JULIUS MELCHION MAHAY VS VITA FOAM T LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 288 OF 2014 (Arising from Commercial Case No. 49 of 2010) JULIUS MELCHIONI M AH AY........................................... APPLICANT VERSUS VITA FOAM (T) LIM ITED.............................................RESPONDENT 7th September & 15th October, 2015 RULING MWAMBEGELE, J,: The applicant Julius Melchioni Mahay through a law firm going by the name Pato Legal Consultants filed the present application seeking the order of this court to grant an extension of time to appeal to the Court of Appeal. The application has been made "under section 14 of the Law of Limitation R.E 2002" supported by an affidavit of the applicant. On 05.12.2014, the respondent through RK Rwenyongeza & Co. Advocates filed a two point preliminary objection (henceforth "the PO"). The PO states: 1 1. The Law of Limitation does not apply in matters of the Court of Appeal; and 2. The Court has no jurisdiction to entertain the application. When the matter was called on for hearing of the PO on 07.09.2015, and after the respondent had earlier filed skeleton written arguments in support of the PO as required by the provisions of rule 64 of the High Court (Commercial Division) Procedure Rules, 2012 - GN. No. of 2012. Mr. Payowela, the learned counsel who appeared for the applicant sought to withdraw the application stating that he conceded to the PO. Mr. Zake, leanred counsel, who appeared for the respondents who had filed the PO had no objection to the withdrawal of the application but was quick to pray for costs. Mr. Payowela stated that he indeed conceded to the PO but prayed that the application should be withdrawn without costs. This is a ruling thereof. The bone of contention between the learned counsel for the parties in this application is in respect of costs. That is; whether the application should be marked withdrawn with or without costs. I have had an opportunity to discuss this point in some of my previous rulings. Of recent are the decisions Mohamed Enterprises Vs the National Food Reserve Agency & Anor, Commercial Case No. 182 of 2013 and Pradeep Kumar Gajjar & 2 ors Vs Vita Grains Ltd, Miscellaneous Commercial Cause No. 16 of 2015 (both unreported) whose 2 rulings I pronounced on 16.09.2015 and 29.04.2015 respectively. I will reiterate my discussion on these two cases, for I still hold the same position today. My starting point will be the provisions of subsection (2) of section 30 of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 (henceforth "the CPC"). It reads: "Where the court directs that any costs shall not follow the event, the court shall state its reasons in writing." As per subsection (1) of section 30 of the CPC, the costs of, and incidental to, all suits are vested in the discretion of the court. The general rule is that a successful party must have its costs. Once the court departs from this general principle, in the light of subsection (2) of section 30 of the CPC, it must assign reasons for doing so. This general rule has been a subject of discussion in a good number of cases in this jurisdiction. In Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd [1967] 1 EA 287; the decision of this court (Biron, J); His Lordship, I quote from the headnote, held: "The general rule is that costs should follow the event and the successful party should not be deprived of them except for good cause". 3 And His Lordship went on to quote from Mulla: the Code of Civil Procedure, 12th Edition, at Page 150 where it is stated: "The general rule is that costs shall follow the event unless the court, for good reason, otherwise orders. This means that the successful party is entitled to costs unless he is guilty of misconduct or there is some other good cause for not awarding costs to him. The court may not only consider the conduct of the party in the actual litigation, but the matters which led up to the litigation." The above paragraph in the 12th Edition has been improved in the 18th Edition (2011) of the same legal work by Sir Dinshah Fardunji Mulla, at page 540 as follows: "The general rule is that costs shall follow the event unless the court, for good reason, otherwise orders. Such reasons must be in writing. This means that the successful party is entitled to costs unless he is guilty of misconduct or there is some other good cause for not awarding costs to him; and this rule applies even to proceedings in writ jurisdiction." 4 The general rule that costs shall follow the event has also been discussed by this court in at some length in Nkaile Tozo Vs PhUimon Mussa Mwashilanga [2002] TLR 276 and In The Matter of Independent Power Tanzania Ltd and In The Matter of a Petition by A Creditor For An Administration Order By Standard Chartered Bank (Hong Kong) £ft/Misc. Civil Cause No. 112 of 2009 (unreported). In these two decisions, this court referred to a plethora of authorities on the point. Such authorities include Hussein Janmohamed & (supra), Karimune and others Vs the Commissioner General for Income Tax [1973] LRT n. 40, N. S Mangat Vs Abdul Jafer Ladak [1979] LRT n. 37, M/S Umoja Garage Limited Vs National Bank of Commerce, High Court Civil Case No. 83 of 1993 (unreported), Njoro Furniture Mart Ltd Vs Tanzania Electric Supply Co Ltd [1995] TLR 205 and Kenedy Kamweia Vs Sophia Mwangulangu & another HC Miscellaneous Civil Application No. 31 of 2004 (unreported). I agree with the reasoning in the Nkaile Tozo and Standard Chartered cases (supra) and propose to follow them in determining this matter. In the matter at hand, the respondent's counsel filed the PO and skeleton written arguments in its support before the oral hearing. He must have spent time and resources in preparation of the PO including entering appearance thrice in this court until 07.09.2015 when the applicant opted to withdraw the application. These are costs involved in the suit which the applicant must shoulder. I find no sufficient reason why the respondent should be deprived of the same. 5 On this point, I find it irresistible to quote the statement of Bowen, L.J. in Cropper Vs Smith (1884), 26 Ch. D. 700, at p. 711, quoted by the High Court of Uganda in Note Waljee's (Uganda) Ltd Vs Ramji Punjabhai Bugerere Tea Estates Ltd [1971] 1 EA 188: "I have found in my experience that there is one panacea which heals every sore in litigation and that is costs. I have very seldom, if ever, been unfortunate enough to come across an instance where a party ... cannot be cured by the application of that healing medicine". In a somewhat similar tone, this court [Othman, J. (as he then was - now Chief Justice of Tanzania)] echoed the foregoing excerpt in the Kenedy Kamweia case (supra) when confronted with an identical situation. His Lordship simply but conclusively remarked: "Costs are one panacea that no doubt heals such sore in litigations". I share the sentiments of Their Lordships in the foregoing quotes respecting costs as a panacea in litigation. To borrow Their Lordships' words, I feel comfortable to recapitulate that costs are one panacea that soothes the souls of litigants that, in the absence of sound reasons, as is the case in the matter at hand, this court is not prepared to deprive the 6 respondent of. These are foreseeable and usual consequences of litigation to which the plaintiff is not exempt. In the upshot, I decline the invitation by Mr. Payowela, learned counsel for the respondent and, accordingly, proceed to order that Miscellaneous Commercial Cause No. 288 of 2014 is marked withdrawn at the instance of the applicant with the usual consequences of costs. D /aM A R ES SALAAM this 15th day of October, 2015. J. C. M. MWAMBEGELE JUDGE 7