MASESA NKUBA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF SHINYANGA

AT SHINYANGA MISC. LAND APPLICATION NO. 11113 OF 2024 (Arising from the Land Case Appeal No. 29 of 2023 before this court and from original Land Application No. 6/2022 at Kishapu District Land and Housing Tribunal) MASESA NKUBA ………………………………………………. APPLICANT

VERSUS LUHENDE NG’HONOLI ...........................................1ST RESPONDENT TEMWA DOSH…………………………………………..…2ND RESPONDENT

RULING 12th & 23rd August 2024. MASSAM J:. Applicant one Masesa Nkuba through the legal services of Mr. Emanuel Sululu learned advocate filed this application seeking extension of time to file appeal out of time. This application was made by way of Chamber Summons under Section 41(2) of the Land Disputes Courts Act [ Cap 216 R; E 2019] as amended by Section 41 of the Written Laws (Miscellaneous Amendment (Act No. 04 of 2016) accompanied by an affidavit sworn by Emanuel Sululu advocate for the applicant supporting the application and opposed by the counter affidavit dully sworn by the Luhende Ng’honoli and Temwa Doshi respondents. 1 On 15th July 2024 both parties agreed before this court to urge this application by way of written submission, the prayers was granted and the court scheduled the dates as follows that applicant was to file his submissions in chief on or before 29/7/2024. The respondent to file reply on 12/8/2024 and rejoinder if any on 19/8/2024. However, until on 12/8/2024 when the respondent was required to file reply was when applicant filed his submission in chief which was out of time for 15 days, but on 9/8/2024 the advocate for respondents Mr. Rugamila Emanuel Minani filed reply of written submission opposing this application informing this court failure of the applicant to file written submission in chief on time. He added that he perused the court file but

applicant was not yet filed his written submission as ordered by the court, so he told this court that failure of the applicant to file his submission on chief as ordered its outcome is to dismiss the application as it was held in the case of Famari Investment (T) Ltd versus Abdalla Selemani Komba Misc Civil Application No 41 of 2028 HC of Tanzania Mbeya (unreported at a page 3 and 4) which stated that “In fact I agree with Mr. Chapa submission that failure to file written submission on the dates scheduled by the court is as good as non-appearing on the date fixed for hearing and need not over emphasize ,The applicant and his advocate 2 failed to submit written submission on the date fixed, they also failed to indulgence of the court to extend the time if there was good reasons for not adhering to the court orders ‘As demonstrated in the cases cited by Mr. Chapa it has already been settled that a case shall face dismissal for want of prosecution if the party fails to file his written submission on the date fixed by the court”. So, he prays to this court to dismiss this application with costs for want of prosecution. Mr. Emanuel Sululu learned Advocate, for applicant he replied by admitting that on 15/7/2024 this court ordered the matter to be heard by way of written submission and he added that on 29/7/2024 he filed his submission on chief on line but he failed to be given

control number until on 12/8/2024 when he paid the court fees. He added that it is true that the date which he filed his submission in chief was the date when respondent was required to file his reply. He also said that he prays to this court to be given chance to be heard by allowing his submission or to be given another scheduling order or this court to vacate its order dated on 15/7/2042 and the matter to be heard orally. Respondent in his rejoinder stated that applicant is complaining that he was not given control number on time but in his side, he was given on time, so he insisted that applicant advocate was 3 required to follow court’s direction and not otherwise. So he prays this application to be dismissed for want of prosecution. After gone through the parties’ arguments, I noticed that the applicant failed to file his submission in chief on time because he filed his submission on line but he did not pay for court fees until on 12/8/2024 after elapse of almost 15 days after he filed it on line. We all knows that admission of the case became complete after payment of court fees and not otherwise, so by filing the case on line without pay the court fees cannot be called that the case was filed and admitted to the court. Also this court finds out that applicant failed to inform this court the reasons why this court failed to give him control number for almost two weeks.

Again this applicant failed to brought any exhibit like affidavit from DR or RO in charge to proof that there was a problem of control number for two weeks, bad enough the applicant failed to inform this court orally or by a letter that there was a control number problem in order this court to extend time for filing his submission in chief. This court has its view that applicant was not serious on this which make this court to feel like he is no longer interested to prosecute his case. According to that this court is support with Mr. Rugamila’s submission that failure to file written submission on time on 4 the dates scheduled by the court is as good as non-appearing to the court on the date fixed for hearing and its remedy is dismissal, this is supported with the case of P3525LT Idahya Maganga Gregory vs. The Judge Advocate General Court Martial Criminal Appeal No. 2 of 2002(unreported) the court held that ‘’It is now a settled in our jurisdiction that the practice of filing written submission 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 submission 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 the court orders including failure to file written submission within time frame ordered. Needless to state here that submission filed out of time and without leave of the court are not legally placed on records and are to be disregarded’’ Also, in the case of Geofrey Chikawe vs. Nathaniel K. Chawe Misc. Civil Application No 22 of 1998 the court held that “-----Failure to file written arguments on the part of the learned counsel for the applicant is an omission which 5 constitutes want of prosecution. I would dismiss the application on that account’’ Again, in the case of Harold Maleko vs. Harry Mwasanjala DC Appeal No. 16 of 2000 High Court Mbeya Makanja J, held that; ‘’I hold therefore that failure to file written submission inside the time prescribed by the court order was in excusable and amounted to failure to prosecute the appeal, Accordingly, the appeal is dismissed with costs’’ . From foregoing reasons, I hereby dismiss this application with costs for want of prosecution. It is so ordered. DATED at SHINYANGA this 23rd August ,2024. R.B. Massam

JUDGE 6