CMA. CGM (Tanzania) Limited versus Insignia Limited; Misc Commercial Application No 168 of 2016: High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).
- Civil Procedure
- Parties – joinder of defendants – under what circumstances a person may be joined as defendant under Order I Rule 10 (2) of the Civil Procedure Code?
- Costs – principles applicable in awarding costs.
- Legal Method
- Statutory interpretation – statute imported from India – whether relevant in Tanzania.
Held:-
(i) Since the Civil Procedure Code was imported from India, decisions from there on the provisions of the law which are in pari materia with ours are of paramount relevance. It is an elementary principle of statutory interpretation that similar statutes must be interpreted similarly.
(ii) Plaintiff is the dominus litis. He cannot be compelled to sue a person against whom he does not claim any relief. However, the theory of dominus litis, should not be overstretched in the matter of impleading parties, because it is the duty of the Court to ensure that if for deciding for the real matter in dispute a person is a necessary party, the court can order such person to be impleaded (quoted with approval from Mulla: The Code of Civil Procedure 18th Edition, 2011).
(iii) In the adversarial system of adjudication to which our country belongs, the position is that costs are awardable at the discretion of the court and the general rule is that an unsuccessful party must be condemned to pay costs in favour of the successful party. The principle can be gleaned in section 30(1) & (2) of the CPC. Where the court directs that any costs shall not follow the event, it shall state its reasons in writing.
(iv) 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. ( quoted with approval from Mulla: The Code of Civil Procedure, 12th edition at P. 150 and cited Hussein Janmohamed & sons v. Twentsche Overseas Trading Co Ltd (1967) 1 E.A 287 at P. 289 -90).