Court name
Court of Appeal of Tanzania

Montimontaza vs D.B Shapriya & Co. Ltd () [1987] TZCA 5 (29 July 1987);

Law report citations
1987 TLR 42 (TZCA)
Media neutral citation
[1987] TZCA 5

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 B 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 C 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 D 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. E 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 F 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.
G   Accordingly we dismiss the appeal with costs.

A