mnyeti

'1 * ' u IN THE HIGH COURT OF TANZANIA MOROGORO SUB-REGISTRY AT Tir MOROGORO CIVIL APPEAL NO. 23 OF 2023 (Arising out of Misc. Civil Appl. No. 05 of 2023 in the Resident Magistrate Court Morogoro at Morogoro.) appellant 3AMES MUSA MNYETI VERSUS RODRIGUES BARIKI MASI RESPONDENT JUDGEMENT 11™ JULY 2024 MANSOOR,3. On 29"" May, 2023, the appellant herein instituted Misc. Civil Application No. 05 of 2023 against the respondent at the Resident Magistrates Court of Morogoro herein "the trial court" claiming for the court to set aside the judgement issued exparte and aiiow him to file the written statement of defense so as he can defend his rights. > Page 1 of 5 J■ As gleaned from the trial court's judgment, after the conclusion of the hearing, the Court found no good cause to set aside the judgement and thus it dlsmisseci the application for lack of merit. Unamused with the decision of the Trial Court, the appellant has channeled to this court the following grounds of appeal as stated hereunder, 1. The trial magistrate erred in law and in fact by holding thatIwas served with summons and violating the principle ofiaws in relation to service of summons; 2. The trial magistrate erred in iaw and fact by failure to properly asses and evaluate evidence tendered for reasons for nonappearance of the appellant was due to sickness; 3. The trial magistrate erred In law and fact In denial of setting aside defaulting judgement herein basing on previous act of the appellant for nonappearance and extension of time to file written statement of defense; 4. The Trial Magistrate erredin law and fact by writing a judgement that is wrong in form and substance. Page 2 of 5 On the date the appeal was tabled before me for hearing, the respondent was represented by Michael Mwambaga, Learned Advocate for the respondent who also held brief of Mr. Derick Vincent, the Learned Advocate for the appellant. The court ordered the appeal to be conducted through written submissions In the following scheduling orders dated May, 2024; the appellant's submissions In chief were to be filed on or before 14/06/2024, the respondent's reply submissions were to be filed on or before 21/06/2024 whereas the appellant's rejoinder, if any, by 27/06/2024. However, according to the records of the appeal, for reasons better known to themselves the appellant and his learned counsel have not submitted their submissions in chief in support of the appeal as neither in the physical file nor In the electronic case management system are his respective submissions found. Notably, his omission has also been evidenced by the respondent's counsel who through the document he filed in this court on 20/06/2024, he has complained of not being served with the appellant's submissions in chief. That said, it is without flicker of doubt that Mr. James Juma Mnyeti, the appellant herein has failed to prosecute his appeal as it is a common knowledge that the appellant's failure to file the written submission equals Page 3 of 5 to his nonappearance on the date fixed for hearing of the same. In this, I am inspired by the hoiding of this court in the case of Brighton Mponji (Administrator of the Estate of the iate Theodora Masheyo)Versus Simon Pauio, Misc. Land Case Appiication No. 708 of 2020(Unreported) at page 3 where it was observed; "Filing written submissionsare tantamountto a hearing and;therefore, failure to fiie the submission as ordered is equivalent to non- appearance at a hearing or want of prosecution. The attendant consequence offailure to file written submissions is similar to those of failure to appear and prosecute or defend, as the case maybe. Equaliy, this court in Abisai Damson Kidumba vs Anna Chamungu and 3 Others, Misc. Land Appiication 43 of 2020 (Unreported) at page 2 underlined thus; "in factIagree with Ms. Kasebwa thatfailure to fiie written submission on the dates scheduled by the court is as good as non-appeanng on the date fixed for hearing and need not overemphasize. The applicant and his advocate failed to submit their written submission on the date fixed. They aiso failed to seek indulgence of the court to extend the Page 4 of 5 : time ifthere was good reason for not adhering to the court orders, decided in the cases cited by Ms. Kasebwa, the iaw is settied to the effect thata case shaiiface dismissalfor wantofprosecution ifa party fails to fiie his written submission on the date fixed by the court. Having the foregoing holdings In my mind which I fully subscribe to, It's my firm deliberation that the appellant has failed to prosecute his appeal. From the aforesaid, I dismiss the appellant's appeal with costs. It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 11™ DAY OF JULY, 2024 2: L. MANSOOR. > JUDGE 11.07.2024 Page 5 of 5