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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB - REGISTRY) AT MOROGORO LAND APPEAL NO. 13562 OF 2024 {Arising from the decision ofDistrict Land and Housing Tribunal for Morogoro in Land Application No. 54 of2021 before Hon. £ Mogasa, dated 20^^ April2024) EDSON BILIKUNDI AND 10 OTHERS APPELLANTS VERSUS THE REGISTERED TRUSTEES OF TANZANIA ASSEMBLIES OF GOD,JIMBO LA MOROGORO RESPONDENT JUDGMENT 06/08/2024 & 3.0/09/2024 KINYAKA, J.: In the District Land and Housing Tribunal for Morogoro hereinafter "the Tribunal", the respondent, the Registered Trustees of Tanzania Assemblies of God (TAG), JImbo la Morogoro, filed an action jointly and severally against the appellants for recovery of land measuring 29 acres located at Madaganya, Mindu Ward, within Morogoro Municipality hereinafter the "suit land". On that regard, she sought to be declared the lawful owner of the suit land; an order that the appellants be restrained from trespassing into the suit land, general damages for destruction of the respondent's properties to the tune of TZS 200,000,000; costs of the application; and any other reliefs that the Honourable Tribunal would have deemed appropriate in the circumstances. The Tribunal heard both parties and on 25^^ April 2024 it entered judgment against the appellants. It declared the respondent as the lawful owner of the suit land and made an order of permanent restraint against the appellants from trespassing the suit land or Interfering with the respondent's peaceful possession of the same. Furthermore, the costs of the suit were awarded to the respondent. Disgruntled, the appellants approached this Court vide the petition of appeal filed in this Court consisting of four grounds of complaints reproduced below: 1. That, the trial chairman erred in both law and fact by declaring the ownership of undescribed land which inter alia encompasses more than what was claimed by the respondent herein in the application; 2. That, the trial chairman erred in both law and fact by declaring the respondent the owner of the land in dispute despite the fact that the respondent herein failed to sue proper and necessary parties at the trial; 3. That, the trial chairman erred in both law and fact by declaring the respondent the owner of the land in dispute regardless the fact that the respondent failed to establish the cause of action against the appellants save for the first and fifth appellant herein; and 4. That, the trial chairman erred in both law and in fact by declaring the respondent herein the owner of the suit land without having good title for the same. At the hearing of the appeal, the appellants appeared in person and unrepresented while the respondent was represented by Ms. Charity W Mzinga, learned advocate. On 6'^ August, 2024, in the presence of both parties, the Court ordered the appeal to be disposed by way of written submissions. While the appellants' submission was fixed to be filed on or before 20"" August 2024, the respondents were to file their reply submissions thereto on or before September, 2024. The rejoinder submissions had to be filed on or before 10'*^ September, 2024. It is on record from both the physical case file and the electronic case management system that the appellants lodged their submission in support of the appeal on 23''* August, 2024. The appellants' noncompliance with the Court's scheduling orders was also noticed by the respondent who in her reply submission to the appellant's submission, cited the cases of National Insurance Corporation of (T) Ltd & another v. Shengena Limited, Civil Application No. 20 of 2007, Patson Matonya v. The Registrar Industrial Court of Tanzania & another. Civil Application No. 90 of 2011 (both unreported), and Director of Public Prosecutions v. Said Saleh Aliz, Criminal Appeal No. 476 of 2017, TZCA on page 18, and averred that the appellant's failure to file written submissions as ordered by the Court amount to non-appearance on the date of hearing whose remedy Is the dismissal of the appeal. In their rejoinder submissions, the appellant faulted the respondent for arguing that they received the submission late. But the appellant's submission in this respect was unfinished. However, the respondent did not respond on their failure to file their submissions in chief on time. As correctly submitted by Ms. Mzinga, it is now an established stance of law that failure to file written submissions has the samilar effect as to nonappearance on the date of hearing of one's case. See the case of Godfrey Kimbe v. Peter Ngonyani, Civil Appeal No. 41 of 2014 where on page 3 of its decision, the Court of Appeal held that: 'We are taking this course because faiiure to iodge written submission after being so ordered by the Court, is tantamount to faiiure to prosecute or defend one's case" In the present matter, it was the appellants who defaulted to appear before the Court when they were called to prosecute their case by filing written submissions in support of their appeal on the date scheduled by the court. The question that follows next is what is the consequences of such a default? Order XXXIX Rule 17(1) of the Civil Procedure Code, Cap. 33, R.E. 2019 provides an answer to the effect that: ''17(1) Where on the day fixed or on any other day to which the hearing may be adjourned, the appeiiant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. In view of the foregoing, I hereby dismiss the appellants' appeal for want of prosecution. Given the fact that the appeal has not been determined on its merit, I or each party bear its own costs. It is so ordered. DATED at MOROGORO this 30^ day of September 2024. court o H. A. KINYAKA ■y t. JUDGE > 30/09/2024 Court: Judgment is delivered in open court by F.Y. Mbeiwa, Deputy Registrar, this 30'^ September 2024 in the presence of the 4% 6'^, and appellants and Ms. Charity Mzinga for the Respondent. F.Y. MBELWA O -o DEPUTY REGISTRAR N-V. > N 30/09/2024 Right of Appeal fully explained F.Y. MBELWA DEPUTY REGISTRAR 30/09/2024