; his clients own shares in Chavda Engineering Consultants Limited. To the applicants, the shares are movable properties. Hence, they cannot be used as security for costs. He cited the cases of Tanzania Portland Cement Company Limited v The Treasury Registrar and 3 Others, Land Case No. 95 of 2016; and UniversalItaliana s.r.l v. Termcotank (T) Ltd, Commercial Case No. 42 of 2004 (both unreported), to bolster this ground. In addition, the counsel finalised his submissions by discussing the quantum of the alleged costs incurred and likely to be incurred by the 4 applicants in Commercial Cause No 27 of 2023. Accordingly, he was quick to the point that, the same is within the court's discretion. He however, insisted on realism, reasonability and fairness. To substantiate this position, the counsel argued that, the applicants have already entered appearance in the main cause; engaged counsel who appeared in court on all occasions; filed pleadings, objections and submissions; all of which cost them money. He contended further that the filed documents were paid for as per the law. To him, as the case is yet to be completed, more costs are bound to be incurred in the future for attendance and hearing of the same. Additionally, the counsel presented that, the case at issue is very complex that demands time-consuming legal research. On this position, he cited the cases of Zulfikar HaideraH Njessa and Another v Dimond Trust Bank (T) Ltd, Misc. Commercial Application No. 58 of 2019; and Target International (T) Ltd v. Godrej Consumer Products Ltd, Misc. Commercial Cause No. 86 of 2019 (both unreported). In conclusion, he prayed for this Court to order the respondents to deposit TZS 120 million as security for costs. According to the applicants, 5 the amount prayed for is reasonable in the circumstances of this matter. They further prayed for costs of this application. In principle, the respondents did not dispute the fact that the respondents reside out of Tanzania; and that they have no immovable properties in this country. Their counsel submitted further acknowledging the discretionary powers of the court in granting the order for deposit of the security for costs. He however, asserted that the circumstances of the matter at hand, are not ideal for depositing such security. Regarding the quantum (TZS 120 million), the counsel argued that the same is exorbitant and intends to defeat the ends of justice. He also argued that, though the said figure has been pleaded, it has no supporting proof to justify its being just. Reacting to the applicants' contention on complexity of Commercial Cause No. TJ of 2023; the respondents' counsel submitted that, none of the factors alleged to constitute the said complexity have been averred in the affidavits supporting the application. He, thus, prayed for dismissal of the application. However, he left to the Court's discretion, the costs of this application. 6 In rejoinder submissions, the applicants' counsel substantially reiterated his submission in chief. Nonetheless, he also argued that the Court's discretionary power to grant the present application is exercisable judiciously. That is, since the respondents have admitted that the two conditions justifying the application exist hereof: - non-residency and lack of possession of immovable assets in Tanzania; then the present application deserves to be granted. I have meticulously considered the parties rival submissions and affidavits. The overt issue for determination is whether the application is meritorious. At the outset, I find that, one, there is no contention by the parties that the court's powers to grant the order for depositing the security for costs is discretionary. Two, there is no issue between them that the amount to be deposited as security is to be determined by the Court on case-to-case basis. Three, parties also are at per that, the discretionary powers of the Court hereof are subject to the precepts under Order XXV Rule 1(1) of the CPC. I find it apt to quote the said provision for clarity. It provides as follows; "Where at any stage of a suit, it appears to the court that the sole plaintiffis or (when there are more plaintiffs than one) that all the plaintiffs are residing out of Tanzania, and that such 7 plaintiffdoes not or no one ofsuch plaintiffs does, possess any sufficient immovable property within Tanzania other than the property in suit, the court may, either of its own motion or on the application of any defendant, order the plaintiff or plaintiffs, within a time fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any defendant'"(emphasis added). As it can be gleaned from the above cited provision, this Court has discretionary powers to grant an application for security for costs if the two conditions stated by the applicant exist. That is, the plaintiff(s) reside(s) outside Tanzania; and he (they) possess(s) no any sufficient immovable property within Tanzania other than the property in dispute. Such position is also recapitulated in AbduiAziz Laiani and 2 others v. Sadru Mangaiji, Misc. Commercial Cause No. 8 of 2015 and Registered Trustees of Tanzania Presbyterian Church v. Jung Hwan Kim and Another, Misc. Civil Application No. 183 of 2022 (both unreported). In the instant application, parties are not in dispute that, the respondents are neither Tanzania residents nor do they possess immovable properties within this country. That being the case, therefore, 8 while being guided by the above laid principles of the law; I hold that the applicants deserve to be granted this application for security for costs. Nonetheless, the parties' contention is on the quantum thereof. It is obvious that, the applicants' prayer is to be granted TZS 120 million as security for costs. However, the respondents have disputed this amount as being exorbitant and unjustifiable. According to the respondents, there exists no tangible evidence on part of the applicants to substantiate this amount apart from mere arguments of the applicants' counsel on complexity of the main case. Upon scrupulous analysis on this argument, I am completely in accord with the respondents. It is correct that, the applicants have not accorded the Court with necessary substantiation for the claimed amount. In other words, they have not provided tangible evidence apart from the advocate's submissions. It is a clearly settled law that, arguments from the bar are not evidence. See, for instance, Camel Concrete (T) Ltd v. Tanzania National Roads Agency (TANROADS) andAnother, Misc. Civil Application No. 675 of 2020 (unreported). Therefore, the factors submitted by the applicant's counsel to justify the complexity of Commercial Cause No. 27 of 2023; as rightly 9 argued by the respondents, have not been deposed in the applicants' affidavits. As such, this Court cannot rely upon the subject factors in evidence. The law abhors the opposite approach. Consequently, the applicants' evidence to prove the stated quantum remains wanting. As a matter of law, an applicant in an application of this nature, is not discharged of his duty to prove the amount he claims. Reference is made to Abdula Aziz Laiani's and Registered Trustees of Tanzania Presbyterian Church's case (^p^. However, since granting of an application for security for costs rests on the sole discretionary powers of the court, as aforesaid, in absence of the required evidence from the applicants, I find it pertinent to justifiably exercise such powers at this point. Looking at the circumstances in this application, I award the quantum of TZS 20 million as security for costs in Commercial Cause No. 27 of 2023. The respondents are further ordered to deposit the subject amount in court within 14 days of this ruling. Nonetheless, costs of this application shall follow the outcome of the main suit. 10 It is so ordered. Judge June 7th, 2024 Ruling delivered this 7th day of June 2024 in the presence of Advocates Samson Lukumay for the applicants; and Rehema Samwel holding the brief of Mr. Robert Rutaihwa, advocate for the respondents. i \ ; I V\\ C.K.K/Morris Judge June 7th, 2024