MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL REFERENCE NO. 14982 OF 2024 (Arising from the Ruling of the District Court of Temeke (Hon. Kihawa RM) in Misc. Civil Application No. 51 of 2018, dated 16th April 2019) ______________________ GRATIAN MAGANA……………………………..….……………...APPLICANT VERSUS CAMILIUS NEUREY………………………………..……….1ST RESPONDENT CORNELIA ISMAHILI (administrator of the estate of the late Titus /Africana Ngoitanile)………………………2ND RESPONDENT STEVEN MSAKI …………………….………………..……..3RD RESPONDENT SAMWEL JITABO…………….……………………..………4TH RESPONDENT RULING Date of last Order: 25th March 2025 Date of Ruling: 26th March 2025 MTEMBWA, J.: According to the Chamber Summons, this Court is called upon to examine the propriety, correctness, and legality of the ruling and orders of the District Court of Temeke in Misc. Civil Application No. 51 of 2018, dated 16th April 2019, before Hon. Kihawa RM, the taxing master. Having done that, this Court be pleased to vary, quash and set aside the same on the ground that the bill of the cost was time-barred. Alternatively, this 1 Court would be pleased to resolve that the taxed amount of Tanzania Shillings 5,500,000/= is unlawful, unjustified, and contrary to the import of GN. No. 263 of 2015, as it was charged twice. Briefly, the parties herein batted in the District Court of Temeke in Civil Case No. 116 of 2013, where the same ended in the Applicant’s favor before Hon.Tarimo, SRM. Dissatisfied, the Respondents successfully appealed to this Court in Civil Appeal No. 13 of 2016, where the costs on appeal and of the Court below were awarded. Consequently, the Respondents filed a Bill of Costs before the trial Court in Civil Application No. 51 of 2019, where Tanzanian Shillings 6,500,000/= was awarded. The records reveal further that the Applicant herein happened to file an Application of this nature before this Court in Civil Application No. 280 of 2020, which was, however, withdrawn with leave to refile before Hon. Masabo, J on 2nd November 2021. When this matter came for orders on 4th February 2025, Mr. Erick Mhimba, the learned counsel, represented the first, third and fourth Respondents while holding briefs for Mr. Venance Victor for the Applicant. When prompted, Mr. Mhimba implored this Court to allow the 2 parties to argue this Application by way of written submissions. As a result, this Court ordered as follows; 1. The Application shall be heard by way of written submissions exparte against the 2nd Respondent. 2. The Applicant to file the submissions in chief by 18/02/2025. 3. The first, third, and fourth Respondents to file the reply submission by 4/03/2025. 4. Rejoinder be filed on 11/03/2025. 5. Ruling on 25/03/2025. When I was preparing this ruling, I noticed that the Applicant's counsel never complied with the order; he never filed the written submissions in chief electronically, although he had caused the hard copy of it to be served to the Respondents. As such, I failed to prepare the Ruling. On 25th March 2025, when the matter came for Ruling, the Applicant, first, third, and fourth Respondents appeared in person. Mr. Venance and Mr. Mhimba were not around. When prompted, the Applicant arguably insisted that the written submissions in chief were filed electronically in compliance with the Court’s order dated 4th February 2025. Having not been able to comprehend with the electronic records (eCMS system), I adjourned the matter so he could present the evidence. 3 On 25th March 2025, Mr. Venance Victor appeared for the Applicant while holding briefs for Mr. Erick Mhimba for the first, third, and fourth Respondents. Addressing the Court on such inability, the learned counsel had nothing substantial rather than insisting that the submissions in chief and a rejoinder thereof were filed electronically as per the Court’s order dated 4th February 2025. Earlier on, the payment receipt presented by the Applicant as the evidence of filing the submissions in chief had nothing to do with the present Application. According to the accounts section of the High Court, Dar es Salaam Zone, the case reference number differed from the one on the records. Having compared the two case reference numbers, I am satisfied that the Applicant blatantly and in a disregarding manner failed to comply with the order of this Court even if he could serve the hard copy of the submissions in chief to the Respondents. Had it been filed electronically, it could have been part of the electronic file. Advisably, it must be noted that the Court orders should not be lightly ignored or disregarded by the parties, otherwise, there would be no meaning in having them. They should not be cosmetically construed when issued by the competent officer or authority, thereby reducing them to nothing. Courts also should not easily and lightly accept excuses from 4 parties for not observing court orders, otherwise, it will be challenging and difficult to attain public confidence, which is the basis of peace and tranquility in our society. If I can borrow a leaf from Zaina H. Lyelu vs Basola Lumato & Another (De), Civil Case No. 8 of 2009; Now, what is the effect of a court order that carries instructions which are to be carried out within a predetermined period? Obviously, such an order is binding. Court orders are made in order to be implemented; they must be obeyed. If orders made by courts are disregarded or if they are ignored, the system of justice will grind to a halt or if will be so chaotic that everyone will decide to do only that which is conversant to them. Now, back to the Application at hand, the issue would be what would be the proper recourse to be taken by this Court considering the circumstances. It has been held time without numbers that failure to file written submissions is equivalent to non-appearance when the matter is scheduled for hearing. Therefore, the consequences of failure to file written submissions are similar to failure to appear and prosecute or defend the matter. This position also was underscored in the case of Hidaya Zuberi vs. Bongwe Mbana, PC Civil Appeal No. 98 of 2003, where it was observed that; 5 The practice of filing submission is equivalent to schedule for hearing, Therefore, failure to file submission as ordered is equivalent to non-appearance at a hearing or want of prosecution. The attendant's consequence of failure to file written submission are similar to those of failure to appear and prosecute or defend as the case may Since I have already resolved that the Applicant failed to file the written submissions in compliance with the Court’s order, it follows that it is as good as he never appeared on the day scheduled for hearing. The available remedy, therefore, is to dismiss the Application for want of prosecution. In the upshot, this Application is dismissed for want of prosecution. Considering the circumstances, there will be no order regarding costs. It is so ordered. Right of appeal explained. DATED at DAR ES SALAAM this 26th March 2025. H.S. MTEMBWA JUDGE 6