19830625 TZHC Mbeya

... I. 2 1' o_'/ I!T TE HGH COURT OP '1ANZi\IA AT LiF'YA MISCLIANEous cIVi: APPLICATION T0.11 OP 1982 I$MA:LG. IARO..........LPPIICANT 1 JCSEPHI2E idGOiIEh) 2 K-SSflIA. IR U I I N G IsmM1 Gi Iazaio the applicatr (original (rendctn -t) has filed this bill of oos whie1i cOriins 13 i±ems with . to1 amount of Shs.1,162/=. The respondents (original plainti?±s) have both reftted the bill of costs. I do.not propose to set outeach item in the bill of costs but, rother, in the circtuistancee of this inattr, T. will set out the background of-the suit upon which the bill of costs arose, It.was Cjvjl C. No. 20/1981 which the two respondents, wife and husband s instituted against the applicant claiming 15,O 00/= defematoy daimges. The suit 'as instituted. fl Mbey District Court. At the first hearing of the suit a preliminary point of law was ruised by the applicant, thexi the Regioiiiil 12olice Commander for Mbeya Regioa j jhat he could not be sued by the plaintiffs in his personal capaciti. It was argued by the applicant that the act over which he was being sued for dcfanntionv:as done in the course of his official duties and as such the Attoiiey General ought to be joined as a secoi-ali defendant, oreover, it was further argued by the applicant that hould the A.G. be joined as a defendant then the matter would fall out of t --a subordinate ourtte jurisdiction, that i the same would iaaro to be filed in the High Court. The trial magistrate co:sidcred the said c:o'ument and xuled -that the A.G. could be joiaxt by amending the ulaint and thereafter The same court would conaidcr and make a decision on the question of jurisdiction, The case wrs Thom Qdjoumed to afford time to the plaintiffs to amend Thcir Jaint to join the A.G. as defendaut The plaintiffs were then not otei by Counsel. Theywentand secured the services of learned counsel. Mr. Vhvaki.ugwe later appeared in court rei1emortly oppood t:o applicanttc arguments of joiniug the s a de2ondant - / 'o S.-, Ake 2 - Then another iz -r.te made a rLiag dated 27/6/61 in which he fiiuëd from :nkia; am orr hcther or not the .C. chould be joined as d c f znd said rst - .ir, P.R. Rcteyunga R.M. (us he then v,as) simply intinted to the parties to either. cvail themselves of the provisions of Sectdon 78..cnd Order 42 fluL: 1(a) and (2) of the CivL Procedure Code, 19d5 or ap200l Oinc -t'.The ordep the of the court to effeca that the L.G. be oiriad as The ruling of.Nr. Botounga was not iivom c'fcet.ins -bad Mr.. Mwokingwe wrote a letter to the court dated 18th July, 1981 applying for leave to withdraw the suit with liberty to file i. fresh suit in the appropriate registry.* prom the wording of Mr. iiNakingwo Is letter it is ôlear that he had agreed to join The AG * as a 2nd defendant to the suit whereby the same would have do be filed in the High Court. This is the only meaning I gather froiti lIr Mwakingwe'â application of 18/7/61. The said application was duly granted on 22/7/81 whereby the court gave leave to the wtThdwal of the suit by Mr Mwaklngwe under Order JO:II rule 1 (1)(2)a) of the Civil Procedure Code s 1966 with oosts It is upon this order of the Court that the applicant hs filed his till of costs a2 - 3in5t both an However, when tho suit o.2C/8l woe withdrawn no similar suit was filed in ito HiEdi Court as was intended by The applicationof withdrawal On ito contrary another suit on m1a facto ie. same cause of.aotion was reoiDonad in beya District Court as Civil C. No41/81 The only difference in facts between ivi1 C. No20/81 and CiviL C. No 41,'Sl is firstly that in the lattcr suil the plaintiff was one 1e Josephine LIComoIci Secondly the darae was not quantified but was claimed as general damaes, Thirdly, the 'ttorney General was not joined as defendant a Tas envisaed. Rrth1y tint the least, no froth court fees were hargea for re-opening the case i.e. Civil Co No. 4]J81 - I have venously considcre the background ci the suit for which costs are sought to be tnced iu,this matter ..Indced there is an order for costs That was made by The oourt in favour of the applicant upon the withdrawal of the suit in ;iestion As far a. I am concerned I have no jurisdiction to questcn or reverse that ordcr However, I am of The considered view that I have the right to-interpret the circumstances covering the wi1drawal of Civil C.No. 20/81 and the. effect therefor On the facts I have giyen above g in my humble view s Civil C. 1'To. 20/81 was not decide invour of either party to entitle this court to tex co.s'tq therein. yeither party as. successful in that -/ -3- suit to warrant this court to tnx his costs The suit or matter was not finally decided in favour of anyone It was still goin on on the same facts and the some cause of action. Neither party could then raise a plea of rs—judicats against The other party Even.the pleadings in the latter case remained substntially the same! It,is for This reason, in my view, thatthe sane court saw fit to re—open the case without any fresh fees4 Although there. are two case files with two different registration numbers, yet, in my humble view, it remains the same cause which was decided in Civil C. No. 41/81 by the same court I am of the considered humble view that the cause of.action could .have been propep1y proceeded in the same case fi1e.ie. Civil C. No. 20/81 but merQiy amend the pleadings instead of opening a different case fi1e:. I have care:ftilly read the rule govexming taystina of costs. in Subordinate Courts, The jnstant costs are costs arising out of a suit in a subordinate courti The relevant rule governing -the insi?aTt costs is rule 36(2) of the dvocates' Remuneration and Rhxatiaa of. costs Th.iles 1920 - 57 as amended by G.N. 89/1962 This rule reads, and I quote.-. ' 36(2) In Subordinate courts costs may be allowed to a suceessft.]. pay according to the scale provided in the Second Schedule to this PartsU (the underscoring is mine'). As there was no successful party when Civil C. No. 20/81...was wi -thdxawn There is no pirty, in the circumstances, who is entttled to .have his costs inxed in that suit' Costs arising out of Civil C. No .20/81 shall be xed at. the ultimate dcisicn o' the cause which was oontiiiue*i in Civil C • No'. 41/81 and in The appeal case therefrom if any I therefore rule That tntion of costs in.Civil C. No. 2118]. is premature. J1ie bill of costs filed by the applicant is, in the circumstsnces, rejected as premature and misconceived"ft No order as to costs M.D. NCEALIJI DISTRICT RISISTRA2/lhZrJG MASTRR s/6/83 Delivered at.Mbeya in the presence of the respondents in personbut in The absence of the applicant This the 25th day, of Ju.ne 1983' M,D 1L! DISTRICT R3L3 TRAP/TAXING MASTER .?5/6/83.