Misc

IN THE HIGH COURT OF TANZANIA LAND DIVISION DAR ES SALAAM MISC. LAND APPLICATION NO 25331 OF 2024 DAVID MASAKA HIZA..................... 1st APPLICANT VERONICA CLARA HIZA........................................ 2nd APPLICANT VERSUS NCBA BANK (TANZANIA) LIMITED................... 1st RESPONDENT NUTMEG AUCTIONEER & PROPERTY MANAGER LTD................................. 2nd RESPONDENT RULING Date of last Order: 18/10/2024 Date of Ruling: 18/10/2024 LALTAIKA, J. This Ruling is in response to the Applicant's prayer to withdraw the application without costs, as submitted by Ms. Demetria Daniel, learned Counsel for the Applicant. Counsel submitted that the Applicant no longer wishes to proceed with the application. She prayed to withdraw it pursuant to Order XXIII Rule 1 and Rule 2 paragraphs (a) and (b) of the Civil Procedure Code, R.E. 2019. Page 1 of 4 The basis for her request for withdrawal without costs is that the application is being withdrawn at an early stage, implying that the Respondents have not incurred substantial expenses. Conversely, Mr. Kelvin Kidifu, learned Counsel for the 1st Respondent, has objected to this prayer. He argues that the 1st Respondent had filed a preliminary objection (PO) challenging the merits of the application, for which the Applicant had been duly served. He contends that allowing the withdrawal without hearing the PO would amount to pre-empting it. According to Mr. Kidifu, the appropriate course of action would be for the Applicant to concede to the PO, leading to the application being struck out, at which point the Respondent would seek costs. Mr. Kidifu added that the 1st Respondent had incurred expenses related to engaging counsel, filing a counter affidavit, and preparing for an auction that was stayed by an order of this Court on 10th October 2024. In rejoinder, Ms. Daniel argued that the arguments by his learned brother in the bar lacked merit and emphasized that, since the Applicant is no longer interested in pursuing the matter, the application cannot proceed. She asserted that there is no Ruling by this Court that supports Page 2 of 4 the 1st Respondent's speculative argument regarding the likely outcome of the PO. The issue before this Court is twofold: first, whether the application should be withdrawn without costs; and second, whether the existence of the preliminary objection filed by the 1st Respondent necessitates a hearing prior to withdrawal. The law provides that an Applicant or Plaintiff is at liberty to withdraw their application at any stage of the proceedings. However, where a preliminary objection has been raised and duly served, a balance must be struck between the Applicant's right to withdraw and the Respondent's interest, especially when expenses have been incurred in response to the application. Having carefully considered both submissions, I choose to be pragmatic. I do not see any value in detaining Counsel to start addressing me on issues that are of mere academic value as the Applicant who is the aggrieved party has indicated lack of interest. Moreover, I am guided by the overriding objective principle, which aims to facilitate the just, expeditious, and affordable resolution of disputes. In this context, I am of the view that the Applicant's right to withdraw the application takes Page 3 of 4 precedence, particularly since the matter is at an early stage and prior to any substantive determination. Regarding costs, which remain at the discretion of this Court, I am not inclined to grant an order for costs. The 1st Respondent, as a financial institution, routinely deals with applications of this nature during its daily operations. There is insufficient evidence before this Court to suggest that significant or extraordinary costs were incurred, given the early withdrawal of the application. In the upshot, the application is hereby marked withdrawn without an order as to costs. It is so ordered. COURT: Ruling delivered in Chambers this 18th day of October 2024 in the presence of Ms. Demetria Daniel and Mr. Kelvin Kidifu learned Counsel for the Applicant and 1st Respondent respectively. Page 4 of 4