kiariro ephrahim mbwambo vs said abdallah msisi 2022 tzhc 15827 12 december 2022

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY)

AT MOROGORO LAND APPEAL NO.98 OF 2022 (Arising from the Judgment and Decree of the District Land and h ousing Tribunal for Morogoro, at Morogoro; Originating from Mikese Ward T ribunal in Land Case No.01 of 2021) KIARIRO EPHRAHIM MBWAMBWO ..APPELLANT

VERSUS

SAID ABDALLAH MSISI RESPONDENT

JUDGEMENT th IS*"" Nov,& 12'" Dec, 2022 CHABA,J. This is an appeal against the judgment of the District Land and Housing Tribunal (the DLHT)for Morogoro, at Morogoro in Land Appeal No. 65 of 2021 handed down on 30/05/2022. The antecedent facts that triggered the instant appeal are captured as follows: In 2020, the appellant instituted a land dispute in Mi <ese Ward Tribunal seeking to be adjudged the owner of the parcel of land in dispute Page 1 of 7 located at Engero area in Mikese Village within Morogoro District in Morogoro Region. After a full trial, the trial tribunal delivered its judgment in favour of the i I respondent and declared him as the lawful owner of the disputed parcel of I land. Aggrieved by the decision of the trial tribunal, the appellant appealed to I the DLHT for Morogoro, at Morogoro. The DLHT entertained the appellant's appeal and heard both parties. Upon deliberations, the DLHT embraced the decision of the Ward Tribunal by dismissing the appeal. i Still aggrieved, the appellant preferred the present appeal upon filling the petition of appeal intending to challenge the said decision bas^ ;d on the following grounds of appeal that: - 1. That, the trial ward tribunal was improperly constituted and hence lacked jurisdiction, 2. That, the District Land and Housing Tribunal failed to consider and I invoke the principle of time limitation in favour of the appellant herein.

3. That, the District Land and Housing Tribunal erred in law and in fact for I failure to hold that the trial Ward Tribunal erred in law and in fact for giving judgment in favour of the respondent while his evidence and that of his witnesses was tainted with discrepancies.

4. That, the District Land and Housing Tribunal erred in law andl in fact for failure to note that the disputed land being a surveyed land, only the registered owner became the lawful owner. Page 2 of 7 5. That, the District Land and Housing Tribunal erred in law and fact for failure to note and consider how and when the respondent acquired the land in dispute. On the strength of the above grounds of appeal, the appellant prayed this i Court to grant the following reliefs: - I I i. That, the appeal be allowed. I ii.That, the appellant herein be declared as the lawful owner of the disputed, land ill. Costs of this appeal and the proceedings below be awafded to the appellant. When the appeal came up for hearing, the appellant was represented by Mr. Ignas Punge, learned advocate while the respondent appeared in person, unrepresented. With the parties' consensus it was agreed that this appeal be disposed of by way of written submissions. According to the Court's scheduled orders, the appellant was to file his written submission on or before 25^*^ October, 2022. On his part, the respondent was required to file his reply to the appellant's written submission in chief on or before Novernber, 2022 and rejoinder (if any) had to be filed by the appellant on or before November, 2022. To ensure that pleadings were in place, the matter was fixed for mention on the same date on 18'^

November, 2022. The appellant filed his written submission in chief pursuant to the Court's scheduled orders. However, for no Page 3 of 7 apparent reason, the respondent didn't file his reply to the appellant's written submission and both parties did not enter appearance before the Court on November, 2022 and on the date of judgment. On my part, upon scrutiny of the Court record, I found that the appellant through his learned advocate filed his written submission in chief on 25^*^ October, 2022 instead of the 25^'^ October, 2022 as agreed by the parties and blessed by this Court through the orders scheduled by the Court as hinted above. Though the appellant delayed to lodge his written submission, he did not bother to notify the Court nor Sought leave for an extension of time within which to file the respective written submission out of the prescribed time. Instead, he proceeded to file his written submission out of the prescribed time. Likewise, the responded never filed his written submission until the time of preparing the present decision. In essence. Court's Orders should be respected and must be complied with. Doing to the contrary invites chaos in Court as it was underscored by the CAT in the cases of Tanzania Breweries Ltd Vs. Edson Dhobe and 19 1 i 1 Others, Misc. Civil Application No. 96 of 2000 (unreported) bnd Micky Gilead Ndetura (A minor suing through Gilead

Ndetura Lembai, A next friend) Vs. Exim Bank (T) Ltd, Commercial Case No. 4 of 2014 (unreported). For instance, in the case of Tanzania Breweries Ltd Vs. Edson Dhobe and 19 Others (supra) the Court of Appeal of Tanzania had the following to state: - Page 4 of 7 " Court Orders should be respected and compiled with. Court should not condone such failures. To do so is to set a bad precedent and invite chaos. This should not be allowed to occur. Always Courts should exercise firm control over proceedings. I dismiss the application with costs." Looking at the appellant's submission, it is my considered opinion that, the appellant's conduct exhibited disobedience of the Court's order. As it was underscored by the CAT in the case of Tanzania Breweries Ltd Vs. Edson Dhobe and 19 Others (supra), conducts of the like cannot at ahy rate be entertained by the Court. On this facet, I agree and subscribe to tfe principle set in the case of Harold Maleko Vs. Harry Mwasanjala, DC Civil Appeal No. 16 of 2000, HC - Mbeya (unreported) where it this Court observed that: - "I, hold, therefore that the failure to file written submission inside the time prescribed by the court order was inexcusable and 1 amounted to failure to prosecute the appeal. Accordingly, the appeal is dismissed with costs". Similar position was maintained in the case of P3525 LT Idahya Maganga Gregory Vs. The Judge Advocate

General, Court Martial Crim nal Appeal No. 2 of 2002 (unreported) wherein the Court held that: - "It is now settled in our jurisprudence that the practice of filling written submissions is tantamount to a hearing and; therefore, j I Page 5 of 7 failure to Hie the submissions as ordered is equivalent to non- appearance at the hearing or want of prosecution. The attendant consequences of faiiure to die written submissions are simiiar to those offaiiure to appear and prosecute or defend, as the case (' nay \ be. Court decision on the subject matter is bound.... Simiiariy, cOprts have not been soft: with the litigants who faii to comply with Court 1 orders, including failure to file written submissions within the time frame ordered. Needless to state here that submissions filed out of I time and without leave ofthe court are not legally placed on records and are to be disregarded." Relying on the principle of law extracted from the above precedent, the fact that the appellant did not file his respective submission in accordance with the time frame, constitutes failure to comply with the Court's scheduled order which is tantamount to failure to prosecute his Land Appeal and is as good as failure to enter appearance when the matter is called on for hearing and the consequence thereof is dismissal. As it was held in Tanzania Breweries Ltd Vs. Edson Dhobe and 19 Others (supra). Courts

should not condone such failure. On the strength and support of the case laws cited above, it is my holding that since there is neither notice for the default nor an extension of time sought and obtained, I take that the appellant has abandoned his petition of appeal, hence the appellant's petition of appeal cannot stand. Page 6 of 7 In the final analysis, this Land Appeal No. 98 of 2022 must fail, and it is hereby dismissed in its entirety for want of prosecution with no order as to costs. Order accordingly. DATED at MOROGORO this 12^^ day of December, 2022.

OF O M.J. C ABA :r:

JUDGE 12/12/2022 Page 7 of 7