registered trustees of bakwata vs registered trustees of dodoma general muslim 2015 tzca 169 10 june 2015

IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA CIVIL APPEAL NO. 50 OF 2015 (CORAM: KILEO, J.A.. MBAROUK. J.A.. And MASSATI. 3.A.) THE REGISTERED TRUSTEES OF BAKW ATA...................................... APPELLANT

VERSUS

THE REGISTERED TRUSTEES OF DODOMA GENERAL MUSLIM .......................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) (ShangaiL_J.) dated the 30th day of October, 209 in Civil Case No. 6 of 2001

RULING OF THE COURT KILEO. J.A.: When the matter was called on for hearing Rev. Kuwayawaya S. Kuwayawaya, learned counsel for the appellants applied to Court to have the appeal be marked withdrawn. A notice of withdrawal of the appeal under Rule 102 (1) of the Court of Appeal Rules 2009 (Court Rules) had been lodged earlier on in Court by the learned counsel on 5/6/2015. He i further prayed that the appeal be marked withdrawn with no order as to costs as the parties are both religious institutions. Mr. Godfrey Wasonga, learned advocate representing the respondents asked the Court to dismiss the appeal with costs in terms of Rule 102 (4) of the Court Rules as his clients had not consented to the withdrawal of the appeal. When it was pointed out to Rev. Kuwayawaya that Rule 102 (1) was not applicable in the circumstances of the case as the notice of withdrawal was lodged after the appeal had been listed for hearing, he prayed instead that Rule 4 (2) (a) of the Court Rules be invoked and the matter be marked withdrawn. In view of the application for withdrawal of the appeal by the appellants the same is marked withdrawn under Rule 4 (2) (a) of the Court of Appeal Rules. The issue of costs has exercised our minds, especially following Rev. Kuwayawaya submission that costs should not be ordered considering that both parties are religious institutions of the same sect and hence the

need for promotion of harmony. On our part, we think however, that since the appellants waited until the matter was scheduled for hearing to file the notice of withdrawal they should be liable to costs. If they had followed the procedure laid down under Rule 102 a lot of time for both the court and the parties would have been saved. In the end we mark the appeal withdrawn under Rule 4 (2) (a) of the Court Rules with an order that the respondents be entitled to their costs. It is accordingly ordered. DATED at DODOMA this 10th day of June, 2015. E. A. KILEO

JUSTICE OF APPEAL M.S. MBAROUK

JUSTICE OF APPEAL S. A. MASSATI

JUSTICE OF APPEAL I certify that this is a true copy of the original.