EMMANUEL BATEMI VS TAINPIN RULING Failure to file submission

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB REGISTRY OF SHINYANGA AT SHINYANGA CIVIL REVIEW No. 7339 OF 2024 (Arising from the order and Ruling of this court (R.B Massam, J) dated 1st day of March 2024 in the Civil Revision No. 954 of 2024 originating from order and ruling of the Resident Magistrate’s court of Shinyanga (Zahoro, RM) in Miscellaneous Civil Application No.05 of 2023) BETWEEN 1. EMMANUEL BATEMI 2. LEONARD S. MNZAVA 3. MBOGWE MALIMI 4. NZOKA MALALE 5. BARAKA KULWA MGEMA 6. ANNA MADATA 7. PASCHAL KAZUNGU 8. BHIA KAJI 9. JOYCE EMMANUEL 10.PAUL MSAKI 11. MANGU LUSINGI 12. MATHIAS JOHN …………………….APPLICANTS 13. MZUNGU JEREMIA 14. JOLIO MANG’OSSA 15. MONDETA JOHN 16. KULWA LUPUNJA 17. ALEX P. BUNDALA 18. MBOYI NAILOANI 19. LIMBE NGEMA 20. KIBIHA MASANJA 21. TAMBUKA MASARE 22. SIMINZILE MIGUTA 23. NICHOLAUS PETER VERSUS 1. TAINPIN COMPANY LIMITED 2. TUSHIKAMANE GOLDMINNE GROUP 3. JOHN KIDIMI ……. RESPONDENTS 4. TAB LUKANDA 1 5. ALFRED KHAN OBAMA 6. MASINDI MABULA RULING 20th August & 13th September, 2024 Massam, J: - The applicants having been partly aggrieved by the decision of this Honourable Court (R.B Massam, J) in Civil Revision No. 954 of 2024) where by this court did not award costs to the applicants after having ruled in favour of the latter hereby partly apply for Review of such order and ruling to this Honourable Court on the following ground(s) namely; - 1. That, this Honourable court grossly erred in law and fact by failure to award costs to the applicants in civil revision No 954 of 2024 without giving any reason(s) thereto. This suit was heard ex-parte due to the fact that the respondent did not appear despite of many summonses which this court issued through applicant to serve him but he was nowhere to be found. Later the plaintiff with order of the court succeeded to summon them by way of substituted service through Mwananchi Newspaper dated on 18th July, 2024. At the hearing of this case, the applicants were represented by Mr Kaunda Advocate, however on the same date Mr Ijan Augustino 2 Advocate holding brief of Mr Kaunda Advocate while the respondent as I have said was absent without any notice or excuse after having been dully served as explained earlier. Mr Ijan Augustino Advocate prayed to argue this matter by the way of written submission, the prayers were granted and the court scheduled the dates for filing written submission as follows: -The applicants was to file submission in chief on or before 2nd September 2024 and ruling on 13th September 2024. Applicants failed to comply with orders of the court and ought to file the submission on or before 2nd September 2024 till to date no submission has been filed. In the case of Famari Investment T. Ltd vs Abdallah Selemani Komba (Misc. Civil Application 41 of 2018) HC Mbeya pg. 3-4, the court held that; - ‘’A failure to file written submission as ordered by court is manifestation of failure to prosecute the case of which its outcome is to dismiss the appeal ‘’ This court is aware that non-compliance of the applicants to the court order of filing the written submission is as good as non- appearance when the matter fixed for hearing. It was the wisdom of the 3 Court of Appeal of Tanzania in the case of Godfrey Kimbe v. Peter Ngonyani, Civil Appeal No. 41 of 2014 at page 3 that: ‘’We are taking this course because failure to lodge written submission after being so ordered by the Court, is tantamount to failure to prosecute or defend one's case.’’ The same position was underscored in the case of Abisai Damson Kidumba v. Anna N. Chamungu and 3 Others, Miscellaneous Land Application No. 43 of 2020 District Registry of Mbeya at Mbeya (unreported), in which the Court observed: ‘’...The law is settled to the effect that a case shall face dismissal for want of prosecution if a party fails to file his written submission on the date fixed by the Court... Consequently, under the circumstances, I dismiss the applicant's application with costs for want of prosecution.’’ Again, the effect of non-compliance with the court’s order of filling written submissions was earlier on stated in the case of NIC of Tanzania and Consolidated Holding Corporation v. Shengana Ltd, Civil Application No. 20 of 2007 (unreported), the Court of Appeal of Tanzania at Dar es Salaam, whereby it was held;- 4 ‘’ The 1st applicant did not file submissions on due date as ordered. Naturally the Court could not be made important by a party's inaction. It had to act and it is trite law that failure to file submissions is tantamount to failure to prosecute one's case. In this case the supporting submission was not in place, the Court’’. Notably, the same principle was also elaborated in the case of Harold Maleko v. Harry Mwasanjala, DC Civil Appeal No. 16 of 2000, HC-Mbeya (unreported) which held that:- “I hold therefore that the failure to file written submission inside the time prescribed by the court order was inexcusable and amounted to failure to prosecuted the appeal accordingly, the appeal is dismissed with costs’’. See also the case of Godfrey Chawe v. Nathaniel K. Chawe, Misc. Civil Application No 22 of 1998, Olam Tanzania Limited v Halawa Kwilabya, Dc Civil Appeal No 17 of 1999 and Patson Matonya v. The Registrar Industrial Court of Tanzania & Another, Civil Application No. 90 of 2011 (unreported). Now, coming to our present case this court made some orders as I elaborated it above but the applicants who prayed to dispose this suit by the way of written submission failed to follow the orders by filing 5 submission as scheduled. This court is in the view that failure to file submission on the dates scheduled by the court is as good as non- appearing on the fixed date for hearing and need not over emphasize. They also failed to seek indulgence of the court to extent the time if there was good reason for not adhering the court orders. This court is in view that the applicants lost interest to continue to prosecute their case. As, it has already been settled that a case shall face dismissal for want of prosecution if a party fails to file her written submission on the date fixed by the court as elaborated in P3525 LT Idahya Maganga Gregory v. The Judge Advocate General, Court Martial Criminal Appeal No. 2 of 2022 (unreported) the court held that ‘’It is now settled in our jurisprudence that the practice of filling written submission is tantamount to hearing and; therefore, failure to file the submission as ordered us equivalent to non-appearance at hearing or want of prosecution. The attendant consequences of failure to file written submission are similar to those of failure to appear and prosecute or defend, as the case may be. Court decision on the subject matter is bound ……. Similarly, courts have not been soft with the litigants who fail to 6 comply with courts orders, including to file written submission within the time framed ordered. Needless to state here that submission filed out of time and without leave of the court are not legally placed on records and are to be disregarded”. From the foregoing I dismiss this suit with costs for want of prosecution. It is so ordered. DATED at SHINYANGA this 13th day of September, 2024. R.B. Massam Judge 7