brighton mponji administrator of the estate of the late theodora mashayo vs simon paulo 2021 tzhclandd 6802 13 december 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 708 OF 2020 (Arising from Misc. Land Application No. Misc. Land Application No. 615 of 2018 before Hon. Mango, J originating from Land Appeal No. Ill of 2016) BRIGHTON MPONJI (Administrator of the estate of the late THEODORA MASHEYO............................................................ APPLICANT VERSUS SIMON PAULO....................................................................... RESPONDENT RULING Date of last order: 10.12.2021 Date of Ruling 13.12.2021 A.Z.MGEYEKWA, J The application for consideration is for leave to appeal to the Court of Appeal of Tanzania against the ruling and order of this court dated 30th September, 2014. This application is brought under section 47 (1) of the Land Dispute Court Act, Cap. 216 [R.E. 2019], section 68 (e) and section 95 of the Civil Procedure Code Cap.33 [R.E 2019] AND section 5 (1) (c) 1 of the Appellate Jurisdiction Act, Cap. 141 [R.E, 2019]. The application is supported by an affidavit deponed by Mr. Theodora Masheyo, the applicant. The respondent feverishly opposed the application. In a counter-affidavit sworn by Mr. Simon Paulo, the respondent. When the matter came up for hearing on 23rd November, 2021, the Court acceded to the parties' proposal to have the matter disposed of by way of written submissions. Pursuant thereto, the applicant filed his written submission as per the court order, however, nothing has been filed by the respondent, to-date, and no word has been heard from him on the reason for the inability to conform to the court schedule. This being the position, the question that follows is: what is the next course of action? The settled position is that failure to file written submissions, when ordered to do so, constitutes a waiver of the party's right to be heard and prosecute his matter. Where the inability is on the part of the respondent, the consequence is to order that the matter be heard ex-parte. This position is consistent with the Court of Appeal of Tanzania holding in the case of National Insurance Corporation of (T) Ltd & Another v Shengena Ltd, Civil Application No. 20 of 2007 at DSM (unreported), it was held that: 2 The applicant did not file submission on the due date as ordered. Naturally, the Court could not be made impotent by the party's inaction. It had to act. ... it is trite law that failure to file submission(s) is tantamount to failure to prosecute one's case." The stance taken in the above-cited case is consistent with an earlier position, 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 are tantamount to a hearing and; therefore, failure to file the submission as ordered is equivalent to non-appearance at a hearing or want of prosecution. The attendant consequence of failure to file written submissions is similar to those of failure to appear and prosecute or defend, as the case may be. Similar, in the case of Tanzania Harbours Authority v Mohamed R. Mohamed [2002] TLR 76; Patson Matonya v Registrar Industrial CourtofTanzania & Another, Civil Application No. 90 of 2011 and Geofrey Kimbe v Peter Ngonyani, Civil Appeal No. 41 of 2014 (both unreported). In consequence of the foregoing, it is ordered that the matters be determined ex-parte, by considering the application based on the submission filed by the applicant. Supporting his application, the applicant urged this court to adopt his 3 affidavit to form part of his submission. The applicant was brief and straight to the point. He submitted that he is praying for leave to appeal against the decision of Hon. Mgetta, J in Land Appeal No. 111 of 2012 based on section 5 (1) of the Appellate Jurisdiction Act, Cap.141 [R.E 2019]. He submitted that his intention to appeal is based on the following grounds; that the second appellate court erred in law for holding that the appellants’ agreement for sale does not disclose the size and location of the land and also it does not bear participation of local authorities. And that the second appellate court erred in law for not weighing and giving clear and sound reason for his decision. The applicant further submitted that the apart from the said agreement having an addendum that clearly provided for the map of the said disputed land, it shows the boundaries of the piece of land and the neighbors on all sides. It was his view that the raised grounds are good grounds for the audience before the Court of Appeal of Tanzania. On the strength of the above submission, the appellant beckoned upon this court to grant his prayers sought. It is trite law that leave can be granted by this court if the applicant's shows that there are legal and factual issues for determination by the 4 Court of Appeal of Tanzania on that basis he cited the case of Said Ramadhani Muyanga v Abdallah Saleh [1996] TLR 75 where it was held that for leave to be granted there must be a contentious issue of law. Having unfleetingly reviewed the depositions in the affidavit sworn on 08th October, 2020, specifically on paragraphs 13 (a), (b), and (c) the applicant averred that there are three points of law that attracts the attention of the Court of Appeal of Tanzania to determine the impugned decision of this court. The said points of law are as follows: - a) Whether the second appellate court erred in law for holding that the appellants3 agreement for sale does not disclose the size, location of the land and does not involve the local authorities. b) Whether the second appellate court erred in law for not weighing and giving clear and sound reason for his decision. Issues such as the agreement of sale and map showing the location of the disputed land and the boundaries is an issue of general importance and raises a prima facie case. Further, I have considered the applicant's affidavit particylaly paragraphs 8, 9 and 10, the applicant has shown his interest to appeal and believe that he has strong grounds to attract the attention of the Court of Appeal of 5 Tanzania. Thus, I am convinced that this case fits in the mould of cases for which there is a triable issue that attracts the attention of the Court of Appeal of Tanzania. Circumstances of this case reveal sufficient reasons capable of exercising the Court's discretion and grant leave to appeal to the Court of Appeal of Tanzania. In consequence, this application succeeds. The applicant is granted leave to appeal to the Court of Appeal of Tanzania without costs. Order accordingly. Dated at Daf.es Salaam on this 13th December, 2021. /L*\\ a.z.mgeIekwa JUDGE 13.12.2021 Ruling delivered on 13th December, 2021 in the presence of both parties. A.Z.MGEYEKWA JUDGE 13.12.2021 6