JUMA MAKIYA v HAMISI MOHAMED 1984 TLR 53 (HC)

JUMA MAKIYA v HAMISI MOHAMED 1984 TLR 53 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

November 27, 1985

CIVIL APPEAL 34 of 1984

Flynote

B Civil Practice and Procedure - Primary Courts Civil Procedure Rules, G.N. No.

310/64 rule 16(1) - Whether withdrawal of suit is conclusive evidence of liability in a

claim for compensation.

Civil Practice Procedure - Primary Courts Civil Procedure Rules - Whether in a claim

for costs, the claimant C must adduce evidence to prove the alleged expenses.

Civil Practice and Procedure - Primary Courts Civil Procedure Rules - Whether Court

proceedings are an inconvenience for which damages are recoverable.

-Headnote

D The appellant sued the respondent in a suit for recovery of a piece of land. He

later withdrew the claim when proceedings at Singida Urban Primary Court were at

an advanced stage. The court made no consequential orders. The respondent then

sued the appellant for a sum of 8,214/- being E compensation for lost crops and

expenses consequential to the said suit. The court awarded the respondent 600/- for

witnesses expenses and 400/- for "inconvenience". It rejected the rest of the claim.

The appellant unsuccessfully appealed to the District Court, hence brought this

second appeal.

F Held: (i)Under rule 16(1) of the Primary Courts Civil Procedure rules, G.N. No.

310/64, a claimant may at any time withdraw a proceeding or abandon part of his

claim and in doing so he would not ipso facto incur liability;

G (ii) the courts below ought not have addressed themselves to the withdrawal of

the suit rather than the truth and availability of respondent's claim;

(iii) this having been a claim for costs it was necessary to prove it with

documentary or reliable oral evidence without which there was no basis for the

award;

H (iv) compensation for "inconvenience" of attending court implies that court

proceedings are an inconvenience for which damages are recoverable, a view which

should not be subscribed to.

Case Information

I Appeal allowed.

No cases referred to.

1984 TLR p54

LUGAKINGIRA J

[zJDz]Judgment

Lugakingira, J.: In Civil Case No. 86/82 of the Urban Primary Court at Singida the

appellant Juma A Makiya sued the respondent and two others to recover a piece of

land. At an advanced stage of the proceeding the appellant withdrew the suit and it

was so marked but without consequential orders. The respondent then commenced

the present proceedings claiming in all 8,214/- as compensation for B lost crops and

expenses incurred in consequence of the said suit. The trial court awarded him 600/-

for witness expenses and 400/- for "inconvenience" and rejected the rest of the claim.

The decision was upheld by the District Court and this is the second appeal. C

The problem with the courts below was simple. They addressed themselves to the

withdrawal of the suit rather than the truth and availability of the respondent's claim.

Under rule 16(1) of the Primary Courts Civil Procedure Rules, G.N. No. 310/64, a

claimant may at any time withdraw a proceeding or D abandon part of his claim and

in doing so he would not ipso facto incur liability. The respondent had, therefore, to

establish his claim. I note that he claimed 600/- for three witnesses for four days but

there was no scintilla of evidence in support of that expenditure. The respondent's

witness Haji Lesso, the only witness who testified in both suits, never alluded to any

expenditure. But this E having been a claim for costs it was necessary to prove it

with documentary or reliable oral evidence. There was no such evidence and,

therefore, there was no basis for the award. It was unsafe to act on the respondent's

bare assertion for that could have been anything. I then found it interesting that the

respondent was also compensated for the "inconvenience" of attending court. This

implies that F court proceedings are an inconvenience for which damages are

recoverable. I do not subscribe to that view.

The appeal is allowed with costs, the decisions of the lower courts being set aside. G

Appeal allowed. H

1984 TLR p55

A