20100826 TZCA Dar es Salaam1

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IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM ! (CORAM: MUNUO, J.A., MJASIRI, J.A., And MASSATI, l.A.) CIVIL APPEAL NO. 55 OF 2009 I SAID SALIM BAKHRESA & CO. LTD ••••••••••.•••.••..••••••.••••• APPELLANT

VERSUS I 1 1. AGRO PROCESSING AND ALLIED } PRODUCTS LTD. ••• ~ •• RESPONDENTS 2. REGISTRAR OF TRADE AND SERVICE MARKS (Appeal from a judgement and decree of the High Court of Tanzania - Commercial Division at Dar es Salaam) {Luanda, l.) I th dated the 15 day of December, 2008 in I Commercial Case No. 31 of 2004

RULING OF THE COURT 23 & 26 August, 2010 MASSATI, J.A.: The appellant and the 1st respondent, both grain millers in Dar es Salaam, had a dispute over the trademark, "PQAf', for use on their wheat flour. The 1st respondent sued the appellant for passing off in I the Commercial Division of the High Court. The appellant counterclaimed against the 1st and 2nd respondents. After hearing 2 I the parties, Luanda, J. (as he then was) wrote a judgment in favour of the respondents and dismissed the counterclaim.' However, the I judgment was delivered by the Registrar on 19/12/2908. Aggrieved by the outcome, the appellant filed the present appeal in this Court. i When the appeal was called on for hearing, Dr. Masumbuko I st Lamwai, learned counsel for the 1 respondent raised a preliminary i objection, notice of which had been filed earlier on ,under Rule 107 (1) of the Tanzania Court of Appeal Rules 2009 ("tme Rules''). The objection was that since the judgment was not delivered by a judge I in terms of Order XX r. 1 of the Civil Procedure Code (Cap 33 - RE 2002), there was no judgment yet, capable of giving birth to the decree, the subject of the appeal. Therefore I:the appeal was premature and therefore incompetent. He prayed :that it be struck out with costs. I Mr. Paul Kihwelo, and Mr. Issa Maige, learned counsel for the I appellant, quickly conceded to the preliminary objection I in

principle but vehemently resisted the prayer for costs. The1 question that we 3 i have to determine is whether or not to allow the preliminary objection with costs. The learned counsel for the appellant had three reasons for I I resisting the award of costs. First, they said, •the Notice of I Preliminary Objection itself was defective for I containing an I extraneous document called "reasons to support, the notice of I ! preliminary objection". In their view such a document was not I anticipated under Rule 107 (1). Secondly, since the 1st respondent I i was present at the delivery of the impugned judgment, he should I I have sought to rectify it there and then, and come to this Court with I I clean hands. Thirdly, the 1st respondent raised no such objection in I his response to the affidavit filed in support of an application for stay I I of execution filed in this Court by the appellant. 0n the premises, i I the learned counsel were convinced that the 1st respondent was not I entitled to costs. 4 I Dr. Lamwai's response was that since there was no prescribed ! form for a Notice of Preliminary Objection under the . Rules, I and since the Notice as it stands is self contained, in that it contains all the I I requirements shown in Rule 107 (1) the document detailing the I I reasons, is not outlawed, but essential to explain the authorities, I photo copies of which were attached.

Secondly, e~en if he were I present during the delivery of the judgment he is nqt the author of the record of appeal containing the defective judgment I and decree; I and so he had no duty to seek to rectify those docu:ments. Thirdly, since the application for stay of execution was not before the Court it i . i was irrelevant to refer to it at this stage. The ;learned counsel I i concluded his address by praying that the appeal b~ struck out with i costs. The reasons advanced by the learned counsel !for the appellant I i appear to be preliminary objections in themselvel As this Court I once observed in SHAHIDA ABDUL HASSANALI KASSAM v. I MAHED MOHAMED GULAMALI KANJI Civil Application No. 42 of I I 1999 (unreported) such practice is to be discouraged and "nipped in 5 the bud". The issue that the learned counsel should have addressed I I themselves on, is whether there are good or exceptional I reasons for depriving the respondent of his costs, and whether, wny and how did I the reasons advanced by them amounted to good reasons or exceptional circumstances. This Court's powers to make orders as to costs~ are prescribed in Rule 114 (1). By the wording of that rule those are discretionary ' I powers, that have to be exercised judiciously. This means I that such discretion has to be exercised in accordance with established principles and in relation to the facts of the case and on

relevant I grounds connected with the case including any matter relating to I litigation, the parties' conduct in it and the circumstances leading to i litigation. Although it is difficult to generalize what would be good or ' exceptional reasons or circumstances, the following principles can be said to have been firmly established in our jurisdictitjn: (i) that costs I are in the discretion of the Court (ii) that costs should follow the I I event except when it appears to the court that: there are good reasons or exceptional circumstances in the case to warrant some , I 6 other order to be made. In such a case, it is incumbent upon the unsuccessful party to show good cause or exceptional cjrcumstances. I Learned counsel for the appellant in this case may have tried to show that the preliminary objection raised by the 1st respondent, I was not properly raised but could that constitute a good reason or I exceptional circumstance? We are prepared tQ accept that, I sometimes the improper and unreasonable raising of issues or I allegations by a successful party that have the effect of significantly I I increasing the length of the proceedings, could deprive him of costs I either in whole or in part, but we do not agree that in the present I I case the preliminary objection was defective as claimed. Under Rule I 107 (1), a Notice of Preliminary Objection is required to contain

only the grounds of objection, such as. the specific law, principle, or decision relied upon. In the present case, the Notice of Preliminary Objection, sufficiently sets out the ground for the objection, and specifically, by mentioning the law alleged to have been contravened I (i.e. Order XX r. 1 of the Civil Procedure Code (Cap 33 - RE 2002)). I Even without the document containing the "reasons" we think that 7 the Notice by itself is self sufficient, and cannot be assailed. We also I agree with Dr. Lamwai that his attendance at the delivery of the I I judgment does not give him the duty to rectify ~he impugned documents; and that any reference to the application for stay of I execution, would be extraneous to the matter at hand.I In our view I those criticisms do not amount to good reasons or exceptional I I circumstances. We are not therefore satisfied that the Appellant has ' I discharged that burden. On the other hand, we have considered that I between 14/5/2009 and 10th July, 2009 when the Appellant I obtained I copies of the impugned judgment and decree; and fi,led the present appeal, learned counsel had sufficient time to reflect: and rectify the I two documents. Again after filing the appeal in ,July, 2009 and ; August, 2010, when the appeal was cause listed for hearing, or the filing of the preliminary objection on 17/8/2010 the Appellant had the I option of

withdrawing the appeal under Rule 77 (1) Of the Rules and go back to the High Court to put their house in order. Although the award of costs is not a penalty, if the appellant had been diligent enough and taken any of the above steps, costs would have been averted, and the respondent would not have taken the trouble of 8 ., preparing the preliminary objection, looking for the authorities, appearing and arguing it in court. For the foregoing reasons we are unable to fault the 1st 1 respondent for lodging the preliminary objection, and for depriving , I him of his costs. Since the appellant has conceded that the appeal is ; incompetent and for the immediately foregoing reasons, the same is I c struck out with costs. It is so ordered. DATED at DAR ES SALAAM this 26th day of August, 2010. I i the original.;

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