MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 9671 OF 2024 GEOFFSON'S INVESTMENT LIMITED...................................... 1st APPLICANT GEOFREY KAHWILI................................................................... 2nd APPLICANT VERSUS LUSUNGU JAPHET MALEKELA (The administrator of estate of the late Twilumba Japhet Malekela...................................1st RESPONDENT ALLY LOWELA............................................................................. 2nd RESPONDENT RAJABU MAGANYIGE................................................. 3rd RESPONDENT SIJAONA PAZL........................................................................... 4th RESPONDENT RULING 19/08/2024 & 30/8/2024 GWAE, J The contentious issue between the parties is on, whether the applicant is entitled to withdraw, the application at hand with leave to re-file after has noted an anomaly to wit; failure to plead in the supporting affidavit the late supply of the certified copies of the judgment and decree intended to be appealed. When this application was called on for hearing before me, the applicant's advocate one Titho Ebehard Lwila sought leave of the court to withdraw the application for extension of time to lodge an appeal to the Court with liberty to re-file. The 1st respondent's counsel, Emmanuel Mbuga strongly objected the prayer of withdrawal with leave to re-file except without leave. His objection is grounded on two (2) reasons:- One, that, the 1st respondent has filed his counter affidavit opposing the application and two failure by the applicant to account each day of delay has been expressly pleaded in the counter affidavit. When required to support his objection for the sought withdrawal of the application with leave to re-file, Mr. Mbuga stated that, the applicant's advocate has not given sufficient cause as required under Order XIII Rule 2 of CPC and that, the reason given is not the formal defect. Bolstering his arguments, Mr. Mbuga cited the case of Invocavit Zakayo Mushi vs. PA and 3 others, Land Case No. 01 of 20220 and the famous book of Mullar, 17th Edition at page 1622. In his response, Mr. Tito argued that, the applicable provision of the law is Order XXIII Rule 1 (2) of the CPC and not Order XIII Rule 2 of the Code wrongly cited by the respondent's counsel. He went on arguing that, 2 denial to give leave to the applicant to re-file his application is tantamount to a denial to hear the parties. Hence, prejudicial to the applicant. He finally prayed for the order of the Court withdrawing the application with leave to re-file. In his brief rejoinder submission, Mr. Mbuga admittedly stated that, Order XIII Rule 1 of the CPC that he cited during his submission in chief was just a mere error. He then maintained that the applicant's application be marked withdrawn without leave to refile. I am alive of the law that, withdrawal of the lawsuit or application may be sought under provisions of Order XXIII Rule 1 (1) and (2) of the CPC and not Order XIII Rule 2 of the Code. Order XXIII Rule 1 (1) (2) reads; "1 (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the court is satisfied- (a) that a suit must fait by reason of some formal defect; or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to 3 institute a fresh suit in respect of the subject matter of such suit or such part of a claim". According to the above quoted provisions of the law, in my view, immediately after an institution of a suit the plaintiff, applicant or appellant is at liberty to withdraw his lawsuit or part thereof against all defendants or some of defendants. That denotes that, once the plaintiff or applicant or appellant seeks withdrawal order, the presiding court has no mandate to refuse except consequential orders like award of costs or otherwise. I subscribe to the foreign in jurisprudence in Smt Raisa Sultana Began and others vs. Abdul Qadir and others, All 318 where it was stated that;- "There is no provision for any act to be done in the suit by the Court for making the withdrawal effective or even after the withdrawal of a suit is itself its end. The plaintiff withdrawing his suit is liable for such costs as the court my award: So the court is empowered to pass an order only in respect of the costd' In my considered view, upon request by the plaintiff, applicant or appellant the presiding judicial officer, is obliged to withdraw the matte as sought notwithstanding that, the defendant or respondent, as the case may be, has filed his written statement of defence or counter affidavit. 4 However, the situation is different where the plaintiff, applicant or appellant seeks withdrawal with the leave of the court to institute afresh his or her suit, application or appeal. It is so, as he or she must obtain leave of the court of doing so after giving sufficient reason (s) to the satisfaction of the court pursuant to Order XXIII Rule 2 of the CPC. Normally, leave to file afresh a suit, application or appeal is grantable when there is apparent legal defect like none joinder of party, wrong identification of a suit property, failure to disclose cause of action, etc and sufficient reason given by the plaintiff. The essence of leave to re-file a matter is to get rid of the statutory preclusion of a subsequent matter after withdrawal as per sub-rule (3) of Order XXIII Rule 1 of the CPC. However, before permission being granted to refile a suit or application or appeal, there must be either formal defects or sufficient grounds. In our case, the applicant's advocate is found asserting that he has omitted to plead late supply of certified copy of judgment and its decree. I do not think if, the applicant is granted leave to institute application afresh will affect the contents of his letter, if any, requesting for supply of the certified copies of the DLHT for appeal purposes and date of their issuance/supply. Thus, even if the applicant is granted leave to re-file 5 and pleads late supply of the judgment and decree by the trial tribunal, still justice will prevail without being prejudicial to the respondent. Nevertheless, I find there is negligence on the part of the applicant, which deserves blame as in my view; the applicant or his advocate ought to be diligent in drafting his application. Having demonstrated as herein, I allow the sought withdrawal of the application with leave to re-file. The applicant shall bear the costs of this application. It is so ordered. DATED at DAR ES SALAAM this 30th day of August 2024. 6