ABDALLAH HAMIS 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO.23077 OF 2024 ABDALLAH KHAMIS RASHID.………………..………..APPLICANT

VERSUS LEONARD REED……………..….……………….…….1ST RESPONDENT M/S AFRICAN COMPANY LIMITED.……...……….2ND RESPONDENT ALEX MSAMA MWITA………….……………………..3RD RESPONDENT JOYCE ANDREW MPAPASINGO…………………….4TH RESPONDENT

RULING 10th April, 2025 L.HEMED,J Previously, there was Land Case No.60 of 2019 which was instituted in this court between the herein parties. The said case was decided on 28th March 2022 before Hon. Opiyo,J. It appears that the Applicant got aggrieved by the said decision however, he could not take an action timely. On 22nd November, 2024 the Applicant presented the instant application made under section 11 of the Appellate Jurisdiction Act Cap.358 seeking for the following orders: 1 “a. The extension of time to the Applicant to file a Notice of Appeal so as set in motion the appeal process against the Judgment and Decree of the High Court of Tanzania, Land Division, Opiyo J., dated 28th March, 2022 in Land Case No. 60 of 2019 in the Court of Appeal of Tanzania; b. Costs be provided; and c. Any other Order or relief(s) that this Court of Justice may deem just and fair to grant.” The application was supported by the affidavit of the Applicant and resisted by the respondents. The matter was called on the 17th day of February 2025 for necessary orders. On that day, the Applicant was represented by Mr. Walter Godlucky, learned advocate. The 1st and the 2nd respondents appeared through Ms. Rehema Mghweno, learned counsel while the 3rd Respondent enjoyed the legal service of Mr. Augustino Kusalika, learned advocate. Among the orders which was made by this court was on the mode of

hearing of the application. The court directed hearing to be by way of written submissions as follows: - • Submissions in chief on or before 17th March 2025; • Reply submissions on or before 1st April, 2025 2 • Rejoinder if any by 9th April 2025 According to the orders of the particular date, the matter was scheduled to be called for mention today, that is on 10th April 2025 at 10:00AM in order to ascertain if the submissions are complete and for fixing the ruling date. The matter has been called today at 11:00AM but the Applicant and or his advocate could not enter appearance without notice to the court. The 1st and 2nd respondents appeared through Ms. Rehema Mghweno, learned advocate while Mr.Selemani Matauka, learned appeared for the 3rd Respondent while holding brief of Mr. Augustino Kusalika, learned counsel with instructions to proceed. The learned counsel for the respondents reported to have not been served with submissions in chief. The prayed for the dismissal of the entire application for want of prosecution. It should be noted that the matter was scheduled to come today for purposes of ascertaining if submissions are complete and to fix the date for ruling date. As aforesaid, the counsel for the respondents have reported not to have been served with the submissions in chief to enable them to file reply submissions. This has prompted me to go through the file to

satisfy myself 3 as to whether submissions in chief have been filed by the Applicant as per the directives of the court. My perusal of records could not find any submissions being filed by any party, the plaintiff inclusively. The Applicant was obliged to appear today to help the court in ascertaining if submissions are complete. His absence waives the right to address the court about the status of his submission and he as well, loses the right to show cause as to why he has not filed it. The absence of the Applicant and his advocate without notice, justifies the court to draw an inference that the Applicant has not filed his submission in chief and that there in no good cause for failure so to do. It should be noted that written submissions are a substitute for oral hearing of the matter. A party who fails to present submissions pursuant to the filing schedule directed by the court is considered as if he has defaulted appearance on the hearing date. This position has been held in plethora of decisions of the Court of Appeal of Tanzania and the High Court. One of those decisions is found in the case of Harold Maleko v. Hary Mwasanjala, Civil Appeal No.16 of 2000 where the CAT emphatically held 4 that the failure to file written submission on the time prescribed by the court order is inexcusable and amounts to failure to prosecute the matter. In another case of Godfrey Chawe v.

Nathaniel K.Chawe, Misc. Civil Application No. 22 of 1998 it was held thus: - “…Failure to file the written arguments on the part of the learned counsel for the applicant is an omission which constitutes want of prosecution.” The above position was also taken in OLAM(T)Ltd vs Hawa Kwilabya, Civil Appeal No. 17 of 1999 and in Andrea Numba v. Trezia Mwigombane, Civil Appeal No.1 of 2006 that failure to file submissions is as good as failure to enter appearance on the hearing date. This means that if the Appellant/Applicant as the case may be, fails to present his/her submissions as directed by the court then the impact will be to dismiss the entire matter for want of prosecution just as the same would have been done on the hearing of the matter in case of non-appearance of the Applicant/ Appellant. In case, it is the Respondent who defaults to file reply submissions, the court will always proceed to determine the matter based on the submissions presented by the Applicant/Appellant as it would proceed 5 to determine the matter exparte when the respondent fails to enter appearance. In the instant case, it is the Applicant who has defaulted to file submissions. In that regard, I have no option other than to consider the Applicant to have failed to prosecute his application. I do hereby dismiss the entire application with costs for want of prosecution. Order accordingly. DATED at DAR ES SALAAM this 10th April, 2025. L.HEMED

JUDGE 6