MASENZA SALEHE NGONDE scanned

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL No. 27284 OF 2023 (Arising from the decision of the District Land and Housing Tribunal for Hala in Land Application No. 96 OF 2019, delivered on 21st August 2023 by Hon. A.R. Kirumbi) MASENZA SALEHE NGONDE.... .......... ........................ APPELLANT VERSUS HASSAN CHANDE HAME.......................................... RESPONDENT RULING 23d May, 2029 L. HEMED, J. On 21st March 2024, the matter was called for necessary orders. Mr. Job Kerario, learned advocate represented the Appellant while the Respondent appeared in person. On the said date, Mr. Kerario prayed for an order that the Appeal be argued by way of written submissions. The Respondent did not object the said prayer. Having found that parties were in consensus ad idem, the court granted the prayer and made the filing schedule as follows:- - Submissions in chief by 11th April 2024; - Reply submission by 2nd May 2024; - Rejoinder if any by 9th May 2024; and - Judgment was to be delivered on 21st March 2024. i When the case file was placed before me to compose Judgment, I discovered the following 1. There was no reply submission filed by the Respondent; and 2. The appellant's submissions in chief appeared to have been filed on 12th April 2024 instead of 11th April 2024. On 23rd May,2024 parties appeared before me to address if my observations herein above were correct. The Respondent was the 1st to be called to address the court as to why he did not file the reply submissions as was directed. He asserted to have failed to file the Reply submission because he was served late. According to him, he was to wait for audience of the court to seek leave to file it out of time. He also submitted that since the Appellant's submission in chief was filed out of time, it should not be considered and the Appeal be dismissed for want of prosecution. On the part of the Appellant, Mr. Karerio, admitted the delay in supplying copies of submissions in chief to the Respondent. He also told the court that he was unable to file rejoinder, as he was never served with reply submission. Regarding the date of filing submission in chief, the learned counsel admitted to have filed it on 12th April 2024 instead 2 of 11th April 2024 due to system technical faults. He prayed to be allowed to withdraw the submission in chief and be permitted to refile. Having heard from the parties, it is now clear that the Appellant filed his submission in chief out of time without the leave of this Court. The question is what is the consequences of filing submission out of time without seeking for leave? In plethora of decisions, courts have held that submissions that are filed out of time without leave of the court cannot be acted upon. For instance, in the case of Andrea Njumba v. Trezia Mwigobene, PC Civil Appeal No. 1 of 2006, the Court had this to observe:- "ifa party fails to act within the time prescribed he will be guilty of diligence in like measures as if he has defaulted to appear and submissions which were filed out of time will not acted upon.. '[Emphasis added] The same position was echoed in the reported case of Mobrama Gold Corporation Ltd v. Minister of Energy and Minerals and Others [1998] TLR 425, Godfrey Kimbe vs Peter Ngonyani Civil Appeal No. 41 of 2014 and National Insurance Corporation of (T) Ltd & another v. Shengena Limited, Civil Application No. 20 of 2007. From the above-cited authorities, I am of the settled view that, failure of 3 the Appellant to file his submission in chief timely, is as good as having failed to file it. The failure to file submissions as per the schedule prescribed by the court is the same as failure to appear on the date fixed for hearing or having neglected or refused to submit when called to address the court orally. Therefore, failure to file submissions in chief within time, which in law has the meaning of having failed to file the same, implies of a party having failed to prosecute the matter before the court. In this case the appellant was ordered to file submission in chief on or before 11th April 2024, but without the leave of this court he made his own decision of filing it on 12th April 2024. Mr. Kerario prayed to withdraw the submission filed out of time so that he may refile it. In my firm opinion, the prayer is out of time as well. The only remedy, which the Appellant had, was to seek for extension of time to file the said submission in chief prior to filing it. Having filed it contrary to the order of this court, he cannot correct his mistakes by withdrawing it. The Appellant is duly represented by a very senior advocate, Mr. Kerario who is well aware that once a point of law has been raised, a party is precluded from withdrawing the subject matter against which the point has been raised, in this case the submission in chief filed out of time. 4 This is because, by doing so will amount to circumventing the point raised. The only options available to the party against whom the point has been raised is to either concede or argue against it and wait for the ruling and the associated consequences. In the instant matter, the Appellant's advocate conceded to have filed the submissions in chief out of time he cannot withdraw it but to suffer the consequences of his own deed. I hereby proceed to dismiss the entire appeal with costs for want of prosecution. It is so ordered. DATED at DAR ES SALAAM this 23rd May 2024. 5