Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND APPEAL NO. 22261 OF 2024 (Originating From Application No. 64 of 2024, Temeke District Land and Housing Tribunal) WILLIAM MBILA IBRAHIM............................................................. 1ST APPELLANT BI. CHAUSIKU MSAGWA........................................................ 2nd APPELLANT

VERSUS NICO SAIMON MJENDA................................................................ .....RESPONDENT

JUDGMENT 16th to 29th October, 2024 E.B. LU VAN DA, J The Appellant above mentioned is appealing against the ruling of the Tribunal where declining to award costs to the Appellant after sustaining a preliminary objection. In the memorandum of appeal, the Appellant grounded that: the learned Chairperson erred in law and fact for striking out the matter without costs and did not assign reason for so doing, neither stated if the Appellant pressed for costs during the hearing of the preliminary objection. Mr. Kelvin Modestus Challe learned Counsel for Appellants submitted that the Appellants incurred costs to engage advocate, payment of fees, daily fares for advocate to appear when the matter was called for mention at the Tribunal. He submitted that the Appellants incurred costs due to negligence of the i Respondent. He faulted the learned Chairperson for sustaining the preliminary objection but leaving the question of costs undecided and without assigning any reason as to why did not award costs to the Appellants. He cited Magandera Swag arya vs Yoshua Waryoba, Civil Appeal No. 421 of 2020, CAT, for proposition that the Appellants after winning a case, were entitled to costs. In reply, Ms. Salome Michael Mwakasaka and Mr. Qassim Saad Mushulle learned Counsel for Respondent prefaced their submission by citing regulation 21 of the Land Disputes Courts (The District Land and Housing

Tribunal) Regulation, GN. 173 of 2003. They submitted that the word "may" in the cited regulation connote the Tribunal for its wisdom may award or withhold costs depending on the circumstances of the case where it deem fit. They cited Nkale Tozo vs Philimon Musa Mwashilanga [2002] TLR. They submitted that the learned Chairperson did not award costs due to the circumstances of the case for the main reason for striking the matter was due to the Chamanzi Ward Tribunal's failure to join the Second Appellant in a certificate of mediation, argued the learned Chairperson on its wisdom strike out the matter without costs to pave way for parties to go back to Chamanzi Ward Tribunal for mediation. They cited Francis Nyamiti vs Bagagi Bomani, Land Appeal No. 14 of 2022, HC Tabora. They submitted that in their oral submission at the Tribunal, the Appellant did not press for costs rather asked for the matter to be struck out only. They 2 submitted that the Tribunal could not grant something which was not sought. They submitted that to seek costs vide appeal, is equal as bringing a new fact. Generally speaking, award of costs in civil suit is governed by the provision of section 30 of the Civil Procedure Code, Cap 33 R.E. 2019, I quote, '(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 ofsuch powers. (2) Where the court directs that any costs shall not follow the event, the court shall state its reasons in writing. (3) The court may give interest on costs at any rate not exceeding seven percent per annum and such interest shall be added to the costs and shall be recoverable as such' The above provisions validate the argument of the learned Counsels for Respondent that award of costs is at the discretion of the court, regard that the discretion must be exercised judiciously with wisdom. Herein, the learned Chairperson neither awarded costs nor assigned reason for withholding costs. The rule is that where the Tribunal rule that costs shall not 3 follow the event, ought to adduce reasons for that course. Failure to assign reason for withholding costs, the learned Chairperson technically is opening up invitation or window for being faulted by this Court. The argument of the learned Advocates for Respondent that the Appellants did not press for costs at the Tribunal, is misleading. Going by the records of

the Tribunal, in the joint written statement of defence, the Appellants had pleaded that due to the seriousness of the omission grounded in the preliminary objection, asked the suit to be struck with costs. At the oral argument, the learned Counsel for Appellants asked the matter to be struck out with costs. Meaning that it was upon the Tribunal to determine as to whether it award costs or not. Failure to award costs and avoiding to assign reason, amount to fatal irregularity. The argument by the learned Advocates for Respondent that it is the Chamanzi Ward Tribunal which omitted to join the Second Appellant in a certificate of mediation, is legally untenable. In the said certificate for mediation attached to the pleading (application) reflect the name of Nico Saimon Mjenga as complainant and William Mbila Ibrahim as respondent. The name of Bi. Chausiku Msagwa was mentioned in the contents of the certificate. Nowhere the Chamanzi Ward Tribunal explained if at all the said Bi. Chausiku Msagwa was impleaded as co-respondent. Importantly in the contents of the certificate for 4 mediation, the Ward Tribunal made it clear that Mr. William Mbila Ibrahim is recognized as such by the Respondent but at the hamlet leadership is known by a different name of Rajabu Yusuph Kibabu. But nothing was done by the Respondent to address this situation in the impleadment of parties. To my view,

after the preliminary objection was raised, it was incumbent/imperative for the learned Counsel for Respondent to concede. As alluded by the learned Counsel for Appellants, the omission was so obvious in such a way that it was unnecessary to let it be argued. With that remarks, I rule that the Appellants were entitled to costs as matter of rights. If the Respondent wanted for the Tribunal to exercise its wisdom for withholding costs, they could be keen to readily concede the preliminary objection which was so obvious and fatal to the proceedings. Had the Tribunal meant that it was not intending to award costs it could had assigned reason for such course. In the case of Magandera Swagarya (supra), at page nine, the apex Court ruled, 'We have, lastly, to consider Mr. Mahemba's plea that his client be exempted from payment of costs for reasons he advanced. Settled position is that costs follow the event, that is to say, a winning party is entitled to being paid costs unless there are good reasons to hold otherwise (see Paivis Guiamaii Faza! vs National Housing Corporation, Civil Appeal No. 166 of 2018 (unreported)' 5 Therefore, the decision of the Tribunal is faulted and reversed. The Appellants are entitled to one third of instruction fees only, which will be subject to assessment by the taxing officer/chairperson. The appeal is allowed. However, I refrain to impose further costs in this appeal, for reasons that parties are still determined to re-file the matter at the Tribunal. Judgment delivered in the pres^mte of Mr. Qassim Saad Mushulle learned Counsel for Respondent and in the absence of the Appellants. 6