MASUNGA KABOTE VS MALUGU

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA CIVIL APPEAL NO.2024101710000259339 (Arising from Civil Appeal No.949 of 2024 before Busega District Court, the same arises from Civil Case No.105/2023 before Mkula Primary Court) MASUNGA KABOTE ....................................................APPELLANT VERSUS MALUGU JOHN .......................................................RESPONDENT JUDGMENT 5 & 14 November 2024 F.H. MAHIMBALI, J The main issue to resolve in this matter is where is the application for bill of costs lodged where the matter had ended at appellate Court? Is it at the first instance court or the last appellate court? In this matter, the appellant had instituted civil suit against the respondent before the trial Court (Busega Primary Court at Mkula), for the claims of Tshs 2,531,000/= being costs used to prosecute various suits in different courts. To him he alleged the said costs as resulted in 1 prosecuting civil case No. 142/2020 before the trial Court, Civil Appeal No.27/2021 before Bariadi District Court and Civil Appeal No.9 of 2022 before this Court. Prior to this, the parties had another civil suit before the trial Court and reached up to this Court, which at all times, Courts pronounced judgment in favour of the appellant. Being the case, he filed claims for costs used to prosecute cases in various courts. Before the trial court, the appellant was awarded Tshs 201,000/=; the respondent was aggrieved and appealed before the first appellate Court which rectified the trial court’s order by varying the denomination thereof to Tshs 153,000/=. The appellant is not amused with the said decision, he has approached this Court armed with four grounds of appeal which all fall under the question of evidence on proof of costs and erroneous decision by the first appellate Court on the computation of bills of costs. During the hearing of this appeal, both parties appeared in person and unrepresented. Amplifying for his appeal, the appellant stated that his grievance is centred on the low payments as per taxation done by the first appellate Court. He therefore prayed for his grounds of appeal dully filed, be considered by the court as part of his necessary submissions. Finally, he pressed for the appeal to be allowed. 2 On his part the respondent resisted appeal and argued that the appeal is baseless. He further submitted that it is not him who filed the said Civil Appeal No. 9 of 2022, that appeal and its resulting order were fraudulently obtained before the court. Otherwise, as far as this appeal is concerned, he is less concerned. Thus, prayed for the appeal be dismissed with costs. At the closure parties were invited to address the court as to whether it was proper for the bill of costs for a matter finally determined by the High Court its bill of costs be entertained by the trial court. In reply the appellant submitted that he is ignorant of those issues since the matter had ended at the High Court, he thought the recovering costs are claimable at the High court. However, he got an advice from this court’s staff that he had to file at the trial court. That's why he went back at Mkula PC of Busega and not High Court. On the side of the respondent, he stated that he had had not filed the dismissed appeal before this court as alleged. Thus, he knows nothing as which is the proper court to file the said costs as proclaimed. Having heard the rival submissions of both parties, I find prudent to determine this matter basing on the legal issue raised by the Court which seems capable to dispose of the entire appeal. 3 In Mohamed Salimin vs. Jumanne Omary Mapesa, Court of Appeal Civil Application No. 4 of 2014, it was held that as a general rule, costs are awarded at the discretion of the court but the discretion is judicial and has to be exercised upon established principles, and not arbitrarily or capriciously. Also, in the case of Geofields Tanzania Limited vs. Maliasili Resources Limited and others (Misc. Commercial Cause No. 323 of 2015) [2016] TZHC COM D 8 the court stated that: Generally, costs are awarded not as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected or for whatever appears to the court to be the legal expenses incurred by the party against the expenses incurred by the party in prosecuting his suit or his defence. Costs are thus in the nature of incidental damages allowed to indemnify a party against the expense of successfully vindicating his rights in court and consequently the party to blame pays cost to the party without fault." See also Nkaile Tozo vs. Phillimon Musa Mwashilanga [2002] TLR 276 and Tanzania Fish Processors Ltd vs. Eusto K. Ntagalinda, Civil Application No.6 of 2013 (unreported). In Devram Nanji Dattani v. Haridas Kalidas Dawda, 16 EACA 35, the Court of Appeal held that a successful defendant can only be deprived of his costs when it is shown that his conduct, either prior to 4 or during the course of the suit, has led to litigation which, but for his own conduct, might have been averted. In Donald Campbell v. Pollak, (1927) A.C. 732 at p.81, it was held that; "It is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the discretion of the Judge who tried his case, that discretion is a judicial discretion, and if it be so its exercise must be based on facts… If, however, there to, in fact, some grounds to support the exercise by the trial Judge of the discretion he purports to exercise, the question of the sufficiency of those grounds for this purpose is entirely a matter for the Judge himself to decide, and the Court of Appeal will not interfere with his discretion in that instance. " Thus, where a trial court has exercised its discretion on costs, an Appellate Court should not interfere unless the discretion has been exercised un judiciously or on wrong principles. In the instant appeal, and upon a closer scanning of the lower court’s records, it is vividly clear that it is this Court which issued an order for costs to the appellant. This is reflected on an order issued by this 5 Court (Kulita, J) on 22.11.2022, in PC. Civil Appeal No.9 of 2022 which involved the same parties in which matter was dismissed for want of prosecution with costs. In my perusal to the trial court’s records and eventually this court, it is abundantly clear that, neither the trial Court nor the first appellate which Court had issued an order of costs when adjudicating main cause but this Court only. My reading of the Advocates Remuneration Order, GN 264 of 2015 and GN No. 168 of 2023 of the Advocates and Prosecutors Rules in Primary Courts, courts’ costs are taxable as between an advocate and a client and between a party and another in matters before the High Court, Courts subordinate to High Court, arbitral tribunals, and tribunals from which appeals lie to the CAT (see order 2 of the GN 264 of 2015). The Taxing Officers are Registrar, Deputy Registrar of the High Court, Resident Magistrate Incharges of Resident Magistrate Courts or District Court, other officers of the Court as Chief Justice may appoint or such other officers as the law provides. Such other officers of the Court as the Chief Justice may appoint include Magistrates Incharge in Primary Courts pursuant to GN No. 168 of 2023 of the Advocates and Prosecutors Rules in Primary Courts (see rule 9). 6 Just as the decree which is executed is by the order of the final court in the hierarchy in the event the matter reaches there, an order for costs being also part of a court’s decree, it is also executed. However, the Advocates Remuneration Order, GN 264 of 2015 and GN No. 168 of 2023 of the Advocates and Prosecutors Rules in Primary Courts, provides the manner how to file bill of costs in a court of law (See Order 4 of GN 264 of 2015). Therefore, whereas decree are executed by the Courts that passed the decree (original courts), an order for costs though is part of trial or appellate court’s award, it being not an absolute right is not executed directly but upon taxation process. The rule of practice has been this, costs are taxable by the highest court in hierarchy which determined the matter finally. Therefore, when the matter which had started at the primary court finally reaches the High Court, it is the High Court (Deputy Registrar) who will determine the taxation costs and not the primary court (see order 2 of the GN 264 of 2015). The rationale is simple, when one appeals against the decree of the original court/appellate court appeals against its verdict in totality. There is no saving and the appellate court has all the powers during appeal and or revision to quash, alter, reverse or do anything as per law is permissible. Such powers include ordering costs. When the latter is done, it is that last court which has the 7 jurisdiction to entertain such an application and not a court subordinate to it. Having observed the same, I must therefore hold without hesitation that the trial Court had no requisite jurisdiction to try the matter on bills of cost ordered by the High Court. If the appellant still wishes to pursue the same, should file to a competent court for adjudication. Therefore, the lower courts’ decision on matters of bills of cost are hereby quashed and set aside for want of jurisdiction. Mindful that there must be an end to every litigation, I order no further costs to this matter. It so ordered. DATED at SHINYANGA this 14th November, 2024. F.H. Mahimbali Judge 8