20141121 TZHC Dar es Salaam

" r' ·.:j; IN THE HIGH COURT OF TANZANIA AT DARESALAAM MISC. LAND APPLICATION NO. 68 OF 1994 (Originating from Land Case No. 24 of2012) 1. CATHERINE ADOLF KIRSCHSTEIN ............. .1 ST APPLICANT · . ND 2. ACASTE CORPORATION LIMITED ................ 2 APPLICANT . RD 3. REVEREND CHRISTOPHER MTIKILA .......... .3 APPLICANT Versus; 1. MARY FLORENT STEVEN MTETEMELA ... 8T RESPONDENT · . ND 2. H. H. HILLAL AND COMPANY LTD ........... 2 RESPONDENT 3·. ANYAKWE MOSES MTETEMELA ............. 3RD RESPONDENT RULING 10/10 & 21/11/2014. Utamwa, J. In this application, the three applicants, CATHERINE ADOLF KIRSCHSTEIN, ACASTE CORPORATION LIMITED . and REVEREND CHRISTOPHER MTIKILA ·(ls\ 2nd and 3rd applicant respectively) are applying for some orders against the three respondents, MARY FLORENT, STEVEN MTETEMELA, H. H. HILLAL AND COMP ANY LIMITED and ANYAKWE MOSES MTETEMELA (1st, 2nd · and 3rd respondent respectively). The orders sought are the following; 1. That this Honourable Court may be pleased to summon the respondents to show cause why they should not be committed to prison for disobeying the exparte interim order of maintenance of Page 1 of 6 status quo until final determination of the matter, which was made nd on the 2 March, 2012 and interfering with the administratio~ of justice. 2. Exparte; that the Honourable court n1ay be pleased to order that· the sale of the suit premises which is on plot No. 57 Mikocheni Light Industrial Area in breach of the High Cou1i t order of status .. quo is null and void. 3. Costs of this application be provided for. 4. Any other relief as this Honourable Cou1i play deem fit and jus~ to grant. st rd 1: The application is supported by affidavits sworn by the 1 and 3 . _ applicants. The respondents were accordingly served with the chamber application. On the 10th day of October, 2014 when the application came st nd before me, Mr. Mtaki ,learned counsel appeared for the 1 and 2 applicants while the 3rd applicant was present in person. On the other nd hand, Mr. Nyangusu learned counsel appeared for the 2 respondent and st rd held briefs for Mr. Wyange learned counsel for the 1 and _3 . . respondents. On that date Mr. Mtaki learned counsel prayed to withdraw the application with the leave to re-file it on the grounds that the documents moving the court were prepared by his clients and it was difficult for him to rely upon them as he had just been engaged to take rd the conduct of the matter. The 3 applicant declared _that he had/no objection to the prayer made by Mr. Mtald. On his paii, Mr. Nyangusu learned counsel did not object the prayer for withdrawing the application, but contested the leave to re-file it. The ground for the.objection was that, this is not a matter that is time barted, which in law would attract a prayer for withdrawal and re-filing. The learned counsel also prayed for costs because the respondents had taken trouble in engaging advocates for defending the application. Page 2 of 6 ·.In rejoinder, Mr. Mtaki reiterated his prayer arguing that time is of es~.ence in this matter and the applicant would need only 14 days to re- fil~ the application as properties of a deceased ' , person were in bad conditions. He also argued that costs in this matter should ·be in the course. He however, left it to the court to decide on the issue of the leave rd to're-file the application. The 3 applicant al~o left it for the court to decide on the issue of the leave to re-file the application . ' .·.From . the submissions by the parties, the prayer for withdrawing the ' . .,: application is not contested. I accordingly grant that prayer for ,.., withdrawing the application because, it was the applicants who filed the same and they are at liberty to withdraw it. The same is accordingly marked withdrawn as prayed. The main contr~versies between the parties are based of the prayed leave to re-file the application and costs for its withdrawal. The following two issues must thus be determined here; · 1. Whether or not under the circumstances of this matter the court may grant leave to re-file the application upon withdrawing it. · 2. Wpether or not the applicants are liable to pay costs for the withdrawal of the application. " Regarding the first issue, I am· of.the view that in their arguments, the applicants did not cite any law under which their prayer for leave to re- fil¢ the application. was based. Of course, the learned counsel for the respondent did not also cite the law supporting ·his argument that the leave to re-file a ·matter applies on only in time barred matters. I will thus decide this issue without any assistance from the parties. The argument by the learned counsel for the respondents. is difficult to approve. I know no law that restricts the leave to re-file withdrawn matters to time barred matters only. I thus discard that part of the leari:ied _ . . ,. counsel submissions. Page.3 of 6 As to the prayed leave to re-file the application I am of the view that, it was the duty of the applicants to cite the proper law under which their · prayer is based, but they· did not do so. In my view, the most relevant law to this prayer is Order XXIII rule 2 (a) and (b) of the Civil Procedure Code, 1966, Cap.· 33 R. E. 2002 which gives powers to the 1 • court to permit a plaintiff to withdraw his suit with the leave to re-file it. Of course, this same rule may be applied mutatis mutandis in /!' applications like the one under discussion. However, under that rule, _the court is not empowered to grant th~ leave to re-file as if it is a gift. Tliere 9 are some pre-conditions to be met before the leave is granted. The pre- conditions are that, the court must first be satisfied that the matter must fail by reason of some formal defects or there are other sufficient grounds for granting that leave to re-file. From that construction of the law, it is clear that it is the duty of the person who applies to withdraw a matter with leave to .re-file to satisfy the cou1i by giving sufficient grounds for the prayed leave to re-file. Th_e rationale for this principle of law is that, a person is not entitled to drug others 'to cou1i without due diligence, withdraw the matter from the cou1i and then freely re-fil_~ it. . .. . ' In my view, the legal principle was intended to protect other persons from the ordeal of court proceedings which involve costs, time and sometimes 1nental anguish. In the matter at hand, the applicants disclosed neither the defects in the current application nor any other sufficient ground that supports the prayer for the leave to re-file it. Instead they left it.to the court to decide whether or not to grant the leave. For this 01nission, I· find that they ·did not discharge their obligation in seeking the leave to re-file ·the application. I therefore, answer the first issue negatively to the effect that under the circumstances of this matter this court cannot grant the prayed leave to re-file the application. Page 4 of 6 ' · As to the second issue, the law of this land on costs js settled. _The general rule is clear that costs follow the event and where the court directs otherwise, it must state its reasons in writing, see s. 30 of the , Ci:vil Procedure Coide, Cap. 33 R. E. 2002 and the Court of Appeal of Tanzania decision in the case of Njoro Furniture Mart Ltd v. Tanzania Electric Supply Co Ltd [1995] TLR 205. This precedent, being the decision of highest court of the land, is binding to this court under the common law doctrine of Stare Decisis which applies in our jurisdiction too. In the case under discussion I see no any reason justifying my departure from that general rule. The prayer by the applicants that costs should be in the course cannot also be granted for d the following grounds; that in law costs are determined when the matter at issue is being determined. In the matter at hand thus, costs must be determined in this same forum as the application is being determined thr_ough the prayed withdrawal. ··Again, I have just decided herein above that I cannot, under the circumstances of this case grant the leave to re- file the application. ·Having observed as above, I order that the prayer for withdrawing the application is granted and the same is hereby marked withdrawn. The leave to re-file it is however, not granted. The applicants may instead, re~ort to any other legal remedy (if any) in getting the reliefs they had :: sought in this application. Th~ applicants shall pay costs for the· •'' ' withdrawal as the respondents engaged advocates to defend the application though they had not filed any counter affidavit when the prayer for withdrawal was lodged. However, as usual the costs must be taxed first. It is accordingly ordered. IBK.UTAMWA JUDGE ',· 21/11/2014, r Page 5 of 6 21/11/2014 CORAM; Hon. Utamwa, J. .For E.irst.Appl_icants; Mr. Nyangusu advocate for Mr. Mtaki advocate. For second Applicant; Mr. Nyakamo advocate for Mr. Mtaki advocate. For third applicant; present' in person. For first Respondent; Mr. Nyangusu advocate for Mr. Nyange advocate. For second Respondent; Mr. Nyangusu advocate For third Respondent; Mr. Nyangusu advocate for Mr. Nyange advocate. BC; Mrs. Kaminda. Court; Ruling delivered in the presence of Mr. Nyangusu advocate for the second . . respondent, also holding briefs for Mr. Mtaki advocate for the first and second applicants and for Mr. Nyange advocate for first and third respondent, also in the st presence of the third respondent (Rev. Mtikila) in chambers, this 21 day' of November, 2014. JHK.UTAMWA JUDGE 21/11/2014 Page 6 of 6