final judgment HERMAN ANDERSON Tanzliii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI AT MOSHI LAND APPEAL NO. 10270 OF 2024 (Appeal from the decision of the District Land and Housing Tribunal of Moshi at Moshi dated 8th March,2024 in Land Appeal No. 77 of 2017) HERMAN ANDERSON………………………………………………..APPELLANT VERSUS FATAEL ABRAHAM.……………………………………………....RESPONDENT JUDGMENT 9th Sep. & 10th Oct. 2024. A.P. KILIMI, J.: The appellant herein HERMAN ANDERSON upon being dissatisfied by part of the judgment and decree of the District Land and Housing Tribunal of Moshi at Moshi in Land appeal No. 77 of 2017 which ordered each part to bear its own costs. The appellant decided to appeal against part of the said judgment and decree, he prays this appeal to be allowed with costs and part of the tribunal’s decision specifically on costs be reversed and the respondent herein be ordered to pay the appellant his costs on the reasons that:- 1. That, the Chairman of the First appellate Tribunal erred in law for not finding that the respondent was supposed to pay the appellant costs 2. That, the Chairman of the first appellate Tribunal erred in law for not awarding the appellant costs of the appeal while he had allowed the appellant appeal, without any reason. 1 Briefly, at Kahe Magharibi Ward Tribunal ‘trial tribunal’ vide Land Case No. 64 of 2017, the respondent sued the appellant over the ownership of ¾ acres piece of land situated at Kingaroni, Ngasini B village, Kahe Ward within Moshi District in Kilimanjaro region. The ward tribunal ruled in favour of the respondent and declared him the owner of the suitland. Being aggrieved, the appellant appealed to the District Land and Housing Tribunal of Moshi at Moshi vide land appeal No. 77 of 2017 which affirmed the trial ward tribunal decision. Still aggrieved, the appellant preferred his appeal to the Resident Magistrate Court of Moshi with extended jurisdiction in Land Appeal No.3 of 2020 where the appellate court nullified the proceedings and judgment of the District Land and Housing Tribunal (Land Appeal No. 77 of 2017) and ordered a fresh hearing of the appeal at the DLHT with orders that each party to bear its own costs. The DLHT of Moshi at Moshi heard the matter and on 08/3/2024, it allowed the appeal and quashed the Ward trial tribunal decision (Land Case No. 64 of 2017) and further ordered each party to bear its own costs. Being aggrieved with such orders specifically on costs, the appellant has preferred this appeal with the above-mentioned grounds. 2 The hearing of the appeal at hand was agreed by parties to be disposed by way of written submissions. Mr. Chiduo Zayumba learned advocate appeared for the appellant and Mr. Gabriel M. Shayo learned advocate represented the respondent. Arguing in support of the appeal, Mr. Zayumba submitted that at the District Land and Housing Tribunal for Moshi at Moshi in Land Appeal No. 77 of 2017, the appellant emerged victorious but was not awarded costs instead the appellate tribunal ordered each part to bear its own costs. He submitted that the principle is that a successful part in civil legal proceedings must recover costs of litigation from unsuccessful party and the award of costs. He submitted that in that appeal the appellant incurred costs travelling from Ngasini B village where he resides to Moshi Municipality to attend his appeal. He added that the appellant also incurred costs for engaging the advocate at the first appellate tribunal and at the High Court. Mr. Chiduo suggested that the appellant deserved to be reimbursed by the respondent by way of bill of costs. He supported his assertion with the decision of Hussein Janmohamed &Sons vs. Twentsche Overseas Trading Co. Ltd [1967] EA 287 which observed that, the general rule is that costs should follow the event and successful party should not be deprived of them 3 except for good cause. The counsel also cited the decision of Geofield Tanzania Limited vs. Maliasili Resources Limited and Others, Misc. Commercial Cause No. 323 of 2015 TZHC Commercial Division. He submitted that since the appellant was the successful party at the first appellate Tribunal, the tribunal erred in law for not awarding him costs. The counsel submitted further that, where the court decides to exercise its discretion to deny a successful litigant costs of the case, it must state reasons for doing so as it was stated in the decision of Bahati Moshi Masabile T/A Ndono Filing Station vs. Camel Oil (T), Civil Appeal No. 216 of 2018 TZHC 275 at page 5 and 6. Responding to the above, Mr. Shayo learned advocate for the respondent jointly argued the two grounds. He argued that awarding costs was not a mandatory power of the court or tribunal rather a discretional. He cited regulation 21(1) of the Land Dispute Courts (The Land and Housing Tribunal G.N. No. 173 of 2003 which provides that, ‘the tribunal may make such orders as to costs in respect of the case as it deems just’. He added that it was proper for the tribunal Chairman to order each party to bear his own costs. He submitted that the tribunal put into consideration as each party incurred costs for mention and hearing dates of the appeal and that each party engaged the advocates, 4 he was of the view that there was no need for one party to pay costs to the other side. The counsel for the respondent further submitted that the land case No 64 of 2017 at Kahe Magharibi Ward Tribunal between the appellant and the respondent the decision was entered in favour of the respondent but the Ward tribunal did not grant costs but the respondent did not appeal against such order for costs. He added that the appellant was aggrieved by the ward tribunal and appealed to Resident Magistrate Court (Extended Jurisdiction) in Misc. Land Appeal No. 30 of 2020 in which the appellate court nullified the ward tribunal proceedings and quashed its decision still the appellant did not claim costs. Further Mr. Shayo argued that in Misc. Land application No. 68 of 2018 at the High Court of Tanzania Moshi between the appellant and the respondent, before Hon Mkapa J, the ruling entered in favour of the appellant and no order as to costs were issued against the respondent. He then concluded that the learned counsel for the appellant did not cite which law provides that the successfully party should be paid costs. He submitted that the fact that the appellant and the respondent both recides at Ngasini B village they both incurred money in pursuing 5 their case with their advocates, thus it was correct for the appellate tribunal to rule out that each party was to bear its own costs. Having considered the grounds of appeal and the rival submissions of the learned counsel, the issue for determination is one, which is whether the appeal at hand has merits. It is trite law that the successfully part in civil cases are to be awarded costs as a matter of their right serve for certain reasons and consideration given by the trial court or a tribunal. It is true as argued by Mr. Shayo that awarding costs is a discretional but such discretion must be exercised judiciously. And according to the law, where costs is not granted the court should give reasons. Section 30 (2) of the Civil Procedure Act [Cap 33 RE: 2019] provides that; “(2) Where the court directs that any cost shall not follow the event the court shall state its reason in writing” The appeal at hand, the appellant claims are that no reasons were issued by the appellate Chairman in denying him costs while he was a successfully winner in his appeal which nullified the ward tribunal decision. I ‘m in agreement with the argument by Mr. Zayumba learned 6 advocate for the appellant that reasons must be given when denying costs to the successfully part as said above by the law. I am mindful as rightly stated by Mr. Shayo that regulation 21(1) of the Land Dispute Courts (The Land and Housing Tribunal G.N. No. 173 of 2003 provides that, the tribunal may make such orders as to costs in respect of the case as it deems just. And I concede with him that it is a discretion of the court, I am aware this is a specific law, now be as it may let us look whether the tribunal exercised its discretion judiciously. In Shabani Mohamed Mwanambingu [2024] TZCA 564 (TANZLII) the court instructed that it is the general principle that an appellate court cannot interfere with the exercise of the discretion of the lower court unless it is satisfied that the decision concerned was made on a wrong principle or that certain factors were not taken into account. The court went on to refer with approval the case Mbogo and Another v. Shah [1968] 1 EA 93, wherein Sir. Clement de Lestang VP at page 94 had this to say: "I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that the decision is clearly wrong, because it has misdirected itself or because 7 it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” In this appeal at hand, it is undisputed fact that the appellant was a winner. The tribunal in its final order said as follows; “Baada ya kusema hayo, rufaa hii imekubalika, na hivyo uamuzi wa Baraza la Kata ya Kahe kwenye Shauri la Madai ya Ardhi Na. 64/2017 pamoja na amri zake unatenguliwa. K ila upande utabeba gharam a zake.” [Emphasis added] Now the question which follows is whether the Appellate tribunal ‘DLHT’ in Land Appeal No 77 of 2017 as rightly exercised its discretion. From the above quoted order, it meant each party was to bear its own costs of the case. It is plainly that the appellate chairman did not give any reasons as to why the winning part whom is the appellant did not get his costs from the respondent while he was the winner. Since it is also undisputed facts that parties in this appeal both enjoyed the legal 8 service of the advocates as per the appellate records, thus they both incurred costs. It is trite law as said costs should follow the event for wining part. In my view it could have been enough, for the tribunal even to say in the circumstance of the case each part to shoulder his/her costs, and this could have amounted to suffice reason. Therefore, since no reason was stated by the tribunal appellate chairman for denying costs, instead of stating the mere order that each part was to bear their own costs, in my view such powers in awarding or not to award costs conferred to the appellate learned chairman were not exercised judiciously, since he failed to take into consideration matters which it should have taken into consideration thus in doing so discretion imposed to him was not justified. For the foregoing, I find this appeal with merit and consequently upheld. Subsquently, I nullify the order of denying cost to the appellant, thus I order the appellant to have costs from the respondent only in the said case of appeal no. 77 of 2017 at DLHT Moshi. Since the anomalies were not caused by the parties, each party shall bear its own costs in this appeal. 9 It is so ordered. DATED at MOSHI this 10th day of October, 2024. X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 10th day of October, 2024 in the presence Mr. Gabriel M. Shayo learned advocate for the respondent, also respondent present. Sgd; A. P. KILIMI JUDGE 10/10/2024 Court: Right of Appeal explained. Sgd; A. P. KILIMI JUDGE 10/10/2024 10