Misc

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. CIVIL APPLICATION NO. 16972 OF 2024 (Arising from the decision of Sumbawanga District Court at Sumbawanga in Taxation Cause (Bill of Costs) No. 20 of2023 dated 7th day ofJune, 2024) TAIFA GAS TANZANIA LIMITED...................................................APPLICANT VERSUS SITAMANI HAMIDU KIMBANGA............................................ RESPONDENT RULING 21st October & 16th December, 2024 MRISHA, J. The application at hand was heard ex parte due to absenteeism of the respondent despite there being proof that he was duly served and aware of the summons filed by the respondent electronically. By way of a Chamber Summons which is supported by her advocate’s affidavit, the Applicant Taifa Gas Tanzania Limited has prayed for the orders that: 1. This honourable court be pleased to grant leave to the applicant to apply for Reference out of time against the decision of Sumbawanga District 1 Court in Taxation Cause (Bill of Costs) No. 20 of 2023 dated 7th June, 2024 by Taxing Officer, Hon, Ndelwa-SRM. 2. Costs to follow the event. 3. Any other order (s) as this Honourable court may deem fit and just to grant. When the matter came up for hearing, the counsel for the applicant urged the court to allow hearing of this application to be conducted by way of written submission and, based on the reason that the respondent had failed deliberately to appear and to defend his case, this court granted that prayer. The applicant filed her respective written submission timely. Hence, the present ruling. Submitting in respect of his client’s application, Mr. Lugaila prayed to adopt the filed affidavit and went on to submit that he represented the applicant in Civil Case No. 10 of 2022 and Taxation Cause (Bill of Costs) No. 20 of 2023 before the District Court of Sumbawanga at Sumbawanga (the trial court). That through his first advocate one Mr. James Lubusi, the respondent prayed for several adjournments of the former civil case until on 21.08.2024 when his second (new) advocate who was Mr. Samwel Kipesha, prayed before the trial court that the said civil case be withdrawn with leave to refile it. 2 That upon such prayer, the trial court granted the same with costs. Thereafter, the applicant’s counsel applied to be availed with a copy of the trial court’s order so that he could file Taxation Cause (Bill of costs) against the respondents, but in vain. Thus, seeing that the time for filling such application was about to expire, he decided to file with the trial court Taxation Cause No. 20 of 2023 without attaching a copy of the trial court’s order in order to avoid filing the same out of time. That upon filing such Taxation Cause, the respondent filed a Preliminary Objection against the same on the ground that the said Application was incompetent for failure to attach the order awarding costs. Thereafter, the objection was heard by way of written submissions and after both parties had filed their written submissions, the trial court scheduled the matter to come before it on 08.04.2024 for Ruling. However, according to the applicant’s counsel, from there the said Ruling was not delivered until on 11.07.2024 when he was informally notified by a court clerk that the Ruling on Preliminary Objection against Taxation Cause (Bill of Costs) No. 20 of 2023, had been delivered on 07.06.2024. Upon learning that, the applicant’s counsel quickly sent his friend with an official letter dated 12th July, 2024 to go and collect a copy of that ruling from the trial court. His friend collected and sent it to him through electronic means and, after reading it, he 3 confirmed that the trial court had sustained the said objection and struck out the Bill of Costs for failure to attach the order awarding costs. That on 13th July, 2024 his firm conducted a weekly meeting with the applicant, his client and the latter instructed him to apply for extension of time on the reasons that the applicant’s counsel lost track of the matter because there was more than one case between the parties herein in with one at Sumbawanga Resident Magistrate’s Court to wit: Small Claim Case No. 1801 of 2024, another at the Resident Magistrate’s Court which is Small Claim Case No. 27641 of 2024 and, Bill of Costs No. 20 of 2023 which is the subject of the present application. He added that those cases were sometimes scheduled on the same date as for instance, on 28th May, 2024, Bill of Costs No. 20 of 2023 at Sumbawanga and Small Claim Case No. 27641 of 2024 at Kisutu Dar es Salaam were once scheduled on the same date. Secondly, he submitted that the time for filing reference with this court, had expired on the 28th June, 2024, making the applicant delay by a total of 16 days. Thirdly, that the applicant became aware of the decision intended to be challenged on the 11th day of July 2024 after making several calls to the trial court clerk asking for a copy of the trial court’s ruling and, it took the applicant just two days to consult her advocates for filing of the present application. 4 Fourthly, he submitted that there are illegalities issues involved in the decision of the trial court which is intended to be challenged which are: 1) That the trial court had struck out the Bill of Costs No. 20 of 2023 on the ground that the law requires the order awarding costs to be attached to the Bill of Costs, but it never stated exactly which provision of the law has such requirement. 2) That the trial court’s decision in respect of Bill of Costs No. 20 of 2023 indicates that both parties were present on 7th June, 2024 when the ruling was delivered, but it does not state who stood for which party because the truth is, no one between the parties to such case, appeared before the trial court on that date because both of them were not aware of the ruling date. Submitting in respect of reasons for seeking extension of time, Mr. Lugaila argued that it is a well-established principle that the word “Ufiicittt cause” has not been defined by any statute therefore, the courts are urged to consider facts of each case on their own by looking on the following factors; (i) Where one alleges illegality (ii) The length of the delay (iii) Reason for the delay (iv) Promptness and diligence in filing of the Application for extension of time and (v) Overwhelming Chance of Success. 5 Regarding the ground of illegality, the learned counsel submitted that when one alleges illegality in the decision intended to be challenged, that in itself, amounts to a sufficient cause to extend time. To support his argument, Mr. Lugaila referred the court to the case of Amour Habib Salim vs Hussein Bafagi, CAT Civil Application No. 52 of 2009 where it was stated that: In our view when the point at issue is one alleging illegality of the decision being challenged the Court has a duty, even if it means extending the time for the purpose to ascertain the point and if the alleged illegality be established, to take appropriate measures to put the matter and the record right". In that connection, the applicant’s counsel humbly submitted that the decision intended to be challenged is tainted with illegality due to the fact it was reached without considering the provisions of the law that govern the Bill of Costs itself (Specifically Order 55(1)-(4) of Advocates Remuneration Order, GN No. 263 of 2015). He also submitted that the decision reached by the Taxing Officer to strike out the Bill of Costs (Taxation Cause No. 20 of 2023) was not based on the law, but rather on opinion, because the matter was struck out on the ground that there was no order awarding costs attached to the Application without citing any provision of the law which provides so. 6 He further submitted that, however Order 55 of GN NO. 263 of 2015 is the one that governs the presentation of the Bill of Costs for taxation, but it has never stated that an application for Bill of Costs must be accompanied by the order awarding costs. To be more precise, the learned counsel argued that the casefiles for the Bill of costs and the main case from which the Bill of Costs is filed, are always attached together, but also those files are normally attached together so that the Taxing Officer can satisfy himself on two things; one, on claim for attendance by looking if the applicant was present on the dates on which the disbursement is claimed, and two, on claim for disbursement by looking at the court’s exchequer receipt for each of the filed documents before the court. He concluded that the trial court’s reasoning that the attachment of the order awarding costs to the bill of costs is a legal requirement, is not valid as there is so such Order in the entire GN No. 263 of 2015 which has stated so. Besides, the applicant’s counsel cited the case of Augustine Mkweji vs Anaziata Ngairo, Misc. Land Application No. 54 Of 2021 and argued that in that case the High Court extended time for reference on the ground that the argument on whether the order awarding costs must be attached to the Bill of costs, is a serious legal argument that needs court’s consideration on merit. 7 I have read the chamber summons, the affidavit in support of the same, the records of the trial court as can be seen at the attachments to the instant application and, the submission of the counsel for the applicant. It appears that the application at hand is made under Order 8 (1) and (2) of the Advocates Remuneration Order, GN No. 263 of 2015 (the Advocates Remuneration Order). The same provides that: "8~11) The High Court may subject to order 7 extend the time for filing a reference upon sufficient cause. (2) An application of time shall be made by way of chamber summons supported by an affidavit and be served to parties at least seven days before for hearing date” Order 7 of the Advocates Remuneration Order simply provides intel alia that a party who is aggrieved by a decision of the Taxing officer, may file reference to a Judge of the High Court within 21 days from the date of the order awarding costs. The applicant herein did exactly what was required of him by the above provisions of the law. In her application, she has moved the court to grant her leave to apply for reference out of time against the decision of Sumbawanga District Court in Taxation Cause (Bill of Costs) No. 20 of 2023 and, the reasons for such application are as stated in her counsel’s adopted affidavit and the 8 submission in chief which have been summarised above. Hence, I need not reproduce them. My task now is to determine whether the applicant has assigned some good reasons for her application to be granted. It is a common ground that what amount to good reasons/cause has not been defined under the statutes, but through caselaw, it has been stated that what amounts to good cause is upon the discretion of the court and it differs from case to case, but basically various judicial pronouncements define good cause to mean, reasonable cause which prevented the applicant from pursuing his action within the prescribed time. (See: Jumanne Hassan Bilingi vs Republic, Criminal Application No. 23 of 2013 (CAT unreported). It should also be recalled that there are some guidelines to be complied with by the courts when exercising discretion to ether grant or refuse to grant extension of time. In the case of Lyamuya Construction Company Ltd vs Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application no. OF 2010, the Court of Appeal laid down four factors to be considered before granting any application of extension of time. The same are: (a) The delay should not be inordinate; (b) The applicant must account for all the period of delay; 9 (c) The applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; (d) If the Court feels that there are other sufficient reasons such as existence of a point of law of sufficient importance; or the illegality of the decision sought to be challenged. Reading the above factors as were outlined in the case of Lyamuya Construction (supra), along with the decision of the Court of Appeal in Jumanne Hassan Bilingi (supra), it is obvious that good cause may in the discretion of the court, be construed on a case-to-case basis as not always such factors do apply cumulatively in deciding whether or not to grant extension of time. Basically, the circumstances of one case may differ with those in another. In the instant application, there are two major reasons, I suppose so, which have prompted the applicant to apply for extension of time. It is her argument that her counsel lost track of the date of ruling which is now challenged before this court, but soon after accessing a copy of that ruling, she instructed her advocate to file this reference in order to challenge the said ruling. I have gone through the impugned ruling of the trial court and noticed that in the course of making his submission against the preliminary objection filed by the respondent as it is shown at page 3 of the trial court’s impugned ruling, the applicant’s counsel assigned the reason for not attaching the order for bill of 10 costs at the time of filing Taxation Cause (Bill of Costs) No. 20 of 2023 the subject of this application. I propose to reproduce the relevant part of the said ruling, for ease of reference, as hereunder: “The applicant’s counsel submitted that the reason for not attaching drawn order or decree awarding (sic) cost to the applicant is that up to 17t October, 2023 the said order was yet to be suppled to the Applicant and the time limit to file the bill of (sic) cost was coming to an end...He said the applicant fled this application in order to adhere to the time limit of filing the application for bill of cost. "[Em/hissis is mine] Flowing from the above excerpt, it tells it all that the applicant was not only diligent in prosecuting her application for bill of costs before the trial court, but also could attach a copy of the order for bill of costs timely had the same been availed to her advocate in time. It was due to trial court’s failure to have the same be availed to her advocate on time that she failed to attach the same in the course of filing the application which she now challenges before this court. Based on the foregoing circumstances, I do not think it will be prudent to blame the applicant for failure to attach with the Application for costs, a copy of the drawn order awarding costs of which he was not availed with. Hence, I find that what the applicant’s counsel has assigned, is a sufficient reason as 11 far as the applicant’s application is concerned and, it is my settled view that the applicant’s 16 days delay to file the instant application is not inordinate, but a technical delay which is excusable under the law because the trial court records show that during such period, the applicant’s counsel was busy looking for a copy of ruling sought to be challenged. (See: Erica Herman vs Magdalena Herman Muna Gidadi (Legal Representative of the Late Herman Muna Gidadi), Civil Application No. 130/’2 of 2019 CAT at Arusha, unreported). Besides, the question which I am supposed to determine as of now, is whether it is a legal requirement to attach a copy of the order awarding costs at the time of filling Application for Bill of Costs (Taxation Cause). To the applicant’s counsel, the reasoning of the learned trial magistrate that the application for bill of costs file by the applicant was incompetent for failure to attach a copy of the order awarding costs, is illegal because the same was neither backed by any provisions of the law, nor based on Order 8 of the Advocates Remuneration Order which governs filing of Bill of Costs. The learned counsel has also distinguished all cases which were cited by the respondent’s counsel during hearing of the preliminary objection which the latter relied on to show that it is a mandatory requirement to attach a copy of drawn order awarding costs to the Application for Bill of Costs. 12 Without wasting much time, I wish to say that I have thoroughly gone through the provisions of Order 4 and 55 of the Advocates Remuneration Order which govern filing of the Bill of Costs and found that the same do not provide, as a mandatory legal requirement, that at the time of filing such bill of costs, the party claiming the same should attach a copy of the drawn order awarding costs. Sub Order (4) of Order 55 which I find to be relevant, provides that: “Evey bill of costs which shall be fled shall be fled for taxation shall be endorsed with the name and address of the advocate by whom it is lodged and also the name and address of the advocate for whom he is agent” It is apparent from the said provision that the requirement to attach a copy of drawn order for bill of costs is not a legal requirement. More so, at pages 4 to 5 of the impugned ruling, the learned trial magistrate reasoned thus: "It is certain that the application for bill of (sic) cost is governed by the Advocates Remuneration Order of 2015, G.N No. 263 of 2015. I have carefully passed through the provisions of the cited law and (sic) find that the application for taxation of bill of (sic) cost is filed pursuant to Order 4 and 55 of the Advocates Remuneration Order of 2015 (supra) whereas Order 4 provides that: 13 A decree holder my, within sixty days from the date of the order awarding costs, lodge an application for taxation by filing a bill of costs prepared in a manner provided for under Order 55.” Having passed through the above provisions of the Advocate Remuneration (sic) Orders of 2015 (supra) it is certain to me that for a party to file an application for bill of cost there must be the order awarding costs. In that regard, as rightly submitted by the respondent's counsel and by considering the position in the cases of Nile Equitorial Subsidiary Action Program (NELSAP) (Supra) and the case of Augustino Mkweji (supra) it is my settled view that it is the legal requirement for the applicant to attach the drawn order or decree awarding him (sic) cost in order for the court to satisfy itself on the existence of the order and where the same emanates” Looking at the above excerpts, it appears that the learned trial magistrate had the view that lodging of an application for bill of costs is governed by Orders 4 and 55 of the Advocates Remuneration Order which is correct. However, I am with all due respect to the learned trial magistrate, not persuaded to buy her position regarding the requirement of attaching a drawn order awarding costs at the time of filing an application for bill of costs. 14 I say so because first, the provisions of the law governing the filing of bill of costs to wit: Orders 4 and 55 of the Advocates Remuneration Order, do not provide that in filing bill of costs, the party entitled to costs should attach a drawn order awarding costs. Order 4 merely provides for the time limit within which to file an application for bill of costs which emanates from the order awarding costs, and Order 55 provides for the manner of preparing a bill of costs. Thus, none of the said provisions of the law provide for the requirement to attach a copy of the drawn order awarding costs with the application for bill of costs. Secondly, the cited cases of Nile Equitorial Subsidiary Action Program (NELSAP) and Augustino Mkweji (supra) which the learned trial magistrate relied on to substantiate her reasoning, do not provide that it is a legal requirement for the party entitled to costs to attach a drawn order awarding costs at the time of filing an application for bill of costs. For instance, in the case of Equatorial Subsidiary Action Program (NELSAP) (supra), it was observed that attaching a copy of ruling in filing a reference is not a legal requirement, but a good practice since the court cannot make any decision on a reference without a copy of the impugned ruling. However, in our case, the application under scrutiny, was for bill of costs. 15 Also, in the case of Augustino Mkweji (supra), the court just referred to the submission of the counsel who argued that attaching a copy of drawn order in filling a bill of costs, is a legal requirement, but did not say it is actually so. The court dealt with grounds for extension of time. This means therefore, that all the cited cases are distinguishable to the circumstances of the case at hand and the learned trial magistrate, so to say, had fallen into the trap when she subscribed to the position taken by the counsel for the respondent without reading the cases referred to her by the respondent’s counsel. Had she gone through them, she would not reason as she did. Besides that, I am not inclined to go along with the trial magistrate’s reasoning that failure to attach a copy of drawn order awarding costs could make the trial court unable to ascertain existence of the order awarding costs and where it emanated from. This is because the records indicates clearly that the drawn order which led to filing of Taxation Cause (Bill of Costs) No. 20 of 2023, was actually made by none one else, but the trial magistrate and the casefile was kept at the trial court’s civil registry which means it was just a matter of calling for it and verify if the items listed in the prepared bill of costs tally with the dates of attendance and attached receipts, as rightly argued by the counsel for the 16 applicant. Hence, it cannot be said that the trial court could not ascertain the existence of a drawn order and its root cause. The foregoing entails that since the applicant’s counsel has alleged existence of illegality on the decision of the trial court, the court’s intervention is inevitable so as to pave the way for it to ascertain whether the same has been established and if so, to take appropriate measures to put the matter and record right. In the premise, I find and hold that the present application is meritorious and I hereby by grant it. As for costs, I refrain from making any order in that respect because I see no contribution by the respondent in causing the applicant’s delay to file the intended reference. The applicant is thus, given 14 days from the date of this ruling within which to lodge her reference with the court through her advocate. Order accordingly. A.A. MRISHA JUDGE 16.12.2024 DATED at SUMBAWANGA this 16th day of December, 2024. A.A.MRISHA JUDGE 10.12.2024 17