20060601 TZCA Dar es Salaam

I • IN THE COURT OF APPEAL OF TANZANIA. AT DAR ES SALAAM (CORAM: RAMADHANI, J.A., MUNUO, J.A., And MSOFFE, J.A.) CIVIL APPLICATION NO. 105 OF 2003 1. MR. C. K. KARIWA ADVOCATE 2. MR. MOSES MAIRA ADVOCATE . 3. MR. MAJURA MAGAFU ADVOCATE .... APPLICANTS 4. MR. RAMADHANI MALETA ADVOCATE 5. MR. JULIUS NDYA~ABO ADVOCATE VERSUS 1. RASHMIKANT MANGALDAS RAICHURA } 2. JAYESH MANGALDAS KAICHURA RESPONDENTS 3. KETAN PRANLAL DEWANI (Application for Revusion from the decision of the High Court of Tanzania, Commercial Division, at Dar es Salaam) (Kimaro, J.) dated the 12th day of September, 2003 in Commercia~ Case No. 197 of 2002 RULING OF THE COURT 12 May & 1 June 2006 MSOFFE, l.A.: Commercial Case No. 197/2002 of the High Court (Commercial Division) was scheduled for hearing on two consecutive days to wit 9/9/2003 and 10/9/2003. On 9/9/2003 Mr. Maira, learned advocate for the second defendant therein, made an oral application for transfer of the case to a court of Resident Magistrate. Apparently the ,:1 2 oral application was made because the value of the subject matter being shillings 77,000,000/= meant that the case could henceforth be tried by a court of a Resident Magistrate in view of the relevant provisions of Act No. 25/2002 which came into effect on 14/12/2002. Mr. Maira made a submission in support of the application. On his part Mr. Kesaria, learned advocate for the plaintiffs therein, opposed the application, contending that it was a delaying tactic and an abuse of court process and accordingly invited the Court to condemn to costs all defence advocates jointly and severally for adjournment of the case. After hearing learned counsel on the oral application the judge reserved her ruling. On 12/9/2003 she delivered the ruling in which she upheld Mr. Kesaria and accordingly condemned all the defence advocates to pay costs of shillings 1,000,000/= for adjournment of the trial. Apparently the other advocates were condemned to pay costs because they chose to say nothing and were thus taken to have supported Mr. Maira. It is also worthwhile to mention here that Messrs. Magafu and Julius Ndyanabo, learned advocates for the third defendant, were not 3 present in court on that day and their brief was held by Mr. Maira. Inspite of their absence they were also ordered to pay the above costs. Dissatisfied by the order for payment of the costs of shillings 1,000,000/= the court is, by this notice of motion, being asked to revise the said order. Messrs. Rweyongeza and Kesaria appeared for the applicants and the respondents, respectively. In his submission before us Mr. Rweyongeza adopted the contents of the affidavit in support of the notice of motion and added, inter alia, that Mr. Maira was not in breach of any misconduct in raising the point the subject of the aforesaid ruling and order. Furthermore, Mr. Rweyongeza urged, an order for costs, if necessary, should be judicially determined and should not, at any rate, be a penalty. In his reply Mr. Kesaria essentially repeated the earlier submission he had made before the court below and added that the order for costs was justified in the circumstances, in that for a period of about nine months preceding the trial the point was not taken by 4 Mr. Maira. Thus to raise the point at that stage was a misconduct as it amounted to delaying justice. Mr. Kesaria also contended that the order was proper because under Order 17 Rule 1 (2) of the Civil Procedure Code, 1966 the judge was entitled to exercise her discretion and thereby make an order for costs she deemed fit in the circumstances. To start with, it occurs to us that it is true that under the above sub-rule the court has the discretion to make an order for costs occasioned by an adjournment. However, we will hasten to say that in the context of this case what Mr. Maira sought for was not an adjournment. His request was for a transfer of the case as stated above. The judge heard Messrs. Maira and Kesaria on the request and then reserved her ruling for delivery on a future date. The judge eventually gave her ruling on whether or not the request was well founded in law. Her ruling in this regard had nothing to do with whether or not this was a fit case for adjournment. Therefore, strictly speaking, the above sub-rule would not apply in the circumstances. • 5 Having said so, the next point that falls for consideration is whether or not in making the request Mr. Maira was guilty of a misconduct. In the Reader's Digest Wordpoint Dictionary the word "misconduct" is defined as "unacceptable or improper behaviour". The word is also synonymous with malpractice impropriety, mismanagement, negligence or wrongdoing. In our considered view, we do not read anything in the above definition which would suggest that Mr. Maira was guilty of any misconduct. Surely, raising a legal point, however hopeless the point may be, does not amount to a misconduct. In our view where counsel errs that will not be a ground, let alone a good one, for ordering costs against him or her. It also occurs to us that from tl1e tone of the ruling the order for payment of the above costs was given as a punishment. With respect, the costs envisaged under section 30 and sub-rule (2) (supra) of the Civil Procedure Code, 1966 are never meant to act as a punishment. Indeed, this is where we agree with Mr. Rweyongeza on the passage he cited to us from Sarkar on The Law of Civil Procedure - Eighth Edition Vol. 1 at page 877 that:- • 6 "Costs should be such as can reasonably be held to be occasioned by the adjournment and should not be restricted to costs of the day Costs must not be arbitrary and . imposed by way of penalty. (Emphasis supplied) Finally, assuming it was open to the court to exercise its discretion under the above sub-rule and thereby make an order for costs in this case, there would still be no justification in making the order against the advocates who were not, in the first place, called upon to reply to Mr. Maira's submission. Likewise, it would not be open to the court to make the order against the advocates who were not present in court. Making an order for payment of costs in the circumstances would have actually amounted to condemning the said advocates without hearing them. In the event, for the above reasons, the appli.cation has merit. It is accordingly allowed with the result that the order for payment of shillings 1,000,000/= as costs is set aside. We make no order for costs. . 7 DATED at DAR ES SALAAM this 1st day of June, 2006. A. S. L. RAMADHANI JUSTICE OF APPEAL E.N.MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL I certify that this is a true copy of the original.