REAGAN V MULTINATIONAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA REFERENCE NO. 26504 OF 2023 REAGAN CHARLES........................................................................... APPLICANT

VERSUS MULTINATIONAL PROCUREMENT SERVICES LIMITED............ RESPONDENT

RULING 27/6/2024 & 2/8/2024 ROBERT, J / This ruling arises from a reference filed by the applicant challenging the ruling of the Resident Magistrate's Court of Geita in Taxation Cause No. 02/2023, dated 17th November 2023. The applicant contends that the Taxing Officer made several errors in the determination of the case, including raising and deciding on issues not properly pleaded, making contradictory orders, and failing to consider critical evidence and issues related to the remuneration agreements between the applicant and the respondent for legal services rendered between 2020 and 2022. i The applicant, a practicing advocate, filed Taxation Cause No. 2 of 2023 at the Resident Magistrates' Court of Geita seeking to enforce the remuneration agreements between him and the respondent for the professional services rendered by the applicant to the respondent pursuant to Order 3 and 5(1), (2) and (3)(a) of the Advocates Remuneration Order, 2015. The applicant alleges that he was engaged by the respondent to prosecute several cases and provide other legal services from 2020 to 2022. The respondent, however, denies these allegations, asserting that it had a retainership agreement with a different law firm, Kabonde and Magoiga Company Advocates and did not engage the applicant directly. The respondent also contends that the applicant did not have a valid practicing certificate in

2020. The Taxing Officer made a finding that there was no contract between the parties to amount to a claim by the applicant and dismissed the application. Aggrieved, the applicant filed this reference challenging the legality and fairness of the Taxing Officer's ruling on several grounds. The applicant seeks a number of reliefs including orders that: (i) It was illegal for the Taxing officer to raise the issue of company capacity to contract on his own motion and determine it without hearing the parties; (ii) It was 2 illegal for the Taxing Officer to raise the issue of company capacity to contract while it had not been pleaded (deposed); (iii) It was illegal for the Taxing Officer to give contradicting orders; (iv) It was illegal for the Taxing Officer to fail to determine issues raised; (v) It was illegal for the Taxing Officer to make a decision against the applicant without considering the applicant's evidence; (vi) It was illegal for the Taxing Officer for not deciding on other matters; (vii) It was illegal for the Taxing Officer to dispense with the respondent's burden of proving the allegation that the applicant was invited by either Kabonde and Magoiga law firm or Kabonde and Magoiga Company advocates or Mollohan Kabonde to prosecute the commercial cases; (viii) It was illegal for the Taxing Officer not to equally apply the law on capacity to contract on Kabonde and

Magoiga law firm, Kabonde and Magoiga Company advocates and Advocate Mollohan Kabonde, as well as the respondent's capacity to contract when he allegedly entered into the alleged retainership agreement just like he did suo motu apply it against the applicant; (ix) The Taxing Officer wrongly applied the provisions of section 38 of the Companies Act when deciding the issue of capacity to contract as the provisions do not carry evidence of capacity; (x) An order setting aside the decision of the Taxing Officer; (xi) An order enforcing the remuneration 3 agreements between the applicant and the respondent; (xii) Costs of this reference and the taxation cause number 02 of 2023 in the resident magistrates' Court. The application is supported by an affidavit sworn by the applicant and opposed by the respondent. Hearing of this matter proceeded by way of written submissions. The applicant appeared in person, unrepresented by legal counsel, while the respondent was represented by Mr. Steven Makwega, learned counsel. Starting from whether the Taxing Officer acted illegally by raising the issue of company capacity to contract on his own motion and deciding on it without hearing the parties. The applicant argues that the Taxing Officer raised the issue of company capacity to contract without prior notice to the parties, thus denying them the opportunity to address this issue. He maintained

that the only remedy available is to declare the issue a nullity as it was illegally raised. To support his argument, he cited the case of Wegesa Joseph Nyamaisa v.Chacha Muhogo, Court of Appeal of Tanzania, Civil Appeal No.161 of 2016, at Dar es salaam. The respondent, on the other hand, asserts that the issue of Company's capacity to enter into contract was relevant because it was deposed by the parties in their respective Affidavits, counter Affidavit and Affidavit in reply in Taxation cause No. 2/2023. 4 Upon review, it is evident that the issue of the respondent's capacity to contract was raised by the Taxing officer but was not adequately addressed in the context of the affidavits and submissions presented. The respondent's defense did not focus on capacity to contract but rather on the denial of engagement and the existence of the retainership agreement. The Taxing Officer's introduction of this issue was extraneous and did not pertain to the primary matters at hand. By raising and determining on this issue without giving parties a chance to respond, the Taxing Officer violated the principles of procedural fairness and the right to be heard. Legal issues should be addressed based on the pleadings and evidence presented by the parties, not introduced independently by the court without prior notice. On whether the Taxing Officer's orders were contradictory, the applicant

claims that the Taxing Officer issued contradictory orders, leading to confusion and inconsistency. Specifically, the applicant highlights that the Taxing Officer acknowledged the existence of remuneration agreements in one part of the ruling, yet simultaneously dismissed the applicant's claims based on these agreements due to the alleged lack of capacity to contract. He maintained that his contradiction is illegal and cited the case of Anthony M. Masanga v.Penina and another, Court of Appeal of Tanzania, Civil 5 Appeal No. 118 of 2014, at Mwanza to support his argument. The respondent did not respond on the perceived contradictions in the Taxing Officer's decision. A thorough review of the Taxing Officer's ruling reveals inconsistencies that cannot be reconciled through interpretation alone. The recognition of remuneration agreements implies their legal validity and enforceability. Conversely, the dismissal of the applicant's claims based on an unsubstantiated issue of capacity to contract introduces a fundamental contradiction. Judicial decisions must be internally consistent to be clear and enforceable. Contradictory orders create legal uncertainty and undermine the integrity of the judicial process. This inconsistency warrants the setting aside of the Taxing Officer's decision. On the Taxing Officer's failure to determine all issues raised, the applicant argues that the

Taxing Officer failed to address all pertinent issues raised during the proceedings. Specifically, the applicant highlights that the Taxing Officer did not consider the broader scope of the remuneration agreements, which covered legal services beyond the eight commercial cases of 2020, including taxation and execution causes, miscellaneous civil applications, the High Court appeal of 2022, and employment-related services. The applicant 6 asserts that by neglecting these issues, the Taxing Officer failed to provide a comprehensive decision on the matters in dispute. To support his argument, he cited the case of Metro Petroleum Tanzania and others v. United Bank of Africa, Civil Appeal No. 147 of 2019, CAT at Dare es salaam. The respondent counters that the Taxing Officer addressed all relevant issues within the scope of the pleadings and submissions. Counsel for the respondent maintained that the applicant's chamber summons prayed for the enforcement of his remuneration agreement and cost of the said application only. He maintains that these were the primary matters under dispute and were sufficiently addressed in the context of the ruling. This Court is aware that, a judicial decision must address all issues raised by the parties to ensure a comprehensive and fair adjudication. In this case, the Taxing Officer's ruling appears to have narrowly focused on the commercial cases of

2020, without adequately considering the broader scope of the applicant's claims. This failure to address the entirety of the remuneration agreements and related legal services constitutes a significant oversight. The Taxing Officer should have analyzed the evidence and provided determinations on all issues raised, including the taxation and execution causes, miscellaneous civil applications, the High Court appeal, 7 and employment-related services. The failure to do so deprived the applicant of a complete adjudication of the claims. The Taxing Officer's failure to determine all issues raised by the applicant is a procedural error that undermines the comprehensiveness and fairness of the ruling. With regards to the issue of consideration of the applicant's evidence, the applicant asserts that the Taxing Officer failed to adequately consider the evidence presented in support of his claims. Specifically, the applicant provided affidavits, annextures, and detailed submissions to establish the existence of remuneration agreements and demonstrate the provision of legal services to the respondent. The applicant contends that the Taxing Officer either overlooked or undervalued this evidence, leading to a flawed decision. The respondent counters that the Taxing Officer did consider the applicant's evidence as indicated at page six last paragraph. A judicial decision must reflect a

careful and comprehensive consideration of all evidence presented. The applicant provided substantial evidence, including affidavits and documentary proof, to support the existence of remuneration agreements and the provision of legal services. 8 The Taxing Officer's ruling, however, does not demonstrate a thorough evaluation of this evidence. The decision appears to rely heavily on the respondent's assertions and the unpleaded issue of capacity to contract, while failing to address the detailed evidence submitted by the applicant. This oversight indicates a lack of proper judicial consideration and undermines the fairness of the ruling. The Taxing Officer's failure to adequately consider the applicant's evidence constitutes a significant procedural error. A proper evaluation of the evidence should have been //■ X. rf’’ / \ \ •*'.? \\ conducted to ensure a fair and just decision. Given the procedural and substantive errors identified, particularly the introduction and determination of extraneous matters without giving the parties a chance to respond, and the failure to determine all issues raised during the proceedings and by the applicant, it is appropriate for this Court not to make a determination on the issues touching the merits of the matter. Instead, the case should be remitted back to the Taxing Officer with directives for a fresh hearing. Consequently, the ruling of

the Resident Magistrate's Court of Geita in Taxation Cause No. 02/2023 is hereby set aside. The matter is remitted back to the Taxing Officer for a fresh hearing, ensuring that all parties are given 9 a fair opportunity to present their arguments and evidence on all issues raised. The Taxing Officer is directed to determine all issues raised by the parties comprehensively and fairly. Each party shall bear its own costs considering multiple procedural errors in the Taxing Officer's ruling. It is so ordered. 10