MKOMBOZI COMM BANK PLC VS COSMASS ALIEN

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 177 OF 2023 (Arising from Taxation Cause No. 154 of2022) MKOMBOZI COMMERCIAL BANK PLC.............................................. APPLICANT VERSUS COSMASS ALIEN MSIGWAT/A NYAJIGALA TRADING CENTER....RESPONDENT RULING Date of Last Order: 28/02/2024 Date of Ruling: 25/03/2024 MKEHA, J. In this application the applicant is seeking the following orders: a. The Honourable Court be pleased to issue an order to extend time within which to file a reference against this court's decision by Hon. Minde, DR dated 15th December 2022 in Taxation Cause No. 154 of 2022 on the following grounds: i. That, the said decision is tainted with illegality for want of legal basis in the Taxing Master's decision awarding Tanzanian i Shillings Fifty-Eight Million Eight Hundred Forty-Six Thousand and Sixty-Nine (TZS. 58,846,069) as total costs out of which Tanzania Shillings Fifty-Five Million Five Hundred Sixty-Six Thousand and Sixty-Nine (TZS. 55,566,069) was taxed as instruction fees in favour of the respondent who was the Defendant in the main suit. ii. That, there are errors apparent on the face of record in the Application for Bill of Costs as well as the Ruling and Certificate of Taxation of the Taxation Cause resulting in miscarriage of justice to the applicant. b. Any other order that this Honourable Court may deem fit to grant. The application is brought under Order 8(1) & (2) of the Advocates Remuneration Order, G.N No. 263 of 2015 and is supported by an affidavit sworn by Mr. Joseph Nuwamanya, advocate for the applicant. The application is opposed through a counter affidavit of the Respondent. Hearing of this application was scheduled to be conducted by way of written submissions. Pursuant to order of this court dated 29/11/2023, the applicant was supposed to file her written submissions on 13/12/2023. The 2 respondent was ordered to file reply submissions on 27/12/2023 and the applicant's rejoinder (if any) was to be filed on 03/01/2024. I have found submissions of both parties on record. However, the respondent raised one concern in his reply submissions which I think is worth determining. His concern is that, the applicant's written submissions were filed in this court one day late contrary to the court's order without seeking leave of the court to do so. The issue for determination is whether the applicant's written submissions were filed out of the scheduled time? Upon careful examination of the court's record in this matter I have observed that, the applicant's written submissions were filed in court on the 14th day of December, 2023. In that regard, I am in agreement with the respondent that the same was filed out of time scheduled that is, on 13/12/2023. Hence, the issue is answered in the affirmative. That being the case then, what is the way forward? The position is clear that, failure to file submissions according to court's schedule is tantamount to non-appearance or failure to prosecute one's case. On that basis, the consequences for non-appearance or failure to prosecute a case are obvious. It is either dismissal if the default is on the 3 plaintiff or applicant's side or proceeding ex-parte where the defendant or respondent is in default. Same principles apply in cases of failure to file written submissions. Therefore, since the defaulter in the instant application is the applicant, then the application is to be dismissed for the applicant's failure to prosecute her application within the scheduled time. I am mindful of the position that, in deserving applications an application can as well be determined on the basis of the filed affidavits only. However, Order 8 (2) of GN No.263 of 2015 insists on there being a hearing before reaching a decision. For the foregoing reasoning, the application is dismissed for failure of the applicant to prosecute the same. I make no order as to costs. DATED at DAR ES SALAAM this 25th day of MARCH 2024. C.P.MKEHA JUDGE 25/03/2024 Court: Ruling is delivered in the prespnra pfjhe parties' advocates. C.P.MKEHA^ judge IsSWmM 25/03/2024