tan swiss enterprises limited vs mariam joseph gwerder mariam gwerder miriam 2023 tzhc 22004 13 october 2023

UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF MOROGORO MOROGORO DISTRICT REGISTRY AT MOROGORO MISC CIVIL APPLICATION NO. 26 OF 2023 [Arising out of Taxation Case No. 10 of2022, Tan-Swiss Enterprises Limited u Miriam Joseph Gwerder@ Mariam Gwerder@ Miriam, HOTat Morogoro, By Hon.A. Mmbando, DR] TAN-SWISS ENTERPRISES LIMITED APPLICANT VERSUS MIRIAM JOSEPH GWERDER@MARIAM GWERDER@MIRIAM RESPONDENT RULING Date of last Order: 30/08/2023 Date of ruling: 13/10/2023 BEFORE: G. P. MALATA,3 This ruling is in respect of prayer for extension of time by Tan Swiss Enterprises Limited to file reference out of time. The prayer is brought Page 1 of 14 by way of chamber summons under Order 8(1) of GN No. 264 of 2015, The Advocates Remuneration Order and is supported by affidavit sworn Jackson Liwewa, learned counsel for the applicant. In nutshell the facts of the application are gleaned from the applicant's affidavit that, the application is resultant of the taxation case no. 10 of 2022 originating from Misc. Civil Case no 06 of 2021 filed on 30/11/2021 in the High Court of Tanzania at Morogoro. The said petition contained 5 folios and annextures of 74 pages to peruse through. That upon receiving the petition on 02/12/2021 he scrutinised the document and interview the applicant's Principal officer in the light of the entire paper work and answers to the petition which were prepared. He stated that, on 29/04/2022 the respondent filed a notice to produce secondary evidence which was received on the same day and it contained 70 sheets which were read through by the learned counsel for the applicant in order to determine its validity. The review of all those documents made the case complex, unfortunately the deputy registrar treated the case as simple one. That on 14^*^ December 2021, the applicant filed the answer to the petition which contained 3 folios and 3 annextures of 17 pages. The matter was assigned to Hon. Ngwembe, J (as he then was). That 11 Page 2 of 14 appearances were made including long hearing of two witnesses on the applicant's side and four days of composing submission of a no case to answer. The matter commenced on 01/12/2021 and concluded on 11/07/2022 which means it lasted for seven months in court. The Registrar treated this as a short time. That the submission of no case to answer reflects a well-grounded analysis of factual issues and application of five case law. the labour and time spent in composing the submission was not taken into consideration by the taxing master as reflected on page 7 of the ruling. A verbal submission of no case to answer was taken to conclude the case. That, it is the applicant's observation that, bill of costs was taxed at a level which did not take into consideration the attraction of young professionals in the field which is contrary to the tenets of taxation of bill of costs. That the ruling of bill of costs was delivered on 15^^ March 2023, however the ruling was not ready for collection at a time. That, a notice of preferring reference to this court was filed on 21/03/2023 seeking for a copy of a ruling in order to file this reference and the same was served to the respondents on 23/03/2023 at Mikumi Page 3 of 14 Morogoro. A reminder reference was filed again on 11/04/2023, reminding the office of Deputy registrar to avail with the copies of ruling and enable the applicant to file reference. From 6^^^ April - 10^"^ April was Easter vacation, on 13/04/2023 the copies of ruling and proceedings were made available to the applicants' counsel and the preparation of this case started immediately and on 18/04/2023 the application of the draft and shared with their client however upon being uploaded for admission, it was rejected for lack of electronic stamp. The document was rectified but the counsel couldn't upload it again because the judiciary website was down. The application has been processed timely. When this application was called for hearing, the applicant appeared through Mr. Jackson Liwewa, learned counsel and the respondent didn't appear. The court ordered the matter to be disposed by way of written submission whereas, the applicant was to file his submission on 09/08/2023 according to the scheduling order the respondent was ordered to file written submission on 23/08/2023 but she didn't comply with the court order. The court therefore proceeded to determine the application ex parte against the respondent. Page 4 of 14 Submitting in support of the application, Mr. Liwewa stated that, the application for extension of time has shown sufficient cause, he cited the case of Benedict Mumefo vs. Bank of Tanzania, Civil Appeal no 12 of 2002, CAT which demands for such requirement. Additionally, he submitted that there is no hard and fast rules of defining the word sufficient cause, to nourish his submission he cited the case of Mary Mchome Mbwambo and another (as joint administrators of the estate of late Giliad Mbwambo) vs. Mbeya Cement Company Ltd [2017] TLR LR 277 at page 238. He submitted that sufficient cause for extension of time in this application is gathered from the affidavit. In law, affidavit is evidence as it was held in the case of East African Cable (T) Limited vs. Spencorn Services Limited, HC, Commercial Division, Misc. Application no. 61 of 2016. It was the applicant's submission that in the present application good cause is founded under paragraph 8 - 16 of Mr. Jackson Liwewa's affidavit which are; first, delay to be supplied with the copy of ruling, that the ruling on the bill of costs was delivered on 15/03/2023 and the applicant received the copies ruling and proceedings on 4/04/2023. This is gathered from submissions and affidavit. Page 5 of 14 Second, the time spent in preparing and filing this application which is a good cause for extension of time as it was held in the case of Nurtaza Motiamed Raza Virani and Mrs. Rubab Nobamed Raza Virani V Mehboob Hassanali Versi, Civil Application no. 448/01 of 2020, CAT (Unreported) at page 12. Third, failure to upload to JSDS due to judiciary website being down for several days and forth upload document was rejected for lack of electronic stamp. Based on the afore mentioned reasons, the applicant has account for all days of delay and has advanced sufficient cause for extension of time, he thus prayed for extension of time to be granted. Having heard the submissions from the applicant, this court commences by stressing the governing principles in granting extension of time. It is settled law that, whether or not to grant extension of time is court's discretionary mandate which has to be exercised judiciously. The law provides that, for extension of time to be granted, the applicant must have shown good cause to the satisfaction of the court. There is, however, no invariable definition or hard and fast rules as to what constitutes "good cause". Page 6 of 14 In the case of Gsward Mwasatu Mwizarubi Vs. Tanzania Fish Processing Ltd, Civil Application No. 13 of 2010 (unreported), the court of appeal stated; i "What constitute good cause cannot be laid by any bard and fast ruies. The term good cause is relative one and is dependent upon the party seeking the extension of time to provide the relevant material in order to move the court to exercise its discretion/' The Advocates Remuneration Order under Rule 7 Provides that; 7.-(l) Any party aggrieved by a decision of the Taxing officer, may fiie reference to ajudge ofthe High Court (2) A reference under order (1), shaii be instituted by way of chamber summons supported by an affidavit and be filed within 21 days offrom the date ofthe decision. Rule 8 under which this application is predicated states that; 8.-(l) The High Court may, subject to order 7extend the time for filing a reference upon sufficient cause. The vital question here remains only one, whether this application bears sufficient cause warranting grant of the application as prayed. 1 Page 7 of 14 This court through the applicant's affidavit and submission managed to gather that the application is premised into three reasons for delay. These are; one, lateness in supply of Ruling by the Deputy Registrar, two, weakness in uploading document into JSDS due to judiciary website being down for several days and three, rejection of documents by the court for want of electronic signature. To start with, reference under the Advocates Remuneration Order Rules, to the High court has to be made within twenty-one(21)days. It is stated that, the ruling was delivered on 15/03/2023. This is evidenced by the ruling itself. However, there is no proof as to when the Ruling was supplied to the applicant as there is no communication between the Registrar and applicant on collection of the ruling for purposes of accounting for a number of days delayed. However, in the applicant's submission, it is stated that, the ruling was availed to the applicant on 04/04/2023. Now giving benefit of doubt to the applicant, this court will start counting the number of days delayed from 04/04/2023. In event therefore, the twenty-one days ended on 25/04/2023. I shall make reliance in section 19 (2) and (3) of the Law of Limitation Act Cap. 89 R.E. 2019. The section reads that; Page 8 of 14 (1)In computing the period of limitation for any proceeding, the day from which such period is to be computed shaii be exciuded. (2)In computing the period oflimitation prescribed for an appeal, an application for leave to appeal, or an application for review of judgment, 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 reviewedyr shall be excluded. (3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of thejudgment on which itis founded shall be excluded. (4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy ofthe award shaii be excluded. This confirms that since the applicant stated that he obtained a copy of ruling on 04/04/2023 then the time is reckoned from that date thus the twenty-one (21) days ended on 25/04/2023. Still the applicant did not file the reference in said time limit. This application for extension of time was filed on 02/05/2023 being twenty-eight(28) days from the date of getting copy of ruling. It should be noted that, from the delivery of ruling the applicant was not estopped from continuing with Page 9 of 14 preparation and drafting of necessary documents for purposes of filing reference. Legally, the applicant is now required to account for each of delay. This is principled by the court of appeal in many decisions including in the case of Eliys Mwakalinga vs. Domina Kagaryki and 5 others. Civil Application no. 120/12 of 2018 (unreported) where the court had these to say; "A delay of even a single day has to be accounted for otherwise there should be no point of having rules prescribing period within which certain steps have been taken." In that regard, I agree with the applicant that delay to be supplied with the copy of ruling/ judgement is good cause for extension up to the time, the applicant was availed with such documents that is to say on 04/04/2023. This exclusion is in accordance with section 19 (2) and (3) of the Law of Limitation Act, supra. That the applicant is therefore, required to account for each day of delay from the lapse of twenty-one days from 04/04/2023/ that is to say from 25/04/2023 to 02/05/2023 as required by the principle in the case of, Elius Mwakalinga. Page 10 of 14 What comes out is that the applicant is therefore required to provide good cause and account for delay from 25/04/2023 to 02/05/2023. This delay is caught within the two reasons of delay that one^ the alleged weakness in uploading document into JSDS due to judiciary website being down for several days and two, rejection of documents by the I court for want of electronic signature. As to the first ground, the applicant has adduced no evidence to that effect in particular from the court that, it is true that there was such problems with the court website. This court cannot accept everybody to be the spokesperson of what is going on in court. In particular, for court business in the High court depending on the issue is the Deputy Registrar, Judge in charge or any officer within the court directed to do so. The issue of court website problems or any of the kind is clearly responded by Rule 20 of the Judicature and Application of Laws (Electronic Filing) Rules, 2018. The Rule provides that; "(0 The Registrar or a magistrate in-charge may^ upon an oral application by a party, his advocate or his authorized representative, exempt a party from filing eiectronicaiiy of the whole or part ofthe pleadings or documents where: Page 11 of 14 (a) electronic filing is, for reasons to be explained in the application, notfeasible; \ (b)there are concerns about confidentiality and protection of privacy; (c) the document cannot be scanned or fiied electronicaiiy because ofits size, shape or condition; (d) the electronic filing system is either inaccessible or nota valiable; or (e) where for any other reason it is deemed sufficient to warrant the exemption. (2) Where the Registrar or magistrate in-charge is satisfied that there was good cause for exemption, he shaii grant the request under sub-ruie(1)in writing. This court was expecting to get some evidence from the Deputy Registrar in this case that the applicant really encountered such problem and that reasons has to be recorded for court use. However, there is none. As to the issue of rejection of document for lack of electronic signature, this court is not aware as to when the same occurred as it is not stated in the affidavit. Page 12 of 14 Further, this reason falls within the negligence category of the applicant acting in contravention of four corners of the requirement of the law, which in law is not an excuse. In the event therefore, this court has only failed to gather sufficient cause for delay. The applicant has legally failed to discharge his duty of adducing good cause and accounting for each day of delay as stated in the afore stated principles of law. Undeniably, this court has nowhere to rely upon and grant what is asked for, as such, this application suffers dismissal for being devoid of merits. Owing the circumstances there shall be no order as to costs. IT IS SO ORDERED. DATED at MOROGORO this 13^^ October, 2023 o 7" G. P. MA A 3UDG 13/10/2023 Page 13 of 14 Court: Ruling delivered at Morogoro in Chambers this 13'^'^ October, 2023 in the absence of both parties. A. W. IMWBANDG DEPUTY REGISTRAR 13/10/2023 Court: Right to appeal to the Court of Appeal explained. w A. W. I^MBANDO k DEPUTY REGISTRAR 13/10/2023 Page 14 of 14