ruling Kairuki Hospital vs Gadiel Maeda

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 154 OF 2023 CASE: REF:20230811000519605 BETWEEN VICTORIA GADIEL MAEDA……….....………………………………... PLAINTIFF VERSUS KAIRUKI HOSPITAL………………………………....……….………. DEFENDANT RULING: 15th & 15th Nov 2024 KIREKIANO; J, The plaintiff herein sues the defendant on an action of negligence. She claims from the defendant for payment of special damages TZS 107,528,732.75/=. The plaintiff also claims for general damages, declaratory orders and costs. When the case came for hearing on 15/11/2024, the Counsel for the plaintiff, Mr. Charles Rugaira made oral application seeking leave to withdraw the suit with leave to refile under the provisions of Order XXIII Rule 1(1)(2)(b), of the Civil Procedure Code, [CAP. 33 R.E. 2019]. He also 1 prayed this Court to consider Order XXX III rule (3) of the Civil Procedure Code, that the prayer be granted with no order as to costs. Mr. Rugaira, gave reasons for withdrawal, that being a newly engaged advocate by the plaintiff, upon perusal of the pleadings, they have discovered, that there are matters not pleaded in the plaint that may need amendment however some may facts may need other evidence which is not within plaintiff’s reach at the moment Mr. Tibanyendera, Counsel for the defendant, responded to the above prayers that since the case was scheduled for hearing and for reason stated by the plaintiff that he is not ready to proceed, he prayed the suit be dismissed for want of prosecution. It was his submission that if this Court agree on prayer to withdraw, then the same should equally be followed with cost considering that the same has been made at such a late time considering this case has, undergone mediation with costs and has been in court for a year now. He argued that the costs will deter possible conduct of filing frivolous plaint by unprepared plaintiff. In a brief rejoinder, Mr, Rugaira rejoined that, the prayer for dismissal, is unfair, He reiterated his submission that the wording of Order XXIII Rule 1 (3) of the Civil Procedure Code, is very straight forward that costs shall only be awarded if the withdrawal is made without the permission of the 2 court. It was his view that that cost shall be awardable only after there has been a winner in a case. Having carefully followed the submissions from both parties, the issue for determination by this Court is whether is whether this Court should grant the prayer to withdraw the suit with leave to refile and if answered in affirmative, whether it has to go with costs. I have taken note of the prayer of dismissal by Mr Tibanyendera, however I find it proper to deal with the prayer which was tabled by the plaintiff in the first place. The withdrawal of suits is governed by Order XXIII of the CPC which stipulate that: - 1-(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the court is satisfied- (a) that a suit must fail by reason of some formal defect; or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim. 3 (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. It is clear in terms of Order XXIII, the plaintiff has every right and at any time during the existence of the suit in court, to withdraw the whole suit or part of it or withdraw a suit against certain defendants Mulla, the Code of Civil Procedure sixteenth edition Vol 3 at page 3154, had the following to say: - "The principle underling the provision for withdrawal and abandonment is, that the law confers upon a man no right or benefit which he does not desire What is important is that there must be reasons for so doing, the reason of unpleaded facts could be remedied by amendment of pleading however I have considered the submission that some evidence may not be within plaintiffs reach at the moment. It is this circumstance, I find the reason advanced as sufficient under Order XXIII Rule 1(1) (2)(b), of the Civil Procedure 4 The counsel for the plaintiff Mr. Rugaila beseeched me to consider that, if this court grant leave to withdraw the suit with leave to refile then under order XXIII rule (3) this court should not order cost. His reasoning is that the case has not came to an end and cost is only when withdrawal is not by leave of the court. Mr Tibanyendera pressed for cost arguing that the prayer was made in late hours after this case had been in court for a year with many costs involved. Grant or refuse to grant costs is always court's discretion. Such discretion is always exercised judiciously. Order XXII Rule 1(3) CPC provides; Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. It is on basis of above Mr Rugaila argues that cost is awardable only where no leave is granted. With respect, I am not persuaded with this reasoning. My contemplation is that withdrawal of suits even with leave of the courts is the event that ends the proceeding unless the same are refiled in court. If so refiled this will be another event as far as cost is concerned. Reading from Mechmar Corporation (Malaysia) Berhad (in 5 Liquidation) vs Engineering and Marketing Limited and Others, Civil Application N. 190 of 2013, CAT at Dar es salaam the CAT cited Smt. Raisa Sultana Began and Others v. Abdul Qadir and Others, AIR 1966 All 318, it was held that: "Withdrawal of a suit is itself its end. A plaintiff withdrawing his suit is liable for such costs as the Court may award; so, the Court is empowered to pass an order only in respect of the costs. The liability for costs arises out of the plaintiff's withdrawing his suit: the suit has been withdrawn and consequently he becomes liable.” [Emphasis added] I have considered that the suit has been in court and passed mediation stage and for different reasons it has been in court for a year now with numerous court attendances. It is obvious that the defendant has spent considerable costs which deserves consideration. My emphasis is that as much as the plaintiff reserve right to withdraw a suit or abandon his claims such decision with or without leave of the court has to me made at earlier stages possible. Based on the foregoing under oorder XXIII Rule 1(1) (2) (b), of the Civil Procedure Code, [CAP. 33 R.E. 2019]., this suit is marked withdrawn with leave to refile a fresh suit subject to law of limitation. In this event, the defendant shall have costs. 6 A J KIREKIANO JUDGE 15.11.2024 COURT: Ruling delivered in presence of the plaintiff and Mr. Charles Rugaira, counsel for the plaintiff, and Mr. Mohamed Tibanyendera, Miss Foibe Komanya and Miss Shubira Balilonda, Counsels for the defendant. A J KIREKIANO JUDGE 15.11.2024 7