MOHAMED ENTERPRISES LTD

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 182 OF 2013 MOHAMED ENTERPRISES LIMITED PLAINTIFF VERSUS THE NATIONAL FOOD RESERVE AGENCY THE HON. ATTORNEY GENERAL DEFENDANTS 8th & 16th September, 2015 RULING MWAMBEGELE, J.: Dr. Masumbuko Lamwai, speaking on behalf of Ms. Catherine Solomon, both learned counsel for the plaintiff, has sought to withdraw this suit. Mr. Malata, learned Principal State Attorney for the defendants has no objection to the prayer for the withdrawal of the suit but prays for costs. The basis for the learned Principal State Attorney's prayer is that the matter has been in this court for almost three years and that a lot of efforts have been dedicated to the suit. He argues that the defendants are entitled to costs as per the provisions of section 13 of the Government Proceedings Act, Cap. 5 of the Revised Edition, 2002. 1 On the other hand, Dr. Lamwai, learned counsel for the plaintiffs argues that each party should bear its own costs as the defendants have not done much on the suit save for filing of the Written Statement of Defence. In the premises, urges the court not to make any order as to costs. This is a ruling in respect of that aspect only. The bone of contention between the learned counsel for the parties is in respect of costs. The learned counsel for the plaintiffs, as already alluded to above, seeks the indulgence of this court that there should not be made any order regarding costs as the defendants had just filed a Written Statement of Defence in defence of the suit. They did not even file the witnesses' statements, he argued. But Mr. Malata, learned Principal Stated Attorney for the defendants thinks that the defendants are still entitled to costs. I have listened well to the contending arguments by the learned counsel for the parties. From the arguments, it does not seem contested that the government, just like other parties to a suit, is entitled to costs. The provisions of section 13 of the Government Proceedings are in point here. The section related to costs in civil proceedings to which the Government is a party. It reads in part as follows: "In any civil proceedings to which the Government is a party, the costs of and incidental to the proceedings shall be awarded in the same manner and on the same principles as in cases between private persons and the court shall have power to 2 make an order for the payment of costs by or to the Government accordingly". The learned Principal State Attorney is therefore in the right track to pray for costs. The only issue to be answered in the present instance is whether the circumstances of this case warrant the defendants to be granted costs. In civil cases, the general rule is that a successful party must have its costs. This is derived from the provisions of subsection (2) of section 30 of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 which require the court to assign reasons in case it does not order costs to follow the event. The subsection reads: "Where the court directs that any costs shall not follow the event, the court shall state its reasons in writing." This general rule was underscored in Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd [1967] 1 EA 287, I quote from the headnote, as follows: "The general rule is that costs should follow the event and the successful party should not be deprived of them except for good cause". And the court went on to quote from Mulla: the Code of Civil Procedure, 12th Edition, at Page 150 where it is stated: 3 "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." The general rule has also been discussed by this court in at some length in Nkaile Tozo Vs PhiHmon Mussa MwashHanga [2002] TLR 276 and In 4 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) Ltd 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 Fax [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 Kamwela Vs Sophia Mwangulangu & another HC Miscellaneous Civil Application No. 31 of 2004 (unreported). I share the reasoning and verdicts in the Nkaile Tozoand Standard Chartered cases (supra). Dr Lamwai and Ms. Solomon, learned counsel for the plaintiff seem to argue that this court should depart from the general rule because nothing much has been done by the defendants except for filing of the Written Statement of Defence. With respect, I find myself unable to agree with the learned counsel. The fact that the defendants did not file the witnesses' statements but filed only the Written Statement of Defence does not seem to me to be good reason to depart from long established principle of law that costs must follow the event. In the situation at hand, certainly, the defendants filed the Written Statement of Defence and must have spent time and resources in preparation of the suit including entering appearance in this court. These are costs involved in the 5 suit which the plaintiff must shoulder. I find no sufficient reason why the defendants should be deprived of the same. 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 Waijee'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". I 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 recap that costs are one panacea that soothes the souls of litigants that, in the absence of sound reasons, as is the case in the present 6 instance, this court is not prepared to deprive the defendants with. These are foreseeable and usual consequences of litigation to which the plaintiff is not exempt. In the upshot, I decline the invitation by the learned counsel for the plaintiff and, accordingly, proceed to order that this suit is, with the usual consequences of costs, marked withdrawn at the instance of the plaintiff Order accordingly. DATED at DAR ES SALAAM this 16th day of September, 2015. 7 \ V . V ■>. * ./•- J - ,$ — 7 7 T 'J J. C. M. MWAMBEGELE JUDGE 7