MONTIMONTAZA v D.B SHAPRIYA & CO. LTD 1987 TLR 42 (CA)

 MONTIMONTAZA v D.B SHAPRIYA & CO. LTD 1987 TLR 42 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JJA, Kisanga JJA and Omar JJA

29 July 1987

Flynote

Civil Practice and Procedure - Costs - Whether payable on with-drawal of appeal in civil matters - Rules 95 and 95(4) of Court of Appeal Rules.

Court of Appeal Rules - Costs - Whether payable on withdrawal of appeals in civil matters - Rules 95 Court of Appeal Rules.

-Headnote

On the day set down for the hearing of this appeal, 19th June, 1987, advocate for the appellant informed the court his client's intention to withdraw the appeal. The withdrawal prompted the respondent's advocate to pray for his costs but the application was resisted by the appellant's advocate submitting that under Rule 95(4) no costs are H payable.

Case Information

Appeal dismissed with costs.

No case referred to:

Mkate, for appellant

Lakha, for respondent

Judgment

Makame, Kisanga and Omar, JJ.A: On the day set down for the hearing or this appeal, 19th June 1987, Mr. Mkate for the appellant informed the Court that his client did not wish to prosecute the appeal. Mr. Lakha prayed for his costs which Mr. Mkatte resisted, submitting that under Rule 95(4) of the Court of Appeal Rules no costs are payable. We rather think that the intention was to say that the costs are not payable except under sub-rule (4).

Withdrawal of appeals in civil matters is governed by Rule 95. Mr. Mkate duly complied with Rule 95(1) when, on 10th June 1987, he lodged his written Notice indicating his client's intention not to prosecute the appeal. On the Written Notice Mr. Mkate indicated that M/s Lakha & Company would be served with a copy of the Notice. We are not told whether or not they were in fact served. What we are told is that Mr. Lakha orally consented to the withdrawal. It is clear that Mr. Lakha's written consent, in terms of subrule (3), was not obtained. If Mr. Mkate had so obtained Mr. Lakha's consent, the appeal would have been struck out of the list of pending appeals. This would have been without costs, or, as is often the case, upon terms agreed upon by the parties as to costs, as contained in the consent document.

In the present matter the situation is therefore governed by sub-rule (4), so that the appeal shall stand dismissed with costs unless we order otherwise. We could only order otherwise if the appellant had applied to us within fourteen days after the lodging of the notice of the withdrawal, in this case any time between 10th June and the day appointed for the hearing of the appeal. This was not done, and in any event we are not inclined to deny the respondent his costs.

Accordingly we dismiss the appeal with costs.

1987 TLR p44