Nkaile Tozo vs Philimon Musa Mwashilanga (PC Civil Appeal No. 9 of 2000) [2000] TZHC 371 (26 October 2000)

— IN 1HEI-iI&H C3 UR OF T.ANZn TA

• 9 OF 2000 . OTGLNkL1 MBQ.ZI DI 3TRI CT C OURT CIVIL AP?EA L No.18 OF 2000 2-ND VWAWA tiaAN PRILA COU1T CIVIL CA NO 148 .:p:.g.98)H ••. Lr;.. -ILE TQO . ... . , .. . . .APrELLNT VERSUS PHILIiION TUSA I . LCI , e aRESP0NDE1 1 T JUDGMENT S.. J - Philimoii Mua lI1Wsn113x13a unsuccessfully sued the resondents 0 1. q for rocovery a parci. of land before the Vwawa Urban Priarr Court. He went on to lose an appeal he pro.±'err4 before the, District Court of Mbozi District at Vwa When dismissing the appeal th ie.rned iat District . gis rate made an order f or costs in the foLowing words:— '... Each party is to bear own costs," ." The respondent be'±ore the appellate District. Court was agrrieved by this order, hence this apeal. The petition of appeal coiairs nly'öne'ground, nàmol,: ............... . "that having disassed the respoidé'tt' s àpea1 inJIt çmtirety,the learned District E-!aZjpU tKqte erred to deiiy the Appellancostao part, thereof and without assigning any reasons. 1fIr. Nushokorwa, learned counsel for the appellant, hs argued relying on section 30(2) of the CiviL Prcicedure'Codo, . .

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• 2 - that his client was entitled to his costs once the appeal was dismissed He argued that he has cited section 30(2) of the CPC because G.N. 31l 1of;l964 The Custoraary Law (Limitation of Proceedings) Rules, 1963:do not make provision for costs to be awarded to a sücessfu1party. Obviously these Rules have nothing to do with appeal originating from primary courts, The correct Rules 'aié the Civil Procedu'e .. (Appeals Originating in Primary Courts) Rules, 1963; Published as G.N. 312 of 1964 'which, as the title show's,' goëi aP 'eals from P'ivary Courts. As corroctly pointed out by learned counsel there is no Rule in the said Rules which rakes'pó'isibn for awarding costs to a successful party in appeal to the High Court which oxiginates f•rom aprmary court. In that case s. 30(l)(2)tfthe CC- becomes of assistance4 For ease of re'±erenc 6 o.(1.) and (2) of the CPC to which learned counsel relics is reproduced herein be low, namely ha t : - . . .. (1), Subject to conditions and limitation as may" be prescribed, and to'provision,. for àn'wf5' the time being in force, the costs and incidental to all suits shall be i thoisctetion of the co,urt.,..and the court shall have full .por to determine .... ...........y. whom or out of what property and to what

extent s'ch costs are to be paid, and to gi've all necésary direction. for the purposes aforebaid,. The fact that the court has no jurisdition to try the stüt shàll"be no bar to the xer•Qi'eI'of such pbWers. (2) Where the court directs that .ny Costs shall not follow.tbe event the, court shall state its reasons inwriting, Mr. MushokOrä has also'. 'cited the case., of Noro Furniture Iiant Lt. TASC0, 997 TI 202 in suppo,t of his arguniont. The respondent had very little to say, namely, that:-

1. • L:.cathidt pay costs because the appellant a.. rpaser. : n Thethe or riot the first appellate court wa enti.tled to aeny ithe ?1D11oa.t }u cost w.i11 Thrgeiy deenorie constr.ction of the Civil, procedure Code. Our section 30 bf theCàde is inparirnteria withection 35 of the Indian Code of Ciyil.Proopure. The repootive interpretations of these two iden%icalpDoViions..;.have..now made •it trite law that the awarding of osts i not automatics In otherwords they are i . .. not awarded to thQ uccosu1.party s. amatter.ofcourse, Costs are entire ly in th& dioetion of';the cou .:ai.;Je Y.: are awarded according to the acts na bIrcumstance of each case. Although .:'* '1 ; • • ;. this discretion is a ve x1 - % r wide one, like in all matters in which co.irts have heeninvesod ith discretion, the discretion in awart2lng or denying a 1prty his costs iiust be eercised judicially and no -b by caprice (See the Indiai case of Narartuna V. Kotibaa, 1965 1 And Thtis when a party suc sfully ënforóe a legaL ri,ht and in no way misconducts himself he is entitled, to his costs as of right: Civil Service &C.v,GSNCo., L19037 2 K 0 B. 756 CA, The rule enunciated in the:iglish case of Civil Sexvice & O.vGSN_Co.. (supra) is the very basis upon which the principle that costs shall follow the event, which another way of saying tII - costs shal11lovthe result, isbae' It is,r ii fct settled practice in England, in India and. inat ,Afric that a successful party.shou1d receive his costs unless the unsuccessful party can show some grbund, such as negligence, misconduct or that the suit is vexatious, that the oourt may exeriise its discretion td ie fuse to award costs to the successful party 0 Such was the case in the English case of DerinP v. Uris, Z1964 All . .

• 4 ) • E.. 660 where the plaiiit'f in a defariation action was denied costs after he recovered only one halfpenny as ömoges against the defedant. On the other hand, to nake the defendant who succeeds in the sense that no ro Lief is ordered against hrii par costs of the plaintiff who fails to: prove his claim and thereforq 4p relief is obtrinod by him in his siit requires a strong and exccpton1 case: Oltwa v. Jon, Z 195 5 ,7 2 All E.R. 585 at 588, per M, vorshed, In Janiohained v, Ttche L196]7 E.. 287, t p. 289 2 the late Biroti, J., emphasized the fact that costs snail follow the ovent when he said citing MULLA (12th Edition.) at pe. 15Q 9 that — "The geherai rLle is that costs shall follow the event unlessthe court,.. fr good rea'son, otherwise4 ordeTh. T.his n . e ans I that .the successful parby is . .. entitled to costs unless he is guilty: of ssonduct or there is some other good cause for not awarding costs to ........... him. ..Thp...ourt uay.not only consider the con4uct of the party in the actual litigation, but the matters which j to the litigation." . 1 agree entirely with theprosjtion of the law as expounded hcrein above • As Lii' • 1' us okorwa has corro ctly subiiu.ttea, he learned appellate District, slipped into error when he eiued therespondent his costs after he nd dismissed tie appeal and the re having been no just. cause for the orde' which is now being impugned. Upon the foregoing considerations the appeal is allowed with costs. Consequently, the order bywhich the appellant was denied costs before the subordinate court is set aside. Judgment to be delivered by the. District Registrar. J.M4 1,L4CANJA : JUDGE 1O.82OOO

A 5 - ,6/lpg9Qo Coraxn S.V.G. Karua, Ae, Di?. Appellant - Mr. Mushokorwa Resondent— :Preseflt in person Judgment delivered in chambers, this 26th day of October 2000, in t 1 ho presence of th.e 1iushokorwa, learned counsel for the appe liant, and the re sponden.t in person. sd S. T., Karua, Ag. DR 26.10.2000 Certified true copy of the original..Judgment.. DI STRI CT REGISTRAR JiBE YA