JOSEPH DAMAS MALLYA VS

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA PC CIVIL APPEAL NO. 28 OF 2023. (Arising from the decision of the District Court of Dodoma in Civil Appeal No. 21 of 2022 (DC Dodoma) dated 12/12/2022, Originating from Dodoma Urban Primary court in Civil Case No. 20 of 2022) JOSEPH DAMAS MALLYA…..……………………………..………………….APPELLANT VERSUS JOSEPH KILAMULAMU…..……….……………..………………………… RESPONDENT RULING Date of Last Order: 16th July, 2024. Date of Ruling: 26th July, 2024. E.E. KAKOLAKI, J. The appellant herein filed this appeal challenging the decision of the District Court in Civil Appeal No. 21 of 2022 dated 12/12/2022, that partly allowed the respondent’s appeal before it by reducing the amount of money awarded to the appellant after he had successfully sued the respondent before the Dodoma Urban Primary court in Civil Case No. 20 of 2022, for breach of contract. When the appeal was scheduled for hearing before this Court on 06/06/2024 Mr. Demetrius Masala counsel for the appellant prayed the Court to proceed with hearing by way of written submission the prayer which was not contested by Mr. Elisha Jones, Advocate who was holding brief for Mr. Josephat Mbeba, counsel for the respondent, the result of which the submission filing schedule orders were entered by the Court. It was then ordered that, the appellant should file his submission in chief in support of the appeal on or before 20/06/2024, while the respondent ordered to file his reply 1 submission on or before 4/07/2024 and appellant’s rejoinder submission if any file by the appellant by 11/07/2024, as the matter was scheduled to come for mention on 16/07/2024 at 09.30 hours with view of fixing a judgment date. On 16/07/2024 when the matter was called on for mention to ascertain compliance of Court’s orders Mr. Masara informed the court that, the appellant had filed his submission in chief and in compliance with Court orders but was yet to be served with a reply submission from the respondent so that he files the rejoinder submission. In response Mr. Josephat Mbeba, learned advocate for the respondent countered Mr. Masala’s submission when notified the Court that, up to 20/06/2024 which was the last date for the appellant to file his submission in chief in Court but the respondent’s follow up established that none was filed by then. Since no submission in chief was filed by the appellant by that date and if any filed was out of time, then the appeal should be dismissed for want of prosecution as filing of submission outside the prescribed court’s order is tantamount to non-appearance which its effect is dismissal for want of prosecution, Mr. Mbeba stressed. In support of his stance the Court was referred to the case of Marian Boys High School Vs. Rugaimukamu Rwekengo, Misc. Labour Application No. 367 of 2022 (HC) Tanzlii, whereby this Court at page 3 held that it is a settled principle of law that, failure to file written submission on the date scheduled by the Court is as good as non-appearance on the date fixed for hearing. He thus prayed this Court to dismiss the appeal for want of prosecution with costs under Rule 2 13(2) of The Civil Procedure (Appeals in Proceedings Originating from the Primary Court) Rules GN. No. 312 of 1964, as the ordered submissions by the appellant were filed out of time. In his reply Mr. Masala while admitting to have filed the submission in chief out of time on 27/06/2024 instead of 20/06/2024 he urged the Court to disregard the submission by the respondent arguing that, the appellant had an intention to prosecute his appeal that is why he went further to file the said submission on 27/06/2024 and effect payment on the filing fees. That, it was so after he mistakenly recorded the dates for filing the said written submissions. He thus prayed Court's mercy to the appellant by admitting his submissions filed out of time so as to accord him with the right to be heard on his appeal. He added that, since the appellant has already filed his submission in chief then this Court be pleased to order the respondent to file his reply so that the appeal is heard on merit. In rejoinder Mr. Mbeba pleaded the Court not to fall into respondent’s trap by admitting the submission filed in Court out of time as to do so is to set a bad precedent for parties to disobey court orders. He retorted the submission that the appellant wrongly recorded court's order on the dates for filing written submission is an afterthought as there is no evidence to that effect given the fact that, the appellant was represented on that day. To sum up he reiterated his submission in chief and prayed the Court to dismiss the appeal for want of prosecution. 3 I have dispassionately considered both parties submission and revisited the court proceedings. It is uncontroverted fact as rightly admitted by Mr. Masala that, appellant’s submission in chief in support of his appeal was filed outside the prescribed time in the court’s orders of 06/06/2024. I disbelieve Mr. Masala’s submission that, as the appellant’s advocate mistakenly and wrongly quoted dates for filing the said submission as he was personally in court on 06/06/2024. I find that assertion is an afterthought for being advanced after discovering that the submissions were filed outside the time scheduled by the Court. As rightly submitted by Mr. Mbeba the submission which I embrace the settled law is that, failure to file the submission as ordered by the Court is tantamount to nonappearance at a hearing or want of prosecution. It is so as the practice of filling written submissions is equal to a hearing and consequences of failure to file written submissions are similar to those of failure to appear and prosecute or defend the case. See the cases of P3525 LT Idahya Maganga Gregory Vs. The Judge Advocate General, Court Martial, Criminal Appeal No. 2 of 2002 (unreported) and Monica D/0 Dickson Vs. Hussein J. (Kny Chama Cha Wafanyabiashara), PC Civil Appeal No. 04 of 2019 (HC-unreported). In the case of P3525 LT Idahya Maganga Gregory (supra) the Court had the following observation to make concerning party’s failure to file the submission in compliance with Court orders: 4 It is now settled in our jurisprudence that the practice of filling w ritten subm issions is tantam ount to a hearing and; therefore, failure to file the subm ission as ordered is equivalent to nonappearance at a hearing or w ant of prosecution. The attendant consequences of failure to file w ritten subm issions are sim ilar to those of failure to appear and prosecute or defend, as the case may be. Court decision on the subject matter is binding...Similarly, courts have not been soft with the litigants who fail to comply with court orders, including failure to file written submissions within the time frame ordered. Needless to state here that submissions filed out of time and without leave of the court are not legally placed on records and are to be disregarded." (Emphasis supplied) In this matter since the appellant filed his submission in chief in support of the appeal outside the scheduled time by the Court hence violation of court orders, I find it is as good a failure to enter appearance before the Court on the date scheduled for hearing. Now what are the consequences of non- appearance of appellant when the appeal originating from the Primary Court is set for hearing? Rule 13(2) of the Civil Procedure (Appeals in Proceedings Originating from the Primary Court) Rules GN. No. 312 of 19964, in my humble view provides the answer and it reads: (2) Subject to the provisions of subrule (1) of this rule, where on the day fixed for hearing the appeal or any day to which it may be adjourned, the appellant does not appear in person or by agent, the appellate court may dismiss the appeal. 5 Applying the above provision of the law in the circumstances of this matter where the appellant failed to file submission without sound reasons which is equal to failure to enter appearance in court on the date when the matter is scheduled for hearing, the only available remedy I hold is to dismiss his appeal for want of prosecution. I so hold as having noted to be out of time in filing the said submission in chief, the only remedy to him was to seek for extension of time to so do. However, the appellant did not find any need to exhaust that remedy instead proceeded to file it out time. It is for that reason and the above cited authority of the law on the consequences for filing the submission out of time, I proceed to order that this appeal is dismissed for want of prosecution with costs. Order accordingly. Dated at Dodoma this 26th July, 2024. E. E. KAKOLAKI JUGDE 26/07/2024. Court: The Ruling has been delivered at Dodoma today on 26th day of July, 2024, in the presence the Respondent in person and Mr. Josephat Mbeba, advocate for the Respondent and Ms. Verardina Matikila, Court clerk and in the absence of the Appellant. Right of appeal explained. 6 E. E. KAKOLAKI JUGDE 26/07/2024. 7