bakari rashidi mtipa vs hadija hamisi lulanje 2023 tzhc 23899 27 october 2023

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MTWARA AT MTWARA PC CIVIL APPEAL NO. 1 OF 2023 (Originating from Matrimonial Case No. 36 of 2022 at Tandahimba Primary Court and arising from Matrimonial Appeal No. 10/2022 at Tandahimba District Court) Bakari Rashidi Mtipa................. . .........-.......... -............... APPELLANT VERSUS Hqdija Hamisi Lulahje .................... -....... - — RESPONDENT JUDGEMENT Date of last Order: 23.08.2023 Date of Judgment: 27.10.2023 Ebrahim, J. This is a second appeal. The appellant BAKARI RASHIDI MTIPA challenged the judgment of the District Court of Tandahimba, at Tandahimba in Matrimonial Appeal No. "0 of 2022 dated 22nd February, 2023. The matter arose from Matrimonial Case No. 36 of 2022 at the Primary Court of Tandahimba District, at Tandahimba. The brief background of this matter goes thus; the appellant and the respondent were husband and wife haying contracted an Islamic marriage in 2008. They were blessed with one issue Rashidi Page 1 of 4 Bdkari aged TO years. The couple were living in Mafia. It was year 2013 when they decided to come back to Mtwara. They purchased a plot in Tandahimba and another one at Nambahu. The Appellant married another wife and that was when their marriage hit the rock bottom. The Appellant divorced the Respondent on 03.01.2020. In July, 2022, the Respondent filed for decree of divorce, distribution of matrimonial properties and maintenance of their issue. After hearing both sides, the Primary Court found the marriage to have been irreparably broken and distributed the properties accordingly. The Appellant was aggrieved with the decision and unsuccessfully appealed to the District Court on the ground that the Primary court erred by reaching to decision that all the properties were matrimonial assets subject to division. Aggrieved again by the District Court decision, the appellant preferred the instant appeal raising five grounds of appeal complaining mainly that the Respondent did not prove her extent of contribution and that some of the properties were not matrimonial properties. Page 2 of 4 On 19.07.2023, both parties appeared before the court for bearing of the appeal. The court ordered the appeal to be argued by way of written submission and set a schedule thereof and fixed a mention dale Io be on 23.08.2023 with a view of setting a date of judgement should all things be equal. On 23.08.2023 both parties appeared but the Appellant did not tell the court why he has not filed his submission nor did he pray for extension of time. To date, there is no any submission filed by the Appellant for the Respondent to reply. The question now comes, what next? The position of the law is settled that failure to file written submissions when ordered to do so by the court constitutes a waiver of the party's right to be heard and prosecute his matter. In a case where the none adherence of court order is on the part of the Appellant, the consequence is to dismiss the case for want of prosecution. This position was well articulated by the Court of Appeal of Tanzania in the case of National Insurance Corporation of (T) Ltd & Another v Shengend Ltd, Civil Application No. 20 of 2007 (unreported) where the Court among others held that the Court could hot be made impotent by the applicant’s inaction to file submission on the Page 3 of 4 scheduled date which amounts to failure to prosecute one's case. The same stance was taken by this Court in P.3525 LTCOL Idahya Maganga Gregory v. Judge Advocate General, Court Martial Criminal Appeal No. 2 of 2002 (unreported). Filing written submissions is equal to attending a hearing of the case. Thus, failure to file the submissions as ordered is equivalent to failure to appear and prosecute or defend, as the case may be - See the case of Tanzania Harbours Authority v Mohamed R. Mohamed [2002] TLR 76. That being the position therefore, the consequence following the failure to file the submission by the Appellant which would ultimately require the Respondent to file her response, is the dismissal of the present appeal for want of prosecution. As I hereby do. Given the relationship of parties that it is a matrimonial matter, I give no order as to costs. Each party to bear its own. Page 4 of 4