JUMA HAMISI KISIU AND OTHERS VS

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA LAND APPEAL NO. 1573 OF 2024 JUMA HAMISI KISIU..……………………………………………………...1ST APPELLANT ALLY HAMISI KISIU…..…………………………………………….……..2ND APPELLANT JUMANNE RAMADHANI ….…………………………………………....…3RD APPELLANT MKANGA JUMANNE…..…………………………………………………….4TH APPELLANT SHABANI RAMADHANI…………………………………………………….5TH APPELLANT VERSUS MOHAMED ISSA MGHANJA (Administrator of the Estate of the late ISSA MGHANJA……………………………………RESPONDENT RULING Date of last order: 20th August, 2024. Date of Ruling: 20th September, 2024. E. E. KAKOLAKI, J. This ruling seeks to address the measures to be taken by the Court against the appellants who defaulted compliance of its orders after were ordered to file written submissions within specified time in support of their appeal. Briefly before the District Land and Housing Tribunal for Singida at Singida in Land Application No. 87 of 2019, the appellants together with three others not part to this appeal were successful sued by the respondent as administrator of the estate of the Issa Mghanja, after claiming ownership over piece of land measuring 15 acres located at Nyaghamila suburb, Msisi Village and Ward within Singida District and Region alleged by the respondent to be part of the 1 estate of his late father, so as to benefit from land compensation payable to land owners by the gas pipeline project passing in that land. In its judgment handed down on 02/11/2023, the trial Tribunal declared the suit property to be owned by the late Issa Mghanja while ordering the 2nd, 3rd, 6th, 7th and 8th respondents in the said application to bear costs of the suit. Not amused the present appellants appealed to this Court vide Land Appeal No. 1573 of 2024 wrongly including in their petition of appeal two other fellows who were respondents before the Tribunal but did not wish to appeal. However on 23/04/2024 when the matter came for mention appellants prayed the Court for leave which was granted for the interest of justice for them to rectify their petition of appeal by removing names of the 3rd and 4th appellants wrongly included and file a rectified petition of appeal on or before 30/05/2024. Court’s order to that effect was complied with but this time again adding one Hamis Kisiu as appellant who never formed part of the first petition of appeal filed in court earlier. When the matter was adjourned for mention to 19/06/2024, the respondent raised that concern in which the appellants conceded while claiming ignorance of the law and pleading the Court to excuse them and be allowed to rectify the error, the prayer which once again for the interest of justice and avoidance of Court being caught up by technicalities was granted as they were ordered to effect the said changes and serve a copy of petition of appeal to the respondent by 03/07/2024. The appeal was thus adjourned to 31/07/2024 when it came for mention with view of establishing appellant’s 2 compliance with court’s orders. Again on 31/07/2024 it happened that appellants had failed to timely file the said rectified petition of appeal and serve the Respondent as ordered by the court on 19/06/2024 this time as usual seeking extension of time within which to file and serve it to the respondent and have their appeal heard in writings as they had insufficient financial resources to hire legal services so as to proceed orally, the prayer which was vehemently resisted by the respondent praying the Court to dismiss the appeal on the ground that appellant have been defaulting court orders several time without any action taken against them. Having weighed both parties rival submissions and considered the need to accord appellants with their right to be heard once again the Court granted their prayers as this time around were ordered to file the rectified petition of appeal by 02/08/2024 and their submission in chief in support of the appeal on or before 16/08/2024 while hearing of the respondent’s reply orally who also claimed to have no financial means to secure a legal mind to draw for him reply submissions reserved to 20/08/2024. It is noted by the Court with great concern that up to 16/08/2024, appellants had not yet filed and served the respondents with their submission in chief in support of the appeal as ordered by the Court serve for the rectified petition of appeal that was filed in time. On the 20/08/2024 when the matter called for hearing the respondent orally on his reply to the appellants’ submission in chief in support of their appeal, appellants appeared in Court represented by 3 Mr. Hubert Lubyama, learned advocate whom they also misled that the appeal was coming for oral hearing of their submission in chief. The respondent appeared in person unrepresented. Submitting for the appellants Mr. Lubyama informed the Court that, the matter was coming for hearing and that he had been engaged by the appellants to represent them as that was his first appearance in Court. Conceding on his client’s disobedience to the Court orders the learned legal mind stated that, appellants were supposed to file their written submission in support of their appeal on 16/08/2024 but failed to do so as each of them improperly understood court’s order for filing the said submission in chief. He thus prayed the Court to turn blind its eyes on the appellants’ fault by extending them time within which to comply with the order for filing of submissions in chief as ordered before. Further to that prayer the learned counsel expressed appellant’s commitments to bear costs if any incurred by the respondent so that both parties are heard on merit of the appeal. On his side the respondent having heard the submission by the learned counsel resisted Court’s invitation by the appellants to turn blind eyes on their default to comply with its orders arguing that they have been so conducting themselves more than once but the Court has been so lenient to them. He reasoned that, last but one adjournment were ordered to file the rectified petition of appeal in time but failed to do so on flimsy reasons but still the Court on interest of justice extended them time up to 31/07/2024. It is on 4 that date he elucidated, when upon their own motion the Court granted their prayer to be heard by way of written submissions while ordering them to file their submission in chief by 16/08/2024 so that he (respondent) could make his reply on 20/08/204 for not being represented and for want means to get someone to prepare submission for him on pay. Again for no apparent reasons he lamented, the appellant ignored Court’s order while trying to circumvent it by engaging an advocate to represent them despite of knowledge of such default. He added that, appellants were also ordered to serve him with the copy of rectified petition of appeal but also breached such order until 19/08/2024 when he decided to collect the same on his own from the court. He concluded by arguing that, appellants' default in complying with court's orders more than once is associated to their inaction and negligence hence any prayer for extension of time by them this time is nothing but mockery to justice and an abuse of court process as to him ignorance of law is not an excuse. The respondent therefore prayed this Court to dismiss the appeal for want of prosecution with costs as the fault cannot be shouldered on their advocate rather the appellants themselves for not telling him the truth. In rejoinder Mr. Lubyama, while reiterating his submission in chief reminded the Court that, parties were before it to seek justice and peace that could only be achieve if time is extended to the appellants so that both parties are fully heard. He thus prayed for court’s mercy before closing his submission. 5 I have carefully followed the fighting submissions by the parties on what course should be taken by the Court for the appellants’ default to file their submission in chief in support of the appeal as ordered by the Court on 31/07/2024. While Mr. Lubyama is of the prayer that, time be extended to them so that both parties are heard on merit through his representation, the respondent is of the contrary view in that, they do not deserve that mercy as they have desobeyed court orders more than once. The issue for determination by the Court therefore is what course should be taken by this Court under the circumstances. It is not in dispute that, appellants have been defaulting court orders several times and time extended to comply with them more than once. The first time as per Court record was on 30/05/2024 when decided to add the name of Hamis Kisiu in the petition of appeal after they were ordered to remove the names of 3rd and 4th appellants out of seven appellants for being wrongly included. Second disobedience to court orders was of 31/07/2024 when appeared in court without filing the rectified petition of appeal and serve the same to the respondent as ordered, seeking extension of time within which to file and serve the same to him while praying for their matter to proceed hearing in writings as they had no financial mean to engage legal services, extension of time which was granted and ordered to file their submission in chief on or before 16/08/2024, the order which they failed to comply with as the third disobedience. 6 It is settled law that, hearing in the form of written submissions is equal to oral hearing thus failure by the appellant or applicant to file written submission in time as ordered by the Court bears similar consequences to that of failure by the same party to appear in Court when the matter is scheduled for hearing. 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 (HCunreported). In P3525 LT Idahya Maganga Gregory (supra) deliberating on similar subject the Court had the following to say: ’’It is now settled in our jurisprudence that the practice of filling written submissions is tantamount to a hearing and; therefore, failure to file the submission as ordered is equivalent to nonappearance at a hearing or want of prosecution. The attendant consequences of failure to file written submissions 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 comply with court orders, including failure to file written submissions within the time frame ordered.’’ (Emphasis supplied) Applying the above principle of law to the facts of this matter, it is uncontroverted fact as correctly submitted by the respondent that it is the appellant on their own volition on 30/07/2024 in addition to the prayer for extension of time to file the rectified petition of appeal and service to the 7 respondent, prayed also for disposed of their appeal by way of written submission, the prayer which was granted though not pleased the respondent who wanted both parties to be heard orally. Under such circumstances I do not embrace Mr. Lubyama’s contention that, appellants misunderstood court’ order for them to file written submission the reason of which forced them to hire him. I shoulder up with the respondent’s submission that, the decision by the appellants to hire advocate came as an afterthought to circumvent court’s order for them to file the said written submission in chief believing that the learned advocate could rescue the situation. In my humble view that was a wrong approach as having been heard by way of written submission their failure to file the respective submission by 16/08/2024 as ordered by the Court appellants is equally treated as their failure to appear before the Court on the date when the appeal scheduled for hearing. I so view as court order carries instructions which must be complied with within the prescribed time failure of which its consequences must follow the breaching party. To hold otherwise I find would amount to inviting parties to disregard court’s order and conduct themselves according to their wishes the behavior which this Court is unprepared to condone. I so holding I find solace in the decision of this Court in the case of Olam Tanzania Limited Vs. Halawa Kwilabya, DC Civil Appeal No. 17 of 1999 (unreported) where the Court observed thus: "Now what is the effect of a court order that carrier instructions which are to be carried out within a pre- determined period? Obviously, such an order is binding. 8 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. In addition, an order for filing submission is part of hearing. So, if a party fails to act within prescribed time, he will be guilty of indiligence in like measure as if he defaulted to appear... This should not be allowed to occur. Courts of law should always control proceedings, to allow such an act is to create a bad precedent and in turn invite chaos." Similarly in the case of John Mwansasu Vs. Republic, Criminal Review Case No.8 of 2000, this Court had the following to say of the need of a parties to the case to comply with court orders: A court order is lawful unless it is invalidated by another superior order and therefore, it must be obeyed. Contrary view will have the undesired effect of creating an impasse in the conduct of trials. In this case since the appellants disobeyed a lawful court order for filing their submission in chief in support of their appeal by 16/08/2024 instead hired services of an advocate whom they also misinformed that the matter was coming for hearing of appeal orally on their part and given the settled law that, failure to file written submission within the time prescribed by the court is tantamount to failure to appear in court when the appeal is set for hearing, I find the appellants failed to prosecute their appeal. Consequently the appeal is dismissed for want of prosecution with costs. 9 Order accordingly. Dated at Dodoma this 20th of September, 2024. E. E. KAKOLAKI JUGDE 20/09/2024. Court: The Ruling has been delivered at Dodoma today on 20th day of September, 2024, in the presence of Mr. Hubert Lubyama, advocate for the appellants, all appellants in person, the Respondent in person and Ms. Neema Lulandala, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 20/09/2024. 10