Tanzania Fish Processors Limited vs Eusto K. Ntagalinda (Mza. Civil Application No. 6 of 2013) [2017] TZCA 1105 (5 December 2017)

,, •. '1 ) 14,Y IN THE COURT OF APPEAL OF TANZANIA ATMWANZA · {CORAM: LUANDA, l.A., MMILLA, J.A., And MKUYE, J.A.) MZA. CIVIL APPLICATION NO. 6 OF 2013 TANZANIA FIS,H PROCESSORS LIMITED ............................... APPLICANT VERSUS EUSTO K. NTAGALINDA ••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT {Application for review of the Judgment of the Court of Appeal of Tanzania at Mwanza) {Mbarouk, Bwana and Mussa, lllA) Dated the 21 st day of March, 2013 in Civil Appeal No. 23 of 2012 .................. RULING OF THE COURT 4 th & 6 th December, 2017 MMILLA, J. A.: This was an application for review. It was filed by Mr. Constantine Mutalemwa,. learned advocate, on behalf of the applicant, Tanzania Fish Processors Limited. It was brought by way of notice of motion, and was . pivoted under Rules 48 (1), 66 (1), (a), (b), and (c) of the Tanzania Court of Appeal Rules, 2009. The affidavit in support of that application was 1

sworn by Mr'. Mut'alemwa, who was duly authorized to do so by the applicant. The notice of motion raised two grounds; one that the applicant was not afforded opportunity to be heard when the Court opined that the trial judge improperly invoked the provisions of Order XII Rule 1 (1) of the Civil Procedure Code Cap. 33 of the Revised Edition, 2002 in admitting exhibits P2 to P8; anei:I two that, there were manifest errors on the face of the record resulting in miscarriage of justice to the applicant, for which he cited nine such errors - ((i) to (ix) as reflected in the notice of motion). The application is contested by the respondent, Eusto K. Ntagalinda, . who enjoyes the services of Mr. Mathias Rweyemamu, learned advocate. Apart from filing an affidavit in reply, he also filed a notice of preliminary objection premised on a lone ground that the application was incompetent I I because the affidavit in support thereof was fatally defective for being wrongly attested as it lacked the name of the attesting officer in the jurat of attestation. 2

At the commencement of hearing, Mr. Mutalemwa rose and informed the Court that after considering the recent decision of the Court in the case of the Fair Competition Commission v. Tanzania Breweries Limited I I and two others, Civil Application No. 14 of 2013, CAT (unreported), which re-stated the Court's stand (prior to the amendment of the law on the point) that it was necessary for the Commissioner of Oaths to indicate his name in the jurat of attestation, he was conceding to the preliminary objection raised. He however, requested the Court spare his client from being condemned to costs. On the other hand, while accepting his colleague's concession, Mr. Rweyemamu pressed for costs. He contended that he conducted intense research in that regard, and that his client incurred expenses for his travel to Mwanza and accommodation, a hassle which could have been saved had his learned friend informed him of his intention to concede to the preliminary objection beforehand. I I Mr. Mutalemwa insisted that because he has been submissive to the Court, as aforesaid, his client deserves lenience. 3

Given the nature of the competing arguments on the point, the burning issue is whether or not in the circumstances, the applicant may be spared from paying the costs. It is a cardinal principle of law that in any suit between the parties in a court of law, the costs normally follow the result, unless found otherwise for reasons to be recorded. Of course, awarding costs is discretional, but such discretion must be judicially exercised. That means there must be cogent reasons for denying the winning party the costs which he/she otherwise deserves. In our present matter, there is no doubt that Mr. Mutalemwa has I I been submissive and has saved the Court's valuable time; we commend him for that. However, apart from the fact that the respondent's advocate conducted some research, filed an affidavit in reply, a notice of preliminary objection, and written submissions; still Mr. Mutalemwa did not inform him beforehand that he was conceding to the preliminary objection. Had he done so, we believe, that could have afforded Mr. Rweyemamu chance to 4

exercise options on whether or not to travel to Mwanza from Bukoba as he put it, or to just instruct his client to attend court. That could have the effect of vouching expenses. That chance was denied. In the circumstances, in terms of Rule 114 (1) the Rules, we award the respondent half of the cost, which we direct to be subject to taxation. DATED at MWANZA this 5 th day of December, 2017. B. M. LUANDA JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL R. K.MKUYE JUSTICE OF APPEAL I certify that this is a true copy of the original. ISTRAR TOFAPPEAL 5