Lawrence P. Milinga vs Tanzania Harbours Authority (Civil Case No. 83 of 1998) [2000] TZHC 194 (24 August 2000)

. -1.c} tN !eH!i1 Higt~ OOVRI1 OJ TANZANIA DAR ES SALAAM DISTRICT REGISTRY .LI g /2fr/e.'f. 11/c . . ~ !JLRAR ES SALAAlf CIVIL CASE NO 83 OF 1998 LAWHENC-~ P. MILINGA •••• "" o o .APPLICANI' VERf,US .TANZANIA HARBOURS ATJI'HORIT Y ••• RESPONDENI' RULING ---- MANE!'.TO J: --·~ The plaintiffs• counsel has written a letter to this court requiring : for a mention so that he could be allowed to amed his plaint. The case has already passed the process of mediat.on after the pleadings have been completed. The learned counsel for the, defendants submitted that if any amendment, the application should be made formally so that they could know what amendments are to be made 'rand make proper reply to it. ' Alternatively, the learned counsel for the plaintiff has requested to withdraw the plaint with leave to re-file it, but no order to costs should be made as per Order 23r.I(I) (2) of the Civil Procedure Code. As per the first prayer for amending the plaint after mediation, and for the recms ..,that the counsel for th ,plaintiff submitted that th~re was an ommission of one paragraph 11 8" to ,the plaint, I rule that he should make a formal application, in which case both parties· will

• ·have an opportunity to know what is to be amended, and if the eourt will agree to the amendment after mediation, then it will take into consideration order 8A rule 4 as amended by GN.422 of 1994 in regard to costs • .Secondly if the plaintiff wants to withdraw the plaint with liberty to re-file it under Ord23 r I ( I) (2) of the Civil Procedure . ' : Code, 1966., the court is empowered to allow a withdral of the plaint with liberty to institute a fresh sut in respect of the same subject matter of such suit. That power is contained in Order 23 r I (I) (2) (b) and by SUbrnle (3) the court has discretion to order for costs if the . withdraw is with the permission of the court and if it is not with the permission of the court, the award of costs is an automatic right to ., the defendant. • •• /2..,,, I

( 2 Tal<:ing ::.:-:o consideration that the case had passed the mediation that • process, which fa.iled a..-i-id it was after/period that the plaintiffs counsel noted the arr.mission of the said paragraph 1 8' of the plaint, it means that the defence counsel has already done work,· in preparing the written statements of defence and other subsequent doc1.unents 1 attended the mediation. That work done should not be left lillCompesated. However, it should be at the end of the suit if the plaintiff will really re-file a fresh suit. In conclusion, I order that the permission to withdraw the suit with liberty to re-file the same is granted and secondly that costs are awarded to the defendants for work already done in this suit but such costs shall be paid after the finalisation of the intended fresh suit to be filed. If no fresh suit,filed, the costs will be automaticaJJ.y be due to the defendants. Having said s.:O, the I plaintiff is at liberty to take one of the causes stated, that is to say, file formal chamber application for the/m'snclJnent of the plaint or withdraw the plaint with leave to re-file subject to what I have said above. /.\,.!·- ,_ . . ., __ . A. R. • 1\NEiffo ,J ·· "\ , \ 24/8/2000 i1£_.,g~: I pray to withdraw the suit and:re-file. ~: Permission is granted to the plaintiff to withdraw this suit with liberty to re-file a fresh suit iri the same subject matter. ~herefore this suit is marked withdrawn. i;.\ \ ~~. . (·,.: .. Ao Ro MA.t"l:ENTO,J ··1 24/8/2000 .• ''1,