Tozo v Mwashilanga ((PC) Civil Appeal No. 9 of 2000) [2000] TZHC 692 (26 October 2000)

276 TANZANIA LAW REPORTS [2002]T.L.R. NKAILE TOZO v. PHILLIMON MUSA MWASHILANGA HIGH COURT OF TANZANIA » ATMBEYA (Makanja, J.) c (PC) CIVIL APPEAL No. 9 OF 2000 (From the judgment and decree of the District Court of Mbozi District, in Civil Appeal Number 18 of 2000 originating from Vwawa Urban Primary Court, Civil Case Number 48 of 1998) D Civil Practice and Procedure - Costs - Court dismissed appeal but did not award costs - Whether award of costs to successful party after dismissal of a case is automatic - Factors considered in awarding costs. E The respondent unsuccessfully sued the applicant for the recovery of land before Vwawa Urban Primary Court. He went on to loose on appeal to Mbozi District Court. Upon dismissing the appeal the District Magistrate did not award costs to the appellant, who then appealed to the High Court against that order. F Held: (i) The granting of costs to the parties under Order 39, rule 1(1) of the Civil Procedure Code, is not an automatic award to the successful party but is in the discretion of the court; (ii) When a party successfully enforces a legal right and in no way misconducts himself, he is entitled to his costs. Appeal allowed Cases referred to: H 1) Njoro Furniture Mart Ltd v. TANESCO [1995] T.L.R. 202 2) Naramma v. Kotamma (1965) 1 and WR 433 3) Civil Service Company v. GSN Company [1903] 2 KB 756 C.A. 1 4) Dering v. Uris [1964] All ER 666

NKAILE TOZO v. PHILLIMON MUSA MWASHILANGA 277 5) Oltway v. Jones [1955] 2 All ER 5855 A 6) Jan Mohamed v. Twentsche [1967] EA 287 Statutory provisions referred to:

1. Civil Procedure Code, Order 39, rule 1 (1), sections 30, 30(2), 30(l)(2) R
2. Indian Code of Civil Procedure, section 35 Mr Mushokorwa, for the Appellant JUDGMENT C (Dated 26 October 2000) D Mackanja, J.: Philimon Mussa Mwashilanga unsuccessfully sued the respondents for recovery of a parcel of land before the Vwawa Urban Primary Court. He went on to lose an appeal he preferred before the District Court of Mbozi District at Vwawa. When dismissing the appeal the learned appellate District Magistrate made an order E for costs in the following words: ... Each party is to bear own costs. The respondent before the appellant District Court was aggrieved f by this order, hence this appeal. The petition of appeal contains only one ground, namely: that having dismissed the respondent ’ s appeal in its entirety, the learned District Magistrate erred to deny the appellant his costs or part thereof C and without assigning *ny reasons. Mr Mushokorwa, learned counsel for the appellant, has argued relying on section 30(2) of the Civil Procedure Code, that his client was entitled to his costs once the appeal was dismissed. He argued that d he has cited section 30(2) of the Civil Procedure Code because G.N. 311 of 1964: The Customary Law (Limitation of Proceedings) Rules 1963 do not make provision for costs to be awarded to a successful party. Obviously there, Rules have nothing to do with appeal originating *

278 TANZANIA LAW REPORTS [2002] T.L.R, A from Primary Courts. The correct Rules are the Civil Procedure (Appeals Originating in Primary Courts) Rules 1963, published as GN 312 of 1964 which, as the title shows, govern appeals from Primary Courts. As correctly pointed out by the learned counsel there is no B Rule in the said Rules which makes provision for awarding costs to a successful party in appeal to the High Court which originates from a Primary Court. In that case section 30(l)(2) of the Civil Procedure Code becomes of assistance. For ease of reference section 30(1) c and (2) of the Civil Procedure Code on which the learned counsel relies is reproduced herein below, namely that: (1) Subject to conditions and limitation as may be prescribed, and to provisions for any law for the time being in force, the costs and D incidental to all suits shall be in the discretion of the court, and the court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that E the court has no jurisdiction to try the suit shall be no bar to the exercise of such powers. (2) Where the court directs that any costs shall not follow the event the court shall state its reasons in writing. F Mr Mushokorwa has also cited the case of Njoro Furniture Mart Ltd v. Tanesco (1) in support of his argument. The respondent had very little to say, namely, that: G I cannot pay costs because the appellant is a trespasser. Whether or not the first appellant Court was entitled to deny the application his costs will largely depend on the construction of section 30(l)(2) of the Civil Procedure Code (the Code). Our section 30 H of the Code is in pari materia with section 35 of the Indian Code of Civil Procedure. The respective interpretations of these two identical provisions have now made it trite law that the awarding of costs is not automatic. In other words they are not awarded to the successful 1 party as a matter of course. Costs are entirely in the discretion of

NKAILE TOZO v. PHILLIMON MUSA MWASHILANGA 279 the court and they are awarded according to the facts and circumstances of each case. Although this discretion is a very wide one, like in all matters in which Courts have been invested with discretion, the discretion in awarding of denying a party his costs must be exercised judicially and not by caprice (See the Indian case of Naramma v. Kotamma (2)). Thus when a party successfully enforces a legal right and in no way misconducts himself he is entitled to his costs as of right: Civil Service and C v. GSN Company (3). The rule enunciated in the English case of Civil Service and C v. GSN Company (3) is the very basis upon which the principle that costs shall follow the event, which is another way of saying that costs shall follow the result, is based. It is, in fact, settled practice in England, in India and in East Africa that a successful party should receive his costs unless the unsuccessful party can show some ground, such as negligence, misconduct or that the suit is vexatious, that the court may exercise its discretion to refuse to award costs to the successful party. Such was the case in the English case of Dering v. Uris (4) where the plaintiff in a defamation action was denied costs after he recovered only one half penny as damages against the defendant. On the other hand, to make the defendant who succeeds in the sense that no relief is ordered against him pay costs of the plaintiff who fails to prove his claim and, therefore, no relief is obtained by him in his suit requires a strong and exceptional case: Oltway v. Jones (5) at page 588, per Evershed, M.R. in Jan Mohamed v. Twentsche (6) at page 289, the late Biron, J., emphasized the fact that costs shall follow the event when he said, citing MuIIa (12 ed) at page 150, that: The general rule is that costs shall follow the event unless the court, for good reason, otherwise orders. This means that the successful party is entitled to costs unless he is guilty of misconduct or there is some other good cause of or not awarding costs to him. The court may not only consider the conduct of the party in the actual litigation, but the matters which led up to the litigation.

280 TANZANIA LAW REPORTS [2002]T.L.R. I agree entirely with the position of the law as expounded herein above. As Mr Mushokorwa has correctly submitted, the learned appellate District Magistrate slipped into error when he denied the respondent his costs after he had dismissed the appeal and there having been no just cause for the order which is now being impugned. Upon the foregoing considerations the appeal is allowed with costs. Consequently, the order by which the appellant was denied costs before the subordinate Court is set aside. Judgment to be delivered by the District Registrar. OLMESHLKIKISAMBU v. CHRISTOPHER NAIN ’ GOLA COURT OF APPEAL OF TANZANIA . AT DARES SALAAM (Kisanga, Lubuva and Lugakingira, JJ. A.) CIVIL REVISION No. 1 OF 2000 (Application for Revision from the decision of the High Court of Tanzania at Arusha, Munuo, J., dated 3 May 1996, in (PC) Civil Appeal No. 63 of 1995) Court of Appeal - Jurisdiction - Suo motu revisional jurisdiction of the Court of Appeal — Whether the jurisdiction may be invoked where a party forfeits the right of appeal out of his own fault - Section 4(3) of the Appellate Jurisdiction Act 1979. Court of Appeal — Revisional jurisdiction - May be exercised where the appellate process has been blocked by judicial process - Whether the Court of Appeal Rules amount to a judicial block. The applicant ’ s appeal to the High Court was dismissed and his application to the Court of Appeal for extension of time to serve the respondent with a notice of appeal