20160422 TZHC Dar es Salaam

I IN THE HIGH COURT Of TANZANIA (Dar es Salaam District Registry) - ~ - AT -DAR ES SALAAM_ CIVIL REFERENCE NO. 4 OF 2015 TREDCO (Tz) LIMITED ....................................................... APPLICANT Versus HEIKO GRUND.i;:a a;.am ••• •• •••• ••••• 1 1 • • • • • • c i i , c 10:• ■ •1t 11•11 ••••u ■ •1;;• ■ s.a ■ ■ ll ■ G 11 Sill' Ii::• t ■ •m:RESPONDENT 02/02 &22/04/2016 RULING MWANDAMBO, J. The Applicant seeks an order for quashing and setting aside a decision of the Taxing Officer dated 18th February 2015 in the District Court of Klnondoni at Kinondoni in civil case No. 71 of 2013 out of time. As required by Rule 5(1) and (2) of the Advocates' (Remuneration and Taxation of Costs) Rules, GN No:515 of 1991 (the Rules), an aggrieved party from a decision of a Taxing Officer has a right to challenge that decision before a judge by way of reference instituted by filing a chamber summons supported by affidavit within twenty one (21) days after the issue of a certified copy of the decision sought to be challenged. The application before me is by way of reference under Rule 5 (1) (2) of the Rules. Since the Applicant believes that it. delayed in challenging the decision of the Taxing officer the subject of the reference, the Court is 1 j' ,' I asked to exercise its power under Rule 6 (1) (2) of the Rules and consider the reference out of time. ~------. ~--U.pon___being served_ with _a_ cop_y____9f chg_tJlQ~r-~umrnons the -~---- Respondent who is r~present~d by J 9mes L. Ndyetabula and Michael Luguru learned Advocates filed a notice of preliminary objections simultaneous with a counter affidavit in opposition. The notice of preliminary objections contains five grounds namely; 1. The application is hopelessly incompetent for being time barred. 2. The application was filed out of time without leave·-of the Court. 3. The application is incompetent and misleading by stating that it arose from Civil Case No. 71 of 2013 which is a wrong number of the case 4. The application is misconceived and incompetent for being preferred under wrong enabling provisions of the law. 5. The application is misconceived and incompetent for preferring reference instead of an appeal. At the hearing, Mr. Ndyetabula learned Advocate who, as indicated earlier appeared together with Mr. Luguru learned advocate abandoned ground three and five in the notice and argued the rest in the same sequence. The [earned Advocates for the Respondent argued in support of ground one that since the ruling of the Taxing Officer sought to be challenged on reference was delivered on 18th February 2015, an application for reference ought to have been made twenty one days after the signing of it on 20 th February 2015. According to the learned 2 Advocates, time for lodging a reference must be reckoned from the date u. certification and signing of the ruling sought to be challenged rather than the date the Applicant obtained such a copy. The learned Advocates submitted that the filing of the application on 30 June 2015 was well beyond 21 days contrary to Rule 5 (1) of the Rules and the same ought to be dismissed. To buttress their submission, the _learned Advocates referred the Court to a decision of this Court in Mathew Martin V. The Managing Director Kahama Mining Corporation£ Civil case No. 79 of 2006 (unreported) on the arbitrariness of the law on limitation. In ground two, the learned Advocates' argument is that the Applicant ought to have filed an application under Rule 6(2) of the Rules to seek extension of time rather than lodging a reference straight away following expiry of twenty one days. The learned Advocates submitted that since there was no application for extension of time to challenge the Taxing Officer's decision, the current application is incompetent. Submitting on ground four, the learned Advocates contended that the application was incompetent for being filed under wrong provisions of the law. If I understood them well, the learned Advocates seemed to suggest that the Applicant ought to have filed a separate application for extension of time under Rule 6(1), (2) of the Rules rather than citing it in an application for challenging the Taxing Officer's decision. The learned Advocates wound up their submission by inviting the court to dismiss the application for being time barred or strike it out for being incompetent. 3 Mr. Cuthbert Tenga learned Advocate representing the Applicant resisted all preliminary objections in his brief submissions. The learned Advocate began his address with ground four in which he submitted that the Court was exercising jurisdiction as a court of reference under Rule 5 of the Rules which is cited in the chamber summons regardless of tenability of the prayers therein. The learned Advocate submitted thus that the question of wrong citation does not arise in the circumstances. Regarding grounds one and two the learned Advocate took the view that there is a clear distinction between the date of signing a ruling and issue of it to a party. Mr. Tenga submitted that Para 15 of the affidavit indicates that a certified copy of the decision of the Taxing Officer was issued to the Applicant on 11th June 2015 and nineteen days later, the Applicant filed the instant application and thus the objection on time bar has no basis. In the alternative, the learned Advocate submitted that since the Applicant has also cited Rule 6( 1) (2) of the Rules which vests power on the Court to extend time within which to lodge a reference, the Court should consider that application on the basis of the reasons given in the affidavit which are sufficient to grant the extension sought. Having examined the chamber summons, affidavits, the preliminary objections as well as the Counsel's submissions, it seems to me that the critical issue for determination is whether the time for filing a reference expired on the date the instant application was filed in court. Assuming the· period had indeed expired, was it justifiable for the Respondent's Counsel to raise a preliminary objection when the Applicant had expressly moved the Court to consider the reference out of time citing Rule 6(1) (2) of the 4 __Rule in the chamber summons? With respect the answer must be a -~----~--- negative one. I cannot for my part explain the impropriety better than echoing the words of Sir Charles Newbold, President of the defunct East African Court of Appeal in the oft quoted case in Mukisa Biscuits v. West End Products Ltd [1969] EA 696, at page 701 where the learned President expressed hls serious concern over the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objections. The learned president frowned upon the improper raising of points by way of preliminary objections which do nothing but unnecessarily increase costs and, on occasion, confuse the issues. There is hardly any dispute in this application that had Advocates for the Respondent directed their minds to the chamber summons in the light of the wisdom expressed in Mukisa Biscuit's case (supra) they would not have raised any of the objections in question. Speaking of the parties' and Advocates' role in the conduct of litigation, twenty three years later, Lord Templeman made somewhat similar observations in Ashmore V Corp of Lloyd's [1992] 2 All. ER 486 in the following words: 'The parties and particularly their legal advisers in any litigation are under a duty to co-operate with the court by chronological, brief and consistent pleadings which define the issues and leave the Judge to draw his own conclusions about the merits when he hears the case. It is the duty of counsel to assist the judge by simplification and concentration and not to advance a n1ultitude of ingenious arguments in the hope that out of ten bad points 5 ---------- - ------ - - - - - ---- - - - the judge will be capable of fashioning a winner. In nearly all cases the correct procedure works perfectly well. But tl1ere has been a tendency in some cases for legal advisers, -- -- -.. - - - - pressed by their clients, to make every point conceivable ani:l inconceivable without judgment or discrimination... ,,(emphasis - - added) I have no doubt in my mind that the above observations loudly explain the position in the instant application because the chamber summons makes it clear that the Applicant is seeking an indulgence of the Court to determine its application out of time and the affidavit in support gives reasons for the delay in lodging the reference. Yet, quite aware of the nature of the application and the reliefs sought, counsel saw it fit to front objections in the manner they did. Without mincing words, I find it odd for the Respondent to have raised an objection contending as he does that the application is time barred. As far as I am aware, I know no law and none was cited to me fixing time within which to apply for extension of time to challenge the Taxing Officer's decision and thus grounds one and two in the notice of preliminary objections are clearly misconceived. If I am wrong in holding as I have in relation to the objections, fs the application for lodging a reference time barred as contended? The answer to this question turns on the proper construction of Rule 5 of the Rules wh~ch provides: 6 "5-(1) where any party objects to the decision of the taxing office~ he may refer his objection for the decision of a judge of the High Court. (2) The objector shall proceed by _way of chamber application/ supported by an affidavit to be filed within 21 days after the issue of the certified copy of the officer's decision and to be served upon all other parties who are entitled to appear on such taxation." The word issue used in Rule 5(2) of the Rules is not a technical word rather it is used as an ordinary word. The word ls defined by Collins English Dictionary, Desktop edition to mean "The act of sending or giving out something, supply, delivery" ( at P 836) The Concise Oxford English Dictionary, 12th edition at page 754 defines the word issue to mean: usupply or distribute for use or sale" To be able to use a certified copy of the decision of the Taxing Officer, such copy must be supplied or made available to the intended user and I assume upon a formal request being made in terms of the provisions of Order XX Rule 20 of the Civil Procedure Code, Cap 33 R.E. 2002. At the risk of delving into the evidence, it has not been suggested that the Applicant did not make any formal request to be supplied with a certified copy of the said decision. Accordingly, in terms of the Rule, the time for 7 lodging an application for reference must be reckoned from the date the Applicant's counsel was supplied, provided or furnished with a certified copy of Taxing Officer's decision. Mr. Tenga has submitted and in fact he was not challenged that the lower Court supplied a copy of the decision sought to be challenged on reference on 11 th June 2015 and on 30th June 2015 this application was filed. By simple computation, that was a period of nineteen (19) days from the date of the issue of a certified copy of the decision which is conspicuously evident through exchequer receipt No. 5647127of _11 th June 2015. Indeed the Respondent's counter affidavit does not dispute that fact and that having so admitted that fact the Respondent could not validly contend as he does that the application is time barred by way of a preliminary objection. As I said earlier, in the absence of anything to the contrary, the time for filing an application for reference must be reckoned from 11th June 2015 and not 20 th February 2015 a date when the Taxing Officer is said to have signed his ruling as contended by Mr. Ndyetabula learned Advocate for the Respondent. Mr. Tenga is right on this aspect and I uphold his submission. Of course he too appears to have been laboring under an erroneous understanding that time for lodging the reference had already expired on the basis of which -he moved the court to determine it out of time but that is beside the point for my determination. I would thus disregard that reference and hold that the application for reference was filed within twenty one days prescribed by the law and thus grounds one and two in the notice of preliminary objections are in any event devoid of merit and are hereby overruled. 8 Having overruled grounds one and two of the objections, grounds four becomes an easy one to determine. The said ground was raised ·on· an erroneous understanding that time for lodging a reference had already expired which I have already held to the contrary. At any rate, there being a clear citation of the law empowering this Court to exercise its discretion to extend time under Rule 6 (1) of the Rules, I see no merit in the Respondent's objection which I hereby overrule. In the upshot, all objections are found to be misconceived and are hereby dismissed with costs. Order --d ordingly. Delivered in court in the presence of Hermann Lupogo Advocate for the Applicant and James Ndyetabula and Michael Luguru learned Advocates for Respondent this 22 nd day of AprH 2016. L.J. ~~GE 22/04/2016 9