20081008 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZ~NIA {LAND DIVISION) AT DAR ES SALAAM · LAND CASE N0.115 OF 2006 FLAVIAN KAIZA .......................................................... PLAINTIFF VERSUS CHIEF EXECUTIVE OFFICER , TANZANIA BUILDING AGENCY .................................... DEFENDANT \. . "· , ~,. j RULING Longway, l. This ruling is on a preliminary point of law raised by the defence that the suit was misconceived and bad in law for lack of cause of action also that the suit was incompetent for contravening Order 1 Rule 9 of the Civil Procedure Code (Cap 30 RE 2002). On the first date of hearing the preliminary objection on the 8/06/2007,.the co.l,msel for the plaintiff was absent due to a bereavement in Bukoba. ihe plaintiff appeared in person so he was aware of the adjourned :), process to the 27th July, 2007. On this latter date the plaintiff and his ~------ counsel were absent, so, Mr. Mboya for the defendant prayed that the objections be argued by way of Written Submissions instead of an oral hearing that was intended. The schedule for filing Submissions was ordered thus: "Order: Written Submissions by 17 /8/07, Reply 24/8/07 and Rejoinder if any 31/8/07. Ruling on notice Signed Judge 27/7/07" I have perused the record very thoroughly and I have seen none of the Submissions scheduled to have been filed by the order of the 27/7/07, as being duly filed. That is neither the defendant objectors nor the plaintiff/respondent to the objections, have obeyed the order of the court of the 27/7 /07. The filing of submission has been held by courts, to be tantamount to a party appearing and prosecuting their case. In the instant matter the defendants had raised objections in their Written Statement of Defence which by failing to file their written Submission to argue the same as ordered, render their objections to be dismissed with costs, if there was no appearance and prosecution see the decision in Land Case No.250 of 2005 Hamisi Rajabu Musa Fujo (as the legal representative of the late Rajabu Musa Fujo) vs. Omar Ismail Abdi (unreported) by my learned brother Rugazia, J. which decision I associate myself with. Similar decisions exist on the issue but I was only able to access the above cited one. In the premises, the objection not having argued is dismissed with costs. .,,_•-· ·,,_. - .,,-. . M.~ay :,I,,- ! > ._ .. .. . :•, ~ JUDGE 8/10/08 2