yara tanzania ltd vs db shapriya co ltd 2022 tzhccomd 341 28 october 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL REFERENCE NO. 08 OF 2022 (Arising from Taxation Cause No. 111 of 2018) BETWEEN YARA TANZANIA LTD………………….…………...........APPLICANT AND D.B SHAPRIYA & COMPANY LTD…………………… RESPONDENT RULING Last order: 21 September, 2022 Date of Ruling: 28th October, 2022 NANGELA, J. In this application, the Applicant, YARA TANZANIA LIMITED, a limited liability company incorporated under the laws of Tanzania, is moving this court to set aside the Ruling and order of Hon. Minde, DR, in Taxation Cause No. 111 of 2018. The Applicant’s application to that effect was filed under Order 7 (1) & (2) of the Advocates Remuneration Order, of 2015 and, [G.N No. 264 of 2015] and section 95 of the Civil Procedure Code [Cap 33 R.E 2019] by way of a chamber summons supported by an affidavit sworn by Mr. Nuhu Mkumbukwa, Advocate for the Applicant. In the chamber summons, the Applicant prays for the following orders: Page 1 of 17 1. That, this Honourable Court be pleased to issue an order reversing and set aside the ruling and Order of taxation officer (Hon. Minde, DR) dated on the 7th day of June 2022 in Taxation Cause No. 111 of 2018, and appropriately, fairly and legally tax the bill of costs presented by the applicant. 2. Costs of this Application be provided for. 3. Any other reliefs that this Honourable Court deems just and equitable to grant. The Respondent contested the application by way of counter affidavit and raised several preliminary points of law to wit, that: 1. The application is bad in law for failure to attach the Ruling and Order in Taxation Cause No.111 of 2018. 2. The application is bad in law and incurably defective for being Page 2 of 17 supported by a defective affidavit; and 3. The application is misconceived and bad in law for containing untenable prayers as the Applicant never presented any Bill of Costs. Before going further to the nitty-gritty of the above preliminary legal issues, I find it apposite to narrate its brief facts. On the 30th August 2018, this Court dismissed with costs, Misc. Commercial Application No.92 of 2016 which sought to obtain a stay of proceedings of Commercial Case No.37 of 2018 between the same parties. Following the said dismissal which awarded costs to the Respondent, the Respondent filed in this Court Taxation Cause No.111 of 2018, wherein the Respondent claimed USD 5000 as instruction fees and TZS 260,000 as disbursements. As regards the outcomes of Commercial Case No.37 of 2018, following the striking out of the Misc. Commercial Application No.92 of 2016, the Respondent obtained a default judgement. Several other revision proceedings ensued in the Court of Appeal which are not part of the matters before me. Page 3 of 17 However, subsequent to the issuance of default judgement, the Respondent filed Taxation Cause No.110 of 2018 claiming for USD 119,000 being instruction fees. On 03rd June 2022, the said Taxation Cause No.110 of 2022 was heard inter-partes and on 07th June 2022, a ruling was issued. A total of USD 79,664 was granted as instruction fees and TZS 200,000/- as transport fees. A total of TZS 10,230,000 was granted as filing fees. The ruling of the Taxing Officer was attached to the supporting affidavit. However, the Ruling and Order in Taxation Cause No.111 of 2018 was not attached and, hence, the first objection to this application. On the 10th of August 2022, the parties appeared before me and I directed that, the preliminary legal issues be disposed of by way of written submissions. The parties duly complied and, hence, this ruling. In his affidavit supporting this application, however, Mr. Nuhu Mkumbukwa, the learned advocate who has all along assisted the Applicant has been making reference to Taxation Cause No.110 of 2018 stating that, the discretionary powers of the taxing officer in determining it, its determination was Page 4 of 17 done in disregard of the principles governing taxation of bill of cost and, that, an injustice was occasioned. In his submission, Mr. Nobert Tarimo, learned Advocate who appeared for the Respondent submitted that, since this Application is premised under Order 7(1) and (2) of the Advocates Remuneration Order, of 2015 and, [G.N No. 264 of 2015] which demands that an application as the one at hand has to be instituted by way of chamber summons supported by an affidavit, one would expect that, documents accompanying the chamber application to be the ruling and order sought to be challenged by way of reference application. To support his contention, reliance was placed on the case of Jubilee Insurance Company Limited vs. Africarriers Company Limited and Another, Misc. Civil Appl.No.395 of 2020 (unreported). He contended that; this Court cannot be moved to act on the decision it has not seen. He contended that, while the chamber summons refers to the ruling in Taxation Cause No.111 of 2018, the Applicant has, instead, attached the ruling of Taxation Cause No.110 of 2018, hence, the application is incompetent, he argued. Page 5 of 17 As regard the 2nd ground, Mr. Tarimo was of the view that, an affidavit being sworn evidence, must only contain statements of facts, which are the deponent’s own or information he believes to be true and no other extraneous matters, arguments or conclusions. To back up that view, Mr. Tarimo referred to this Court the case of Uganda vs. Commissioner for Prison, Ex-parte Matovu [1966] EA 514. He contended that, the affidavit filed in support of the application contains extraneous matters, legal arguments and conclusions contrary to Order IX Rule 3 (1) of the Civil Procedure Code, Cap.33 R.E 2019. In particular, reference was made to paragraphs 5, 6, 7, 8, 9, 10, 11 and 12 which were said to be containing such extraneous matters concerning Commercial case No.37 of 2016 and Taxation Cause No.110 of 2018 not subject of the present application and do not tally with the prayers in the Chamber Summons. He contended further that, paragraph 9 of the Affidavit in support, contains legal arguments as it attracts a question as to whether or not the discretionary powers of the Taxing Officer were exercised judiciously or not. He also contended Page 6 of 17 that, the same paragraph contains conclusions as it states that, the principles of taxation were not adhered to and, that, injustice was occasioned. He contended further that, paragraph 11 and 12 contain legal arguments as they attract considerations regarding whether the suit was complex or not and whether or not the guiding principles were taken onboard by the taxing officer. Besides, it was Mr. Tarimo’s submission that, even paragraph 14 contains prayers and all such paragraphs are offensive and should be expunged. To support his submission on those points, he relied on the decision of this Court in the case of Luisian Amsi vs. George John Nawet (Administrator of the Estate of the Late John Nawet), Misc. Land Appl.No.44 of 2021 and that of Phantom Modern Transport (1985) Limited vs. D.T. Dobie (T) Limited, Civil Reference No. 15 of 2001 and 3 of 2002 (CAT) (unreported). His final lap of submission was in regard to the point that, the current application is misconceived and bad in law for containing untanable prayers as the Applicant has never presented any Bill of Costs. He submitted that; this Court has Page 7 of 17 not been properly moved since the Applicant has never presented a bill of costs given that, the Court never awarded costs. Consequently, and, relying on the decision of the Court of Appeal in the case of Denis T. Mkasa vs. Farida Hamza (as the Admnitratix of the Estate of the Late Hamza Adam) and Another, Civil Appl.No.46/08 of 2018 (CAT) (unreported), he urged this Court to strike out the entire application, and with costs. The Applicant’s learned counsel, Mr. Nuhu Mkumbukwa, filed a reply submission in opposition to the preliminary legal issues. In his submission Mr. Mkumbukwa contended that, the Applicant herein has filed two Commercial References in this Court, the first being Commercial Reference No.7 of 2022 and the second being the one at hand, i.e., Commercial Reference No.8 of 2022. He submitted that, the first application is pending before Hon. Maruma, J., and both were filed electronically. Mr. Mkumbukwa submitted that, the purported preliminary legal issues should be overruled as they aim at entertaining technicalities and defeat justice. He relied on Article 107A(2)(e) of the Constitution of the United Republic Page 8 of 17 of Tanzania, 1977 (as amended). He contended, as regards the first ground, that, the ruling in Taxation Cause No. 111 of 2018 sought to be challenged in the application was attached as annexure YARA-3 with other annexures and, for that matter, the submission by the Respondent’s counsel is misconceived, he argued. In his further contention, it was Mr. Mkumbukwa’s submission, in alternative that there was a “mix up” of pages in the two reference that is, Commercial Reference No.8 of 2022 and No.7 of 2022 which were physically filed in this Court on 28th June 2022, and, that, the said “mix up” occurred during pinning of the hard copies as the affidavit of the present application was pinned in Commercial Reference No. 7 of 2022.He contended, therefore, that, the objections were unmerited. He insisted that, in any case, the complete scanned pleadings and its annexures of the reference was filed electronically in this court through JSDS2 which are in the Court’s custody, and, the Respondent has not been prejudiced. He urged this Court to ask for the electronic filed document to be assessed and reprinted and be served to the Page 9 of 17 Respondent under Rule 19 of the Judicature and Application of Laws (Electronic Filing) Rule, 2018. Moreover, he invited this Court to use the overriding principle, vide Rule 4 of the High Court (Commercial Division) Procedure Rules, 2019. The provision emphasizes the court to give effect to the overriding objective as provided for under section 3A and 3B of the Civil Procedure Code, as to facilitate just, expeditious, proportionate and affordable resolution of all matter. To further strengthen his submission, he cited to this Court the case of Yakobo Magoiga Gichere vs. Penninah Yusuph, Civil Appeal No. 55 of 2017, noting as well that, the Applicant is fully aware of the exception to the Oxygen Principle which is to the effect that, the principle should not to be applied blindly especially when there is an issue of compliance with mandatory procedure, as it was stated in the case of Mondorosi Village Council & 4others vs. Tanzania Breweries Limited & others, Civil Appeal No. 66 of 2017. Mr. Mkumbukwa distinguished the case of Jubilee Insurance Company Limited (supra) noting that, the said Page 10 of 17 case dealt with an application for a stay of a suit, which fact is different from the present application. He, thus, urged this Court to overrule the first objection. As regards the 2nd ground of objection, Mr. Mkumbukwa submitted that the same is misconceived because, the paragraphs of the affidavit said to be containing extraneous facts, i.e., paragraphs 5, 6, 7, 8, 9, 10, 11 and 12, touch on facts relating to Taxation Cause No. 110 of 2018 and Commercial Case No. 37 of 2016. He contended that, there was no paragraph 12 and 14 as alleged by the respondent and the subject of the application was due to the misplacement or mixing up of pages during the pinning of two affidavits in Commercial Reference No. 7 of 2022 before Hon. Maruma, J, but the one filed electronically was properly arranged. Although Mr. Mkumbukwa conceded that there was a missing or mixing up of the whole matter before this Court, he however, submitted that, the mixing up of pages of the affidavits between the two identical reference applications was due to human error and was curable under the overriding object principle. Page 11 of 17 As regards the Respondent’s assault on paragraphs 9, 11, 12 and 14 that they have contravened Order IX Rule 3 (1) of the Civil Procedure Code, Cap.33 R.E 2019, Mr. Mkumbukwa submitted that, the said Order was irrelevant as it was cited out of context. In his view, paragraph 9 did not contain any legal argument or conclusion but, rather, the opinion of the deponent who is the advocate who had the conduct of the case. Furthermore, Mr. Mkumbukwa distinguished a case of Lusian Amsi vs. John Nawet (supra) and that of Phantom Modern Transport vs D.T Dobie (supra). He contended that; the circumstances of theses cases were different to those in this application which only got mixed up with the other application. He, thus, urged this Court to rely on the overriding objective principle. As regards the last point, it was Mr. Mkumbukwa’s submission that, the prayer in the chamber application was clear since it was well known that D.B Shapriya & Co. Limited was the one who presented bill of costs and not the Applicant. He contended that; the Applicant who was being referred to there was the Applicant in taxation Cause No. 111 Page 12 of 17 of 2018. He urged this Court to find, therefore, that, the preliminary objections are devoid of merit and to overrule them and order electronically filed documents to be assessed In his brief rejoinder submission, Mr. Tarimo reiterate his submission in chief and prayers and added that, the notion of there being a mixing up of pages in Commercial Reference No. 7 of 2022 and No.8 of 2022, is untenable given, the two are different and, as well, emanated from different Taxation Cause, therefore that point was misplaced and misconceived as counsel for the Applicant seek to defeat the objections. Secondly, as regards the issue of overriding objective, it was Mr. Tarimo’s views, that, the stated principle is not a remedy for every noncompliance with the law and, the same should not be invoked. He contended that, although the requirement to attach a copy of ruling has not been provided for by the law, it is a Court practice adopted and endorsed by the Court and the Applicant was supposed to attach it. Finally, Mr. Tarimo distinguished the case of Ghania J. Kimambi vs Shadrack Ruben Ng’ambi, Misc. Appl.No.692 of 2018, (unreported) which was cited by the Applicant, on Page 13 of 17 that ground that, it dealt with restoration of an application which was dismissed for want of prosecution. He thereby urged this Court to sustain all preliminary objections and proceed to strike out this application with costs. From the above narrated submissions and taking into account the chamber summons, the affidavit in support and the annexures to it, the issue which I am confronted with is whether the preliminary objections raised by the Respondent have any merit. In the first place, it is worth noting that e- filing is fully recognized in our laws as one of the means through which documents can be, and, indeed, should be filed in Court as we move towards a culture of a paperless Court. In this case, Mr. Mkumbukwa contended that, there was a mix-up of things in the course of filing the hard copies in Court where the affidavit and annexures meant for Reference Application No.07 of 2022 were mixed up for those meant for Reference Application No.08 of 2022. He urged me to examine the e-records filed in this Court. I have done that, and, indeed, that is what happened and, to me, the proper documents to look at in the circumstance as what we have at Page 14 of 17 hand, are those which were filed electronically provided that they were filed timely. In the case of Alex Enock vs. Sariake Company Ltd (Paul Kidingi), PC Civil Appeal No.42 of 2021, it was stated that: “Since electronic filing is legally recognized as one of the means of filing documents in courts, then submitting the application on the 21st December 2020 via online system followed by the payment of fees on the 22nd December 2020 can undisputedly be considered as filing the application within time” Since I have confirmed that there was human error in the course of filing the hard copies, I find that, the premise upon which the first preliminary objection was anchored, can no longer stand the weight of such a fact and, therefore, the same will definitely have to crumble. In the same manner, the affidavit which supports the Reference Application No.111 of 2022 which was filed electronically is not the one filed manually in Court and Page 15 of 17 served upon the Respondent. That means that, even the rest of the objections will have to crumble as well. In the upshot, I find that the objections lack merit and should be dismissed. In view of that, this Court settles for the following orders: 1. That, the preliminary objections are devoid of merit and hereby overruled. 2. That, the Respondent be availed with the correct affidavit filed electronically in Court. 3. That, in the circumstance I will not make orders for costs but direct that, parties should proceed with the hearing of the Reference Application No.111 of 2022 on merits once the Respondent is served with a correct affidavit. It is so ordered. DATED AT DAR-ES-SALAAM ON THIS 28TH DAY OF OCTOBER 2022 Page 16 of 17 DEO JOHN NANGELA JUDGE Page 17 of 17