20041103 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 117 OF 2002 In the Matter of an Intended Appeal Between 1. MARY JUNE PENNINGTON LYAMUYA ] 2. GADNER PENNINGTON LYAMUYA ] ...................... APPLICANTS AND TANZANIA ELECTRIC SUPPLY CO. LTD . ........................ RESPONDENT (Application for striking out Notice of Appeal from the-decision of the High Court of . · Tanzania at Dar es Salaam) (Luanda, J.) dated the 3 rd day of September, 2002 . in Civil Case No. 84 -of 2002 RULING KAJI, J.A.: . Before me there is an application to strike out a notice of appeal in terms of Rule 82 of the Court Rules, 1979. By notice of motion the applicants (1) Mary June Pennington Lyamuya and (2) Gadner Pennington Lyamuya, are moving the Court for an order that: "The notice of appeal filed by the respondent . be struck out and the intended appeal be --. I 2 declared incompetent on the ground that leave to appeal has not been sought as by law required, and· no application for extension to apply for leave out of time has been sought." The application is supported by an affidavit sworn by Mr. Nyange, learned counsel for the applicants. Briefly the facts leading to the application are .as follows:- On 3rd September, 2002, the High Court sitting at Dar-es- Salaam (Luanda, J.) delivered a ruling in favour of the applicants. The respondent Tanzania Electric Supply Company Limited was aggrieved. On 6.9.2002 the respondent through its Company Secretary filed a notice of appeal. Under Section 5 (1) (c} of the Appellate Jurisdiction Act, 1979, an appeal against a decision/ruling of that nature can only be lodged in the Court within the prescribed period with leave by either the - .. ,3 High Court or the Court. Application for leave must be filed within 14 days of the decision as provided for under Rule 43 of the Court Rules, 1979. But up to 10th October, 2002 when the applicants filed the application the respondent had not yet applied for leave nor was there any application either in the High Court or in this Court for extension of time within which to apply for leave to appeal to this Court. In that respect the applicants urged_ the Court to strike out the notice of appeal with costs and to declare the intended appeal . incompetent. Mr. Johnson, learned counsel for the respondent, did not oppose the application. However he objected the prayer for costs because the same was not pleaded in the application, and that parties are bound by their pleadings. On the other hand Mr. Nyange, learned counsel for the applicants, submitted that it is the principle of law/practice that a successful party is awarded costs even if he did . not pray for in the pleadings. .. 4 The Crucial issue is whether this Court can grant costs to a successful party even where they were not prayed for in the pleadings .. Mr. Nyange vehemently submitted that it is a principle of · law or practice that costs are awarded to the successful party even if not prayed for in the pleadings. Unfortunately he did not cite any statute or case law. It is common knowledge that costs of any action, cause or any other matter or issue shall follow the event, unless the court or judge shall for good reason order otherwise. In other words, a successful party has a right to be awarded costs, and that where that right is denied, the Court must give reasons for denying that right - See KISKA LIMITED v DE ANGELIS {1969) EA 6; and NJORO FURNITURE MART LTD. v TANZANIA EL:ECTRIC SUPPLY CO. LTD. (1995) TLR 205. But, in my view, this principle pre-supposes that costs were prayed for in the pleadings. In the instant case the notice of motion does not contain• a prayer for costs. In my view, the applicants cannot rightly be heard •• 5 at this stage praying for costs which they had not prayed for in the pleadings. Parties are bound by their pleadings. In the result, . the notice of appeal which was filed by the respondent on 6/9/2002 is hereby struck out under Rule 82 of the · Court Rul~?, 1979 for failure to apply for leave or extension of time within which to apply for leave. I make no order as to costs . . DATED at DAR ES SALAAM this 3rd day of November, 2004 ... S.N. KAJI . JUSTICE OF APPEAL I certify that this is a true copy of the original.· j ~.u. l . { S~A::-N. WAMBURA) . SENIOR DEPUTY REGISTRAR 'j lI l .. I b. .r ' .! . J