20161102 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA ; · {COMMERCIAL DIVISION). AT DAR·ES SALAAM. '.i: .. ••'. MISCELLANEOUS COMMERCIAL APPLICATION NO. 190 OF2016 (Arising.frp:mJ:()m.mer_ci.a~Case No. 1lCl of 2013) - . -- - ---- _ _ _. ..'. ·_ ..-·;;c - ·;;. ,_. ---·-'·... - .·. ·----····-··--··---·- ,. ___ _ NASR.A SAID ... n~•111t••··~•!!11 ■•.•······••.•·······•··························.;.······· APPLICANT :~~ ..-:_. ·:.·-~./ 1 .--::· ;·:_ . VERSUS ·.·.·. KCB BANK TANZANIA.LIMITED .~ . ~:.~· .............. ~ ............• RESPONDENT · <c:;<- •;•>\)-·,.;. · RULING The applicant Nasn::, Said had filed the 'ap.plicatfr)nJor ·1eave to appear and defend Cornrnerc.ial Case No. · 130" of 2013; a summary suit filed by the respondent KCB Bank Tanzania Limitted under the provisions of Order XXXV i . · . . I of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 (hereinafter , "the CPC"), When the application was called on for hearing on 06;·10.2016 Mr. Elisa Mndeme, the learned .coun·sel who appeared for the respondent sought to ·concede to the application. The learned counsel also pra·yed that costs should ' . . be in. the:,main suit. · It is_important to note at. this jl.Jtlctur~ that .the respondent's counsel had not filed any. counter-affidavit but, in its . stead, 1 wrote a letter to this court intimating· that the responde:nt had no objection to ! the applicant'~ application to appear and defend the surhmary suit. . i The applicant, who appeared in person because her advocate was appearing • . •jt ,. · in the Main Registry of the High Court in another· mattdr, chose to respond to . . ! . .th~ __ question posed. by_ the_ court on_ what was her• view iri respect of ··the ·. · · concession and the flanking· prayer by the respondent~s counsel for '.costs to be in the main suit. The applicant had no objecti·on to ;the concession by the . . respondent's counsel but vehemently argued against t0e idea of. cos.ts being • I ! . . ! . . . . . in the cause. She argl)ed that costs should be award~d at'the conclusion of the pre~ent application because she had spent a lot of money in preparing the . . I.· application ?ind that costs in this application ·will help her in the defence of the . . ! main suit. ' _In a short rejoinder, the lean:,ed counsel for the respondent stuck to his guns stating that costs sho~!d. be in the cause ·becau~e he has sa:Jed the court's and . applicant's time by ~is conc;ession, Having he~rd the applic·ant and counsel. for the respondent, I reserved my decision thereon to today which I · am now set to give. • ./~1/~t The only point on which the respondent's counsel and applicant have locked ·. r;;)...- )r?~ . . .) horns and which this ruling must answer is whether, the application having been conceded by the respondent, costs should be awardable at this stage or await finalization of the main suit. Luckily, this issue will not detain me as I have had opporturi.ities more than. once to deal with it is some of my pre,yio_~s decisions; ·the recent one being the case of DB Shapriya. & Co. Ltd Vs Gulf Concrete and Cement & A11or,· Miscellaneous Commercial Cause No. 248 of 2015 (unreported). In 2 ... that case, the applicant's·. :aounsel, ·having realized by himself that his applicatioh was file_d · under wrong provisions, opted to w,ithdraw it and, somewhat like in the prEisent case, pray.e_d -~hat costs. should not be ordered arguing . that the respondent did not unveil the. . .anomaly . . . . and ·. that. he had saved the court's and ·responderit1s time:·· That. prayer, like.. in th~ case at '•--:: hand, was vigorously .. ··objec;t~d ..-:::· In .d~termining .the· point,. i revisited ·.my· ·-- ear.lier rulings on . the . point . .inMohamei:i Enterprises-Vs . -.,.. . ilie National . . . . . . :· Food Reserve· Agency.&.-. -Anor,. C_ommercial Case No ... 182 of 2013~ ,.: :' Mazenge Investment .Company Ltd ·vs Director, Singida Municipal· '.· :· '· · ,... , .. Council,' CommerC:ial: ca:~e·}jd. i6 -~f 2015, Pradeep Ku~ar Gajjar & 2 ors '. ; :• .. :.' .. ' Vs Vita Grains· -Ltd, Mis~etlaneous .Commercial- .Cause No. 16 of 2015 ·and · Daikin Tanzania Limited_ ·Vs Daikin Industries Limited & Anor, - .· .. •.·: .Miscellaneous Cornmt~rciai 'c~use No. 252 of 20iS (all· un~eported) and. ruled ·, .. ,. · · that costs shouid be awarded to the respondent .. r still find that that was the · ,. position of the law and' .opt t~ reiterate the' ,3rguments th~rein 'in this ruling. . J . In civil cases, the geh·erai rule. is that a success.ful party. must have its costs. This position is derived .frcini thf.provisions. of subsect_ion .(2) of section 30 of the ·CPC which require· the· co~(t to assign reasons in _cas,e it does not order . . -·.. . . costs to follow the event. The subsection reads: . "Where the court directs that any costs _shall not fol_low the event, the court shall state its reasons in writing." • · This ··gene.ral rule was .~m~_erscored by this court (Biron, J. )_ in Hussein · .Janmoh_amed &. Sons Vs Twentsche Overseas._Trading Co. Ltd [1967] 1 EA 287, at 290 as follows: . · ... 3 . r )' ... the.general rule is.that costs should follow the ·event and ·the successful ·_party should· not -be·. deprived of them excep·t for good cause". Arid the court went on _to 'quote fro·m -Mu Ha: the Code of.Civil Procedure,· - . : .. _ 1th Edition, at Page 1so·whe're ·it ·is ·stated: • • ~ . , _ __ - · - - - - · - - · - · • . • . ..! • , - ~ ·- ••• -- ·.--··" _.._ _ ___._____,;,_ _ _ _ _ _ ,.._,__.__ _ _ _ "The generc!I. rule· is t_hat- costs shall follow the event u"riless the court; ·for good reason, otherwise: . . . . . . . . . ~ . orders. T~is _mei3ns. that the· successful party is entitled to ~6sts··unless he. is guilty of misconduct • • rf4 ...... ~ •• . . . . . or there is. some - other good cause for. not . a\.varding ·:-costs to ··him. The -court may _not. only . ' _consider the conduct of the party __ in the actual . litigation, :but the matters . which: ·1ed up to the. · litigation. fl· _- The above paragraph.: ·- . ih .the . i2 th Edition ~jf. Mui.lei: - the . Code' . ~f Civil . . Procedure, 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 foliow ' . 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 oLmisconduct _or there is some .. other good _c:au~~ for r:iot . ' awarding costs. to him; and_ this rule applies even to proceedings in writ jurisdiction." 4 ' ' • . [Emphasis supplied];. This general rule has also. been discussed ' .• ' ~: •. •• •:. l •• • ' • • •,'; ,•·•••. t •• ... by this court at some length in • . • ' • ,· •. • . . • Nkaile Tozo Vs Philimon Mussa Mwashi/anga [2002] TLR 276 and In The Matter of Indepe~d~J/i Po~er Tanzania Ltd a11d In The Matter of :, ,;· a P~tition by A Creditor. For, ~n_ Ad,;,inist;;tion Order.By Standard _, ·' .. -----Chartered-Bank (Hong Kong)-Ltd'Misc. . . :· . Civil-· C:ause-~No . .. 1.12 ~f 2009 . . . ' ·:·. (unreported). In· thesetwo ·decis.ions,.;this court· referred ·to a· plethora of -: . . '. ·._• .~ ··:.-;. ··- auth oriti es on the .point'. Such ·a~thorities" include Hussein Janmohamed ·(suprn), -Karimune ·a~'/i ~th~r;. .. ·vs. ·1:11e Commissioner :General for • ·-•: ' . . •· . .... .. ; ; .. _- • ! ~ " • income Tax:[1973] L~.T-n. 40;_-i/ sftangat VsAbdu/JaferLadak[1979] . , ·.,,.,.:. : .--~- .. LRT n. 37.1 M/S UmojtJ Garage Limited Vs National Bank of Commerce, . . . ·. . . . . . . . :. •."f· . ' ·._ ·• .. ,. - .: .; : . . ' . .. . . High Court Civil Case No. 83 of 1993 (unreported),· Njoro. Furniture Mart ltd Vs Tanzania. r:i~ctri~ .. S~p~~;·co Ltd _.. ... · . . [i°995],·T~R 205 -a~d Kennedy . . .. Karnwela V.c; Sophia.'Mwangulangu & another HC Miscellaneous Civil Appiication No. 31. ·of 2.004 (~~ni,pcirt~d). : ; ·share the r_easonrn·g and verdicts. in the .Nkai/e· Tozo and ·Standard Chartered . . cases . (supra) and propose to . . .. . follow them in determining the-matter -at issue between th~ parties.; Mr. Mdeme, learned counsel 'for the applicant has argued that the respondent i has saved the applica·nts and court's time in conceding to the application so l · .- -. that the main suit is expeditiously heard· on· merits to justify his proposition 1 :>'> -· that costs should be In -the cause· and beckoned. the court to so order. Respectfully, I am not prepared to swim his current. , The fact that the respondent h~s saved anybody's time in conceding to the application does not, in my view, justify departure from the long established principle of law ~ . ~ . . . . .. ' . : . . . - founded on statute and case law that~ costs'.· must ·follow the event. To the contrary 1 I agree with the applicant that· she has· ·expended monei in the .5 preparation of the application .. In the premises, I fin~ no good re~son why: the applicant should not be granted them at this stage:' . ,- On this point, I find it irresistible to quote the statement of Bowen, ·L.J. in; Cropper Vs S1nith (1884), 26 Ch. D._ 700; at p.. 711, quoted by the High' ••. l - Court · of Uganda .in .. ·Waljee's {Uganda} Ltd Vs Ramji Plinjabhai=· ·-- _;. • • •a • _• • ~--••-• ----~-• .-•- _ _ :.__..... + - : •. . . ~ • ,·. Bugerere Tea Estates Ltd [ 1971] 1 EA 188 in whic;:h His Lordship $fated: ~,., ·. ; ~: ,. .... ..... _ "I have found in my experience that the~e is· one panacea· which ·heals ·every sore in litigation and · I that is costs; · -I have :very seldom, ..if e,J.er, .•. i . been .. · '. unfortunate enough ·to. come· across an instance where a,_• .. party .;: c;:ann.ot be: cured by the application of that healing medicine". - I . •... :': In a. somewhat similar tone, this court [Othman,· J; (~s he then was - now; • . ·- • • I • , i . • • I • • ; Chief Justice of Tanzania)] echoed the foregoing exce_rpt in Kennedy'.· Kamfittela (supra) when confronted with an identical situatiqn.. His Lordship 1· . . . simply but conclusively remarked:· · · · · . i "Costs are one panacea that no: doubt heals such i i sore in litigations'~•-· . j . : ·-. . . . . .• •. . .. . . i I share the sentiments of Their Lordships in the foregoing quotes ;regarding ! costs as a panacea in litigation .. To 'borrow Their Lordships' words, I feel . . . . . ·. litigants that,· in the ab·sence . of . sound reasons, . . comfortable to recap that costs are one panacea that soothe the souls of as is the case. in the present . . instance, this coij'rt is ·~ot prepared .to dep~ive the· applican't o(. -These""are · foreseeable and us.ual consequences of_ litigation to which the respondent is not exempt to pay. 6 · . · For the avoidance of doul:Jt, I: must state· at this juncture, that I am aware · that the authorities cited. above· were dealing with ~osts in main suits;· it was· not in· applications. However, I have no iota of doubt that the. principle· can be applicable to applicationsfike the present one a·s welf ' .. , . • • . '. . ..• f In. _the final-analysis, ,l.-..declin~·the invitation by ML Mnderne~ learned counsel for. the respondent qf.'lQ,':iQCC0[9ingly,,--PrDCeed. to. order;. that the ~ppi'i~ant fs entitled to costs in the present appncati~n the concession' c>f the ·r~spondent .notwithstanding. This application is ,allowed with costs. The applicant to file :.•.• I · her written state~en( of.:d~ferice. in a .fortnight re:ckoned from the -date hereof. · • Order accordingly. II .. . , =. : ~~ ...._·.. . . I r:Jd DArED at[~AR .ES .sALAAM·this·2 ,daiof Noyember, 2016 . . .J:~ C; M.-: MWAMBEGELE .JUDGE 7