RULING PARTSON MWAKANYASA VS MOSE MASEBO

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA MISC. CIVIL APPLICATION NO. 15658 OF 2024 CASE REFERENCE NO. 202407021000015658 (Originating in Land Appeal No. 56 of 2022, high court of Tanzania at Mbeya) PARTSON MWAKANYASA ………………………………………APPLICANT VERSUS MOSE MASEBO …………………………………………………RESPONDENT RULING Date of hearing: 11/09/2024 Date of ruling: 24/10/10/2024 NONGWA, J. The applicant seeks stay of execution of the decree in Land Appeal No. 56 of 2002 and Bill of Costs No. 40 of 2023 of the high court of Tanzania at Mbeya. It is made under section 95, orders XXI rule 27, XXXIX rule 5(1) of the Civil procedure code [Cap 33 R: E 2019] “the CPC”. It is supported by affidavit of the applicant. The application is opposed by the respondent through his counter affidavit. He also filed notice of preliminary objection that; 1 a) The affidavit supporting the chamber summons is incurably defective by containing a defective jurat of attestation contrary to section 8 of the Notaries public and Commissioner for Oath, Cap 12 R: E 2029 b) This honourable court lacks jurisdiction to hear and determine the application by the applicant c) The application is incompetent for failure to indicate the execution proceedings for which the applicant prays for this honourable court to stay. I ordered preliminary objection to be heard first. On the hearing date parties appeared in person, without legal representation. They prayed and were granted leave to argue preliminary objection by filing written submissions. They conformed to the drawn scheduling order. In the submission in first objection, the respondent submitted that the affidavit in its jurat does not state place where the applicant took oath. In support cited section 8 of the Notaries Public and Commissioner for Oath, Cap 12 which requires jurat of attestation to show place it was taken by a commissioner. The court was referred to the case of Samiha Abdulkadir Osman vs Mohamed Rafi, Misc. Civil Application No. 315 of 2022 in support. 2 In the second objection that this court has no jurisdiction, the respondent submitted that after the applicant filing notice of appeal to the Court of Appeal as deponed under paragraph 3 of the affidavit and notice attached, application for stay of execution was supposed to be filed to that court and not this court. He added that once notice of appeal is filed to the court this court ceased to have jurisdiction to grant stay of execution. He supported the argument with the case of Tanzania Electric Supply Company Limited vs DOWANS Holdings SA & Another, Civil Application No. 142 of 2012, cat at DSM and AERO Helicopter (T) Ltd vs F.N. Jansen [1990] TLR 142. With regard to third objection, it was submitted that the application is not attached with a copy of notice of execution or it has been pleaded that the respondent has initiated execution proceedings. He referred this court to rule 11(7) of the court of Appeal Rule, 2009. From the above prayed objections to be sustained and the application to be dismissed. Responding to the above, the applicant rightly conceded to all three objections. In the first objection, the applicant referred the court to the case of The Director of Public Prosecutions vs Dodoli Kapufi and Another, Criminal Application No. 11 of 2008 [2011] TZCA 46 (6 May 2011; TanzLII in which the court emphasized that the affidavit must 3 contain statement or declaration of facts, verification clause, jurat and signature of the deponent and of a person authorized to administer oath. The respondent added that omission to show date and place where oath was administered renders the affidavit incurable defective, he supported the point with the case of D.P. Shapriya & Co. Ltd vs Bish International B.V. [2002] EA 47. With regard to second and third objection, the applicant replied conjointly. He submitted that he was supporting the objection that the application was incompetent since there was notice of appeal filed to the Court of Appeal in terms of rule 83(1) of the court of appeal rules. From the above the respondent prayed that objections be sustained and the application to be struck out without costs. After considering the application documents and submission on preliminary objection, it is clear that the applicant has conceded to all objections save for award of costs. During rejoinder the respondents insisted the matter be struck out with costs. From the contention above, as a general rule in common law legal system costs in relation to civil litigation must follow the event, that is to say a successful party is entitled to costs of the case. Section 30 of the Civil Procedure Code, Cap 33 provided; 4 ‘30(1) Subject to such conditions and limitations as may be prescribed and to the provisions of any law from the time being in force, the costs of, and incidental to, all suits shall be in the discretion of the court and the court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.’ Since the court has discretion in awarding or denying a party his costs, the discretion must be exercised judicially and not by whims. Ordinarily, costs of the suit follow the event, unless otherwise decided. The event contemplated is who wins the case. In Abubakar Khalid Haji Another vs Zamzam Yusuf Mushi Others, Civil Appeal No. 388 of 2022 [2024] TZCA 466 (14 June 2024; TanzLII) the court stated; ‘It bears reaffirming that, in civil litigation, the general rule is that costs must follow the event. Costs are a panacea that soothes the souls of litigants that, in the absence of sound reasons, the Court will not be prepared to deprive the successful litigant of. These are the usual consequences of litigation to which the appellant is not exempt.’ In this matter although the applicant was in favour of not awarding costs, he did not give any reason. Having considered the circumstance of this case, I find that the respondent must have his costs one, he filed 5 counter affidavit and notice of preliminary objection. This implies that used his energy, time, resource and did research which led to the discovering the weakness in the applicant’s application. In VIP Engineering and Marketing Ltd versus Citibank Tanzania Limited, Civil Application No. 24 of 2019 [2021] TZCA 112 (14 April 2021; TanzLII) the court stated; ‘After all, it is a thorough preparation which will normally unveil a preliminary point of law.’ Two, the respondent filed written submission in support of the preliminary objections, this means the respondent apart from discovering preliminary objection which on 7/8/2024 was known to the applicant, had to engage in research so as to argue them in detail and convince the court to hold in his favour. Surely the applicant is to blame, he did not candidly concede to objection at the earliest possible opportunity, but waited the same to be done at the stage of his turn to respond to the respondent’s submission. This is unwarranted as it would have saved time and resource of both parties and the court. And three, the applicant is one to blame, for filing the application in the wrong court, as the respondent has taken steps in opposing the application including the objections which have been conceded by the applicant. It means the applicant is liable to compensate the respondent. 6 In the upshot, as the applicant has conceded that the application is incompetent, I do hereby strike it out with costs. V.M. NONGWA JUDGE 24/10/2024 Dated and Delivered at Mbeya this 24th October 2024 in presence of the parties in person. V.M. NONGWA JUDGE 7