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P\l THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
CIVIL REFERENCE NO.1 OF 2018
DB SHAPRIYA & COMPANY LIMITED : APPLICANT/DECREE-HOLDER
VERSUS
REGIONAL MANAGER, TAN ROADS LINDI .. RESPONDENT/JUDGMENT-DEBTOR
(Reference from the Ruling and Order of the Taxing Officer of the Court of
Appeal of Tanzania at Dar es Salaam)
CHon. E.Y. Mkwizu, Taxing Officer)
dated 26th day of March, 2018
in
Civil Appeal (Bill of Costs) No. 110 of 2013
RULING
24th August & 26th September, 2018
This is a reference under Rule 125 (1) of the Tanzania Court of Appeal
Rules, 2009 ("the Rules") from the ruling and order dated zs" March, 2018
made by Han. E.Y. Mkwizu, Deputy Registrar, in her capacity as Taxing
Officer, in Civil Appeal (Bill of Costs) No. 110 of 2011. In that ruling she
struck out an application by DB Shapriya & Company Limited, the
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applicant/decree-holder, for taxation of a bill of costs in respect of an appeal
(that is, Civil Appeal No. 110 of 2011) that had been instituted by Regional
Manager, TANROADSLindi, the respondent/judgment-debtor
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In order to _a~preciate the context in which this reference W2.S
instituted, I find it necessary to begin with a summery of the essential facts
of the dispute.
On 9th May, 2017, the respondent's appeal against the applicant
herein (that is, Civil Appeal No. 110 of 2011) came up before the Court for
hearing, but the respondent defaulted appearance. Accordingly, Mr. George
Kilindu, learned counsel who appeared for the applicant herein, prayed for
the dismissal of the appeal with costs. Following Mr. Kilindu's prayer, the
Court ordered as follows:
"For our part we fully subscribe by the prayer of the
learned counsel for the respondent [the applicant
herein]. In the circumstances. the appeal is,
accordingly, dismissed under Rule 112 (1) of the
Tanzania Court of Appeal Rules, 2009. H
Subsequent to the dismissal of the appeal, the applicant, through Mr.
Kilindu, on ih June 2017 filed for taxation a bill of costs amounting to TZS.
33,315,562.00. The respondent, through Mr. Benedict Mtinangi, learned
counsel and a Legal Officer from TANROADS' Legal Unit, resisted the
taxation on a preliminary point that by its order of 9th May, 2017 this Court
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did not award the applicant anycosts and, therefore, there was, in effect;
no bill of costs to be taxed.
In his written submissions to the Taxing Officer on the preliminary
paint, Mr. Mtinangi argued, in essence, that the Court exercised its
discretion under Rule 114 (1) of the Rules by withholding costs as it did not
make any order as to costs when it dismissed the respondent's appeal for
non-appearance. He fervently submitted that had the Court been minded to
award costs to the present applicant in whose favour the appeal was
determined, it would have said so expressly in its order.
To bolster his position, the learned counsel urged the Taxing Officer to
seek inspiration from the decision by the High Court in Nkaile Tozo v.
Phillimon Musa Mwashilanga [2002J TLR 276, which concerned the
construction of section 30 (1) and (2) of the Civil Procedure Code, Cap. 20
RE 2002 (CPC) governing the award of costs of, and incidental to, all suits.
The relevant part of that decision is at pp. 278-279, which I take the liberty
to reproduce as follows:
"Whether or not the first appellate court was entitled
to deny the [appellant} his costs will largely depend
on the construction of section 30 (1) and (2) of the
Civil Procedure Code (the Code). Our section 30 of
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the Code is 117 pari msteri: wiJh section 35 of the
Indian Code of Civil Procedure. The respective
interpretations of these two identical provisions have
now made it trite law that the aflirlarding of costs
is not automatic. In other words, they are not
swerdeasa the successful party as a matter of
course. Costs are entirely in the discretion of
the court and they are awarded according to
the facts and circumstances of each case.
Although this discretion is a very wide one/ like in all
matters in which Courts have been invested with
discretion the discretion in awarding or denying a
party his costs must be exercised judicially and not
by caprice (See the Indian case of Naramma v.
/(ota177177a (1965) 1 and ~lIR 433). Thus when a party
successfully enforces a legal right and in no way
misconducts himself he is entitled to his costs as of
right: Civil Service v. GSN Company [1903J 2 KB 756
CA. "[Emphasis added]
On the adversary side, Mr. Kilindu contended that since the Court
explicitly mdicated in its order that it fully subscribed to his prayer that the
appeal be dismissed with costs, the Court did not have to state expressly in
its consequent order dismissing the appeal that costs had been awarded as
well. While stressing the cardinal principle that "costs follow the event",
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rnear.inq that a successful party must be awarded .costs, he took the view
that the holding in Nkaile Tozo (supra) supported his position as opposed
to that, of the respondent.
Having considered the competing written submissions, the Taxing
Officer sustained the objection and, as a result, struck out the taxation
cause. She reasoned, at first, based upon Rule 121 (1) governing the
assessment or taxation of costs as well as Rule 124 that guides the taxation
of costs, that the Court's scheme for payment of costs contemplates the
existence of a decision or order of the Court assessing and fixing the
quantum of awarded costs or, in the alternative, a decision or order for
payment
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of costs subject
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to taxation. On taxation of costs, the Taxing-
Officer took the view, in particular, that:
"... in taxation proceedings/ the taxing master
assesses the amount of costs payable under the
costs order/ meaning that unless there is in
existence an order/decision for payment of costs/
assessment/taxationof costs cannot be carried out. rr ,'.
Secondly, while the Taxing Officer agreed with both Mr. Mtinangi and
Mr. Kilindu that, as illustrated in Nkaile Tozo (supra) and elaborated by the
Court in Tanzania Fish Processors Ltd. v Eusto K. Ntagalinda, Civil
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Application No.--6 of 2013 (unreported), costs ordinariiy -follQw the event
unless otherwise decided, she particularly disagreed with iVlr. Kilindu's other
limb of his argument that the Court in the instant matter awarded costs as it
indicated its acceptance of his prayer for the appeal to be dismissed with
costs. She stressed ner view that costs could not be claimed where the
decision of the Court is silent on the question of costs.
At the hearing before me, the parties were represented by the same
legal counsel that appeared before the Taxing Officer.
In his oral submissions, Mr. Kilindu repeated essentially the same line
of argument that he put before the Taxing Officer. He underlined that if the
Taxing Officer had looked at the Court's order in its totality she would have
concluded that the Court had awarded the applicant costs after it had
indicated its unreserved subscription to his prayer for the dismissal of the
respondent's appeal. The said full subscription, he added, negated the
necessity on the part of the Court to state explicitly that the dismissal was
made with costs. He thus urqed me-to reverse the Taxing Officer's decision.
Mr. Mtinangi, on his part, disagreed with Mr. Kilindu. He reiterated
what he stated before the Taxing Officer that while costs ordinarily follow
the event, they are awarded at the discretion of the Court and that an
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award of costs must be 2xplLcLtly made. VI/hile acknowledging that the Court
indicated that it subscribed fully to the applicant's prayer (for dismissal of
the appeal with costs), he insisted that the order for dismissal of the appeal
for the non-appearance of the respondent was made without any award of
costs. The learned counsel, once again, relied upon Nkaile Tozo (supra)
and Tanzania Fish Processors Ltd (supra).
From the rival learned submissions, the kernel of the contest is the
question whether the Taxing Officer erred in deciding that this Court did not
award any costs to the applicant in its order of 9th May, 2017.
For a start, it is common cause that costs of, and incidental to, all civil
actions are awarded in the discretion of the Court: see, for instance, the
decision of the Court in Tanzania Fish Processors ltd (supra). In
exercise of its discretion to award costs, the Court is generally enjoined to
award costs to the successful party on the basis of the principle that "costs
follow the event." Nonetheless, it is also trite that the Court may withhold
coststo a successful party on any justifiable ground, which may include that ,,_
party's misconduct. In this regard, I fully subscribe to the stance taken by
the High Court in Nkaile Tozo (supra), in particular, that the awarding of
costs, being a discretionary process, is not automatic and that costs are not
7
__ - awarded to the successful party as a matter of course. I find NkaHe Tozo
(supra) quite relevant even though it concerned the construction of section
30 of the CPC, which is, admittedly, not applicable to the procedure before
this Court. In my view, the same principles for awarding costs apply in both
the High Court and this Court even though their respective sources may be
different.
I would also add that since the discretion in awarding or denying a
party his costs must be exercised judicially and not by caprice, the Court is
enjoined to state explicitly and specifically which party is to meet the costs
of the action of the other party to the action. That is so especially on the
reason that an award of costs to one party against the other grants a
benefit to the former and imposes a liability on the latter. Such an award,
therefore, cannot be merely implicit.
In the instant case, it is undisputed that the order at hand was
preceded by the Court's explicit and unambiguous expression that it fully
acceded to ~1L Kllindu's prayer for termination of the, appeal for the non-
appearance of the present respondent. On the other hand, I would agree
with Mr. Mtinangi that what the Court did in its ensuing order was
dismissing the appeal without indicating anything as to costs. In my view,
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the language used by the Court in the order. is platn, clear and unequivocal;
it ls capable of one meaning only, which is that "the appeal is ... dismissed
under Rule 112 (J)//of the Rules. Nothing was stated as to the costs of the
action. Certainly, it is arguable that the costs in the appeal ought to have
"followed the event",'whlch, in the matter, was that the applicant, being the
successful party, was entitled to costs. But then, I do not think that such
costs would inevitably and automatically "follow the event" even where the
Court is explicitly silent on that aspect when handing down its final order of
disposal of the matter as was the case in the instant matter.
With respect, I am on the whole unpersuaded by the claim by Mr.
Kilindu that the Court must be reckoned to have awarded costs as it stated
so expressly that it subscribed fully to his "prayer for dismissal of the appeal
with costs" and that the said expression negated the necessity on the part
of the Court to state explicitly that the dismissal was made with costs. I
would reiterate my earlier position that for the reason that an allocation of
costs to one party against the other grants a benefit to the former and
correspondingly imposes a liability on the latter, such an award must be
made specifically and explicitly in the final disposal order, upon the basis of
the principles discussed earlier. Adding to or implying anything in the
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Court's order. lJnd~r roo Sf beyond what the court.staterr so expressly,
would be wide of the mark.
In sum, I find no fault in the Taxing Officer's finding that the Court did
not make any award as to costs in the order at hand. For that reason, the
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reference is without any substance. It stands dismissed with costs.
DATED at DAR ES SALAAM this is" day of September, 2018.
G. A. M. NDlKA
JUSTICE OF APPEAL
I certify that this is a true copy of the original.
""y Al
~y~~l~
A.H. MSUMI
DEPUTY REGISTRAR
COURT OF APPEAL
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