THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE SUB-REGISTRY OF MWANZA

AT MWANZA
LAND APPEAL NO. 358 OF 2024
(Arising from District Land and Housing Tribunal for Mwanza in Land Case No. 224/2021)

ZAGALUU RAJABU HISSA ………………………………………………. APPELLANT

VERSUS
IDD HAJJI KARUNDU …………………………………………………. RESPONDENT
JUDGMENT
12th and 18th March 2024.

CHUMA, J.
Aggrieved by the order of the District Land and Housing Tribunal for

Mwanza at Mwanza in Land Case No. 224 of 2021, the appellant preferred

this appeal fronting one ground: -

1. That the trial chairman erred in law for failure to grant costs to
the applicant without giving reasons.

Briefly counted, in 2021 the respondent filed a case against the

appellant before the tribunal which survived until 21.11.2023 when it was

withdrawn for discrepancy in proper description of the suit property. The

respondent however was given the liberty to refile and he has already

filed Application No. 58 of 2024 which is pending before the tribunal.

When the matter came for hearing, the applicant was represented

by Ms. Mwengela John while the respondent enjoyed representation by

Mr. Arsein Molland. For the appeal, Ms. Mwengela argued that the

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Tribunal withdrew the application without awarding the cost. That is a

matter of law for a court to award cost and failure of which, reason has

to be given under section 30 (2) of Civil Procedure Code Cap 33 R.E.

2019 (hereinafter the Code). Ms. Mwengela seeks reliance on the case of

Rashid Muna Mwangi Vs. Haji Muna Mwangi and two others Misc.

Land Appeal No. 43 of 2022 HC of Tanzania at Dodoma and the case of

Mohamed Salmin Vs. Jumanne Omary Mapesa Civil Appl. No.

4/2014 CAT at Dodoma (both unreported) to the effect that the

established principle is that cost would usually follow the event; unless

there are reasonable grounds for depriving a successful party of his costs.

That, on 21.11.2023 the respondent’s advocate prayed to withdraw the

Land Case No. 224 of 2021. Although the appellant’s advocate registered

no objection, he prayed for an award of cost because the matter has

been pending in that tribunal since 2021 and was in a hearing stage. The

appellant engaged an advocate to represent him and was incurring

expenses.

According to her, failure by the trial Tribunal to award cost was

contrary to the law. She backed her position with the case of the

Registered Trustee of Moravian Church in Southern Tanzania Vs.

Tanzania Zambia Railways Authority and 3 Others (unreported).

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That the trial Tribunal had no reason not to award cost. She consequently

prayed for the appeal to be allowed with cost and for the respondent to

be ordered to pay the cost in Application No. 224 of 2021.

In reply, Mr. Molland opposed the appeal that, the cited case of

Rashid Mwangi (supra) is not binding in this court. The District Land

and Housing Tribunal has its laws governing its procedures. That,

according to Regulation 21 of the Land Disputes (District Land and

Housing Tribunal Regulation, GN. No. 174/2003 (hereinafter the

regulations) the tribunal is empowered to make such orders as to cost in

respect of the case as it deems just. That, according to section 51 (2) of

Land Disputes Court’s Act Cap 216 R.E. 2019 (elsewhere the Act), the Civil

Procedure Code will only apply in the case of Lacuna.

That, the cited case of Rashid Mwangi (supra) was heard on its

finality contrary to the instant appeal which was withdrawn after raising

concerns about the proper description of the property. The matter was

withdrawn with leave to refile and is already filed before the tribunal as

Application No. 58/2024; hence the issue of cost can still be determined

in pending proceedings. That, the issue as to why the reasons were not

given by the trial tribunal, is not the respondent’s fault but rather the trial

tribunal. The respondent should not be punished by the omission of the

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trial tribunal. I was referred to the case of Mount Meru Flowers

Tanzania Ltd Vs. Box Board Tanzania Ltd Civil Appeal No. 260/2018

which held on page 10 that parties should not be punished for errors

committed by the court.

He further submitted that both parties incurred costs. Regarding the

overstaying of the matter since 2021, Mr. Molland submitted that the

recent chairperson took the matter from his predecessor who is no longer

there.

In rejoinder, Ms. Mwengela submitted that section 51 (2) of the Act

is applicable where there is Lacuna. While Regulation 21 of the Regulation

provides for an order as to cost, section 30 (2) of the Code provides for

the reasons to be given when costs are not awarded.

Having considered the rival submissions of both learned counsels

for the parties. I will now consider whether the sole ground of appeal has

merit. From the submissions of parties, the ground of appeal has three

limbs; first, whether the Code is applicable at the Tribunal in the award

of costs; second, whether the trial chairman was duty bound to state the

reasons for not awarding costs, and third whether the Tribunal erred in

not awarding cost to the appellant.

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 The Settled law is that a successful party to the proceedings needs

to be awarded costs to reimburse him for the costs incurred in prosecuting

the matter. Costs are awarded neither to punish the losing party nor to

enrich the winning party. They are only awarded to compensate the latter

for the costs reasonably incurred in prosecuting or defending the case.

Further, as correctly submitted by the appellant, it is the law that

cost shall follow the event. Where the court directs that any cost shall not

follow the event, the court shall state its reasons in writing as stated in

the case of Njoro Furniture Mart Ltd Vs. Tanzania Electric Supply

gCo Ltd [1995] TLR 205 (CA). This legal proposition is also found in

Mulla's Code of Civil Procedure, 12th Edition of 1953, on page 150

which provides;

“The general rule is that costs shall follow the event unless
the Court, for good reason, otherwise orders. This means
that the successful party is entitled to costs unless he is
guilty of misconduct or there is some other good cause for
not awarding costs to him. The Court may not only consider
the conduct of the party in the actual litigation but the
matters which led up to the litigation.”

Nonetheless, the awarding of costs is not automatic and it is in the

domain of the trial court/tribunal. They are awarded to the successful

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party not as a matter of course but discretion. They are awarded

according to the facts and circumstances of each case.

In the case of Nkaile Tozo Vs. Phillimon Musa Mwashilanga,

[2002] TLR it was held;

“The award of costs in not automatic. In other words, they

are not awarded as (sic) to 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 in awarding or denying a party his
costs must be exercised judicially and not by caprice “

As correctly submitted for the respondent, the district land and

housing tribunal’s proceedings are governed by the Act [CAP. 216 R.E.

2019 and the Regulations (GN. NO. 174 of 2003). In the case of Lacunae,

the Tribunal adopts the procedures provided by the Code. Section 51 (2)

of the Act reads;

“The District Land and Housing Tribunals shall apply the

Regulations made under section 56 and where there is
inadequacy in those Regulations it shall apply the Civil
Procedure Code.”

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 There is no lacunae regarding the award of costs in proceedings

before the Tribunal. Regulation 21 of G.N. No. 174 provides that “the

tribunal may make such orders as to costs in respect of the case as it

deems just.” unlike section 30 (2) of the Code which requires reasons to

be given for refusal of costs, the Regulations does not mandate the

Chairman to state reasons for refusal of costs.

That notwithstanding, it is my considered view that when costs are

played for, the Chairman of the tribunal is required to state reasons in

case it deems fit not to grant the same. I have two reasons; one, justice

needs not only to be done but also needs to be seen done. By stating the

reasons, a winning party who was denied costs will clearly understand the

reasons why the same was not granted. Two, the court/tribunal is duty-

bound to determine every issue raised before it. Therefore, when a party

prays for costs, justice requires the issue of cost to be determined by

giving reasons for the decision.

My brother Mlyambina J. in the case of Bahati Moshi Masabile

T/A Ndono Filing Station Vs. Camel Oil (T), Civil Appeal No 216 of

2018 (unreported), on page 6 gave five rationales for stating reasons for

the decision reached; One, reasons make litigants to know the extent of

how their arguments have been understood and analyzed by the Court.

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Two, reasons foster judicial accountability by minimizing arbitrariness.

Three, reasons facilitate certainty in law by assisting members of the

legal fraternity and the general public to know how cases of a similar

nature may be decided. Four, reasons are the basis for the appellate

court to know if the decision was with apparent error. Five, reasons make

litigants know the Magistrate or Judge's basis of the decision. Therefore,

I agree with the appellant that, the trial tribunal erred not to state reasons

for denying the appellant costs.

I understand the settled principle that this court cannot interfere

with the exercise of discretion by lower court/tribunal unless it is satisfied

that the decision by lower court was wrong because it has misdirected

itself or because it has acted on matters on which it should not have acted

or because it has failed to take consideration matters which it should have

taken into consideration and in doing so arrived at a wrong decision as

stated in the case of Mbogo and another Vs. Shah [1968] EA 93 at

page 94. Therefore, I will determine whether the Tribunal has failed to

take consideration matters that it should have taken into consideration in

the award of cost.

In the case of Francis Nyamiti Vs. Bagagi Bomani, Land Appeal

No. 14 of 2022 (HC-Tabora, unreported), factors to be considered to grant

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or reject costs were outlined; one, mistakes occasioned by unfocussed

legal advice to a party; two, unintended mistakes of parties; three, time

and resources spent in the matter by the opposite party; four,

illegalities/irregularities raised by the court.

Moreover, in some cases, costs are not awarded unless there are

exceptional circumstances to award the same. For instance, where the

case was filed under forma pauperis, matrimonial cases that involve

division of matrimonial properties and probate cases. See the case of

Bahati Moshi Masabile T/A Ndono Filing Station Vs. Camel Oil (T)

(supra) and John Kashekya Vs. Attorney General, Civil Application

No. 480/03 of 2018 (CAT-unreported).

In the instant matter, as correctly submitted for the appellant the

matter was filed on 13.1.2021 it proceeded up to the stage of hearing the

3rd witness of the respondent. The appellant engaged an advocate to

represent him. He also filed a Written Statement of Defense. Further, the

counsel for the respondent was negligent by failing to give a proper

description of the suit. In my view, the appellant was entitled to be

compensated for the costs reasonably incurred in prosecuting Land Case

No. 224 of 2021. The fact that the respondent has filed a new case cannot

be used to deny the appellant costs incurred in the previous withdrawn

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case as the previous costs cannot be used to prosecute/defend the

subsequent case.

In the upshot, I find merit in this appeal. The appellant is awarded

the costs of the trial tribunal and of this court. It is so ordered.

Right of appeal is fully explained to the parties.

DATED at MWANZA this 18th day of March 2024.

W. M. CHUMA
JUDGE

Judgment delivered in court before the appellant in person and

respondent in person in absence of their advocates this 18th day of

March, 2024.

W. M. CHUMA
JUDGE

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