FATUMA OMARI

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA MISC. CIVIL APPLICATION NO. 20505 OF 2024 (Arising from the Order of this Court in Mise. Land Appeal No. 11770 of2024) FATUMA OMARI...................................................................APPLICANT VERSUS HUSSEIN MWAFU................................................................RESPONDENT RULING 1st October & 31st December, 2024 MUSOKWA, J, The applicant herein seeks for orders to set aside the dismissal order, and to restore Mise. Land Appeal No. 11770 of 2024 which was dismissed by this court for want of prosecution. The enabling provisions relied upon in the instant application are sections 93, 95 and Order IX Rule 3, Order XXXIX Rule 19 and Order XLIII Rule 2 of the Civil Procedure Code Cap. 33 R.E. 2019 (CPC). The application was instituted by way of chamber summons accompanied by the affidavit of the applicant affirmed on 12th August, 2024. i On 1st October 2024, the parties prayed for this application to be disposed by way of written submissions. Leave of this court was granted and parties complied with the scheduling orders. As the background information, the applicant submitted that the matter originated from the Ward Tribunal for Mtiko at Singida (trial tribunal). The applicant herein successfully instituted and prosecuted the case before the trial tribunal. Aggrieved by the decision thereof, the respondent preferred an appeal before the District Land and Housing Tribunal for Singida (DLHT). The DLHT quashed the decision of the trial tribunal for want of jurisdiction. The applicant herein determined to further seek legal recourse in pursuit of her rights, filed an appeal to this court, which was dismissed for want of prosecution on 12th July 2024, resulting in the instant application. However, upon reconsideration and based on the advice from her legal counsel, the applicant has realized that this application lacks merits and prayed for this court to dismiss it without costs. The relevant part of her submissions states as follows: - "After thorough and long determination and advice from the applicant's counsel, the applicant herein has come to the knowledge that this application at hand has no 2 merit and pray for this honourable court to dismiss this application with no cost, for the applicant to file the matter to the Ward Tribunal for proper procedures to be followed". [Emphasis added] In response thereto, the respondent who was represented by Herbert M. Lubyama advocate, did not resist the prayer of the applicant, but lamented on the inconvenience the respondent has been subjected to, as a result of the matter at hand. In that regard, the respondent pressed for the costs to be granted by this court. Since the applicant's prayer for dismissal was not contested by the respondent, the sole issue for determination is whether or not, this court should grant costs in favour of the respondent. Notably, the respondent when praying for costs submitted that: - "since the respondent hired and paid the advocate to represent him before this honourable court, to make sure that justice is seen to be done; we pray for costs to return the respondent at his original position. " [emphasis added] In the case of Jovin Mtagwaba & 85 Others vs Geita Gold Mining Limited, Civil Appeal No. 23 of 2014 (unreported), the Court of Appeal of Tanzania (CAT) held that "the rule of thumb is that costs follow the event". 3 In another CAT case of Godfery Nzowa vs Seleman Kova, Civil Appeal No. 3 of 2015, (unreported), it was held that: - "We should, perhaps, reiterate that it has long been settled by the courts that, as a general rule, costs follow the event; unless the awarding court in its discretion, finds good reasons for ordering otherwise. " [emphasis added] In the case at hand, there is no doubt that the respondent incurred expenses and exhausted time for research. I am satisfied that the mere fact that the applicant prayed for dismissal of her application, cannot constitute sufficient reason capable to depart from the general rule regarding costs. In the result, I respectfully decline the prayer by the applicant on the waiver of costs and, accordingly, I dismiss the application with costs. It is so ordered. Right of appeal fully explained. DATED at DODOMA this 31st day of December, 2024. 4 Ruling delivered in the presence of Mr. Charles Simon, holding brief for Mr. Hurbert Lubyama learned counsel for the respondent; and in the absence of the applicant. 5