STEAM POWER T LTD VS NIC BANK T LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT ARUSHA MISC. COMMERCIAL APLICATION NO. 4 OF 2016 {Arising from Misc. Commercial Application No. 5 of 2017 based on Commercial Case No. 23 of 2013 and Misc. Commercial Application No. 10 of 2013 STEAM AND POWER (T) LIMITED.................................. 1st APPLICANT MR. RHODICE SIMON MOSHI................................... 2nd APPLICANT MRS. ELIZABETH RHODICE MOSHI.......................... 3rd APPLICANT VERSUS NIC BANK TANZANIA LIMITED................................... RESPONDENT RULING MWANDAMBO, J:- The Applicants are seeking an order for extension of time to file an application for review from a ruling of this Court in Miscellaneous Commercial Application No. 5 of 2017 made on 27th September 2017. The application made under section 4 (1) of the Law of l imitation Act, Cap 89 [RE. 2002] is by way of chamber summons supported by an affidavit of Rhodice Simon Moshi, 2nd Applicant and resisted by a counter affidavit deponed to by Maryam Ramadhani Mrutu learned Advocate. The facts giving rise to the application present an interesting but somewhat unfortunate state of affairs. The Applicants lost in a bill of costs arising from Commercial Case No. 23 of 2013 made by the Taxing officer on 27t1' April 2017. Aggrieved, the Applicants sought to prefer a reference before a judge of the Court pursuant to Order 7(1) and (2) of the Advocates Remuneration Order, 2015. 1 Since they were late in doing so, the Applicants sought and obtained an order for extension of time in Misc. Commercial Application No. 5 of 2017 in a ruling by Songoro, J made on 27th September 2017. Believing that all was well for them to challenge the Taxing Officer's decision, they filed Misc. Commercial Reference Case No. 4 of 2017. That Reference was met with two preliminary objections challenging its competence on account of defects in the ruling and drawn order extracted from it referring to an order alien to the application resulting into the said ruling. Mruma, J found no difficult in sustaining the preliminary objections and struck out the reference in a ruling delivered on 22nd March 2018. Ordinarily, the Applicants would have preferred a fresh application for Reference following the order striking out Misc. Commercial Reference No. 4 of 2017 but they could not do so in this case without first rectifying the defects in the ruling and order which extended the time to challenge the Taxing Officer's decision by way of Reference. Acting on the remarks made by Mruma, J on what could have been done to cure the defects in the fateful ruling and drawn order, the Applicants filed this application to extend time within which to prefer a review from the ruling before lodging an application for Reference. The application was lodged on 13th April 2018, a period of 21 days from the date when Misc. Commercial Reference No. 4 of 2017 was struck out. The Respondent has taken issue with the affidavit in support of the application taken out by Rhodice Simon Moshi as one of the applicants who introduces himself as one of the directors of the 1st Applicant and a spouse of the 3rd Applicant. It is contended that the deponent does not say whether he has authority to prefer the application and swear an affidavit on behalf of the rest of the Applicants. The Respondent says so in paragraph 3 of the counter affidavit particularly so because the deponent has long ceased from the 1st Applicants Company. Besides, the Respondent contends that the Applicants have not disclosed sufficient cause for the order sought and prays for the dismissal of the application. By an order of this Court (Sehel, J) made on 5th June 2018 the learned Advocates filed their respective written submissions for and against the application. Mr. John Lundu's submissions were, by and large, a recount of the averments in the affidavit and urged the Court to grant the application relying on Mobrama Gold Corporation Limited Versus Minister for Energy and Minerals and 2 Others [1998] TLR 42 for the proposition that Courts should not generally deny extension of time if such denial would stifle the applicant's case unless it i s established that the same constitutes procedural abuse or contemptuous default and that the Applicant will not suffer any prejudice. Mr. D'Souza learned Advocate for the Respondent began his submission by challenging the approach in seeking extension of time for review instead of i nvoking Rule 75 of the High Court (Commercial Division) Procedure Rules, 2012. I need not be detained on this argument as I am satisfied that the same is legally untenable for one or more of the following reasons. One, the point has not been made a preliminary objection on a point of l aw to be argued and determined as such. Two, it has not been suggested that the defects in the ruling sought to be reviewed fall under the slip rule to be corrected under Rule 75 of the Court's Rules but even if that was the case, no authority has been placed before the Court to support the contention that a party in the position of the Applicants is precluded from resorting to review on account of an apparent error on the face of t he ruling. In the upshot, I would, as I do reject that argument. The second point canvased by Mr. D' Souza relates to lack locus standi by the 2"d Applicant taking out an affidavit on behalf of the 1st and 3'"* Applicants without proof of authority to that affect by way of a power of Attorney. The learned Advocate cited a decision of this Court in Parin A. A. Ahmed Jaffer Another Versus Abdulrasul Ahmed Jaffer & Two Others [1996] TLR 111 at page 114 for the argument that a person can act for the other in court where such person is authorized to do so by way of a power of attorney in pursuance of Order III rule 3 2(a) of the Civil Procedure Code Cap 33 [R. E. 2002]. The learned Advocate submitted that no evidence has been placed before the Court authorising the Applicant to bring the application on behalf of the 1st and 3rd Applicants more so because the evidence available through annex NIC-1 to the counter affidavit shows that the 2nd Applicant retired from the 1st Applicant as a director. The learned Advocate cited also Lujuna Shubi Ballonzi Senior Versus Chama cha Mapinduzi [1996] TLR 203 in which this Court(Samatta,JK as he then was) discussed locus standi but I think I need not make reference to it because I hold the view that the context in which it was decided is not similar to the instant application. Mr. Lundu did not seek to rebut the Respondent's submissions and I think perhaps wisely so. There is no longer any controversy that the deponent to the affidavit ceased to be a director of the 1st Applicant as evident from his own affidavit deponed on 9th June 2017 in Miscellaneous Commercial Application No. 5 of 2017. A copy of the affidavit has been annexed to the Respondent's counter affidavit marked NIC -1 but yet again no reply to it was filed to rebut the Respondent's contention. In the circumstances I would find no hesitation in endorsing Mr. D'Souza's argument that the 2nd Applicant had no authority to lodge the application and swear an affidavit on behalf of the 1st Applicant who is for all intents and purposes, not related to the 2nd Applicant. In the same vein the fact that the 2nd Applicant is a spouse of the 3rd Applicant does not in itself legally make the two one and the same to a like extent it is from the biblical point of view as expressed in Genesis 2: 23 - 24. Unlike in the Bible, in law the two are not one and the same so much so that either of them can legally take out proceedings as it were on behalf of the other. In the upshot, I would respectfully, agree that the 2nd Applicant has no locus standi to represent the 3rd Applicant in the absence of any authority from her. Having so found and held the next issue for my determination remains, what consequences would befall the application? Luckily, this is not the first time the 4 Court is dealing with the same issue. In Karata Ernest & Others vs. Attorney General HC (DSM) Civil Appeal No. 95 of 2003 (unreported) Nyerere, J was confronted with a similar issue and held that an affidavit deponed by one of the applicants without an authority from the rest of the applicants is fatal and renders the application incompetent. That decision was followed later in Said Yusuf Tanzania and Others vs. Registration Insolvency Trustees Agency (RITA) and Attorney General, HC (Main Registry at Dar es salaam), Miscellaneous Civil Application No. 37 of 2014 (unreported). I have no reason to differ with the above authorities and I would unhesitatingly follow them in this application and hold that the application supported by an affidavit of Rhodice Simon Moshi (2nd Applicant) without authority i s defective rendering the application incompetent. Having so held I find it academic discussing the merits of the application. In fine the application is hereby struck out for being incompetent. The Respondent is awarded its costs. Order accordingly 5