CRDB Bank PLC and 2 Others versus Aziz Mohamed Aboud and Another; Misc Commercial Cause No 277 of 2015: High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).
- Civil Procedure
- Costs – One point of Preliminary objection is withdrawn- whether the other party is entitled to costs.
- Applications – withdrawal of application without applying for leave to refile – whether provisions that bar re-institutions of suits withdrawn without leave to refile are applicable to applications.
Held:-
(i) When one or more points of preliminary objection are withdrawn, the other party is entitled to costs as he must have incurred costs in the course of preparations. As the old adage goes; ‘a lawyer’s time and advice are his stock in trade.’ So when he spends time he is entitled to costs.
(ii) A party who withdraws a suit without first securing leave to institute a fresh suit thereby bars himself from instituting a fresh suit. The Court’s discretion to grant leave to institute a fresh suit as envisaged under Order XXIII Rule 1(2) can only be exercised at the time when the withdrawal order is made and not thereafter. This position is applicable to suits as well as applications. (Cited Jennings Bramly v. A and F Contractors Ltd and Another [2003] 2 E.A 452 and East African Development Bank v. Blue Line Enterprises Ltd, Misc Civil Cause No 177 of 2007).