mohamed manji vs registered trustess of chama cha mapinduzi 2013 tzhc 2064 30 april 2013

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 5 OF 2012 (From the Decision of the District Land and Housing Tribunal of Temeke District at Temeke in Land Case No. 157 of 2006) MOHAMED MANJI....................................... APPELLANT VERSUS THE REGISTERED TRUSTESS OF CHAMA CHA MAPENDUZI............................ RESPONDENT 11th and 30th April, 2013 JUDGMENT MWAMBEGELE, J.: When this appeal came up for hearing on 07.03.2013, Mr. Mtatiro, learned counsel for the Appellant, was present. The Respondent's counsel was absent but Fatuma Juma Manjenga, Mshindo Salum Mlawa and Ashura Ali Mnara from the Respondent's offices, National Stadium Branch were present. Fatuma Juma Manjenga and Mshindo Salum Mlawa have been tracking the progress of this appeal by appearing in this court most of the times when this appeal was being called on for either mention or hearing. Given the absence of the Respondent's counsel, and having in mind that this matter is unnecessarily prolonged by his absence on several occasions, Mr. Mtatiro for the appellant, prayed that this appeal be disposed of by way of written submissions. Fatuma Juma Manjenga, on behalf of the trio, for the Respondent, conceded. She also felt that this course would hasten the determination of this matter which is long overdue. The court granted the prayer and proceeded to schedule the submissions dates as follows: "1. Submissions in chief by 21.03.2013reply by 04.04.2013 and rejoinder, if any, by 11.04.2013 2. Judgment25.04.2013". The Respondent has defaulted the court order which was made at the prayer of the Appellant's counsel and not objected to by it, for it has not filed its reply written submissions as agreed and as consequently ordered by the court. As per court order, the reply submissions were to be filed by 04.04.2013. At the time of drafting this judgment on 22.04.2013, no such submissions had been filed yet. No such submissions have been filed today 30.04.2013 when writing a final draft of this judgment. The Appellant was timeous in filing his written submissions. He filed his submissions in chief on 21.03.2013; quite in line with the court order dated 07.03.2013. 2 This court has held time without number that failure to file written submissions as ordered by the court is akin to failure to appear when the case is called on for hearing and consequent orders for such non appearance are inevitable. There is an unbroken chain of decisions of this court that so hold. These include Hidaya Zuberi Vs Bongwe Mbwana PC Civil Appeal No. 98 o f2003 DSM (unreported), Perpetua H. Kirigini & Another Vs Dr Msemo Diwani Bakari, Land Appeal No. 3 of 2005 (unreported), Athumani Kungubaya & Another Vs PSRC & TTCL, Miscellaneous Civil Appeal No. 1 or 2001 (unreported), Tanzania Electric Supply Co. Ltd Vs Abubakar Adam, Civil Appeal No. 46 of 2008 (unreported) and Twaha Songoro & 2 Others Vs Anold KatofPC Civil Appeal No. 18 of 2003 (unreported), to mention but a few. In view of the above case law, I am of a settled view that the Respondent has failed to defend its case. It was ordered to file its reply submissions by 04.04.2013. It did not do that and consequent order(s) must follow. Therefore, as already alluded to above, I will decide this appeal on the evidence available and as argued by the Appellant. The Appellant had initially filed four grounds of appeal and by leave of this court to amend the Memorandum of Appeal; he filed three more grounds through a document titled "Additional Grounds of Appeal". I pause here to think and ask myself a question whether the Appellant 3 r . had complied with the court order. The court order that triggered Mr. Mtatiro to file the additional grounds of appeal reads: "Prayer granted. Amended Memorandum o f Appeal to be filed within fourteen days from today". It follows that as per the order, Mr. Mtatiro ought to have filed an Amended Memorandum of Appeal as ordered instead of filing Additional Grounds of Appeal as he did. I note that, save for the title, the so called "Additional Grounds of Appeal" has a picture of an Amended Memorandum of Appeal as well. I say so because it has changed the prayers from what was craved for in the Memorandum of Appeal filed first. The initial Memorandum of Appeal had the following prayers: "(a) Proceedings, judgment and decree o f Temeke District Land and Housing Tribunal be quashed and set aside with costs. (b) Any other reliefs and orders that the Honourable Court finds and deems fit, just and equitable to grant" In the Additional Grounds of Appeal the Appellant changed the goal posts in seeking relief. The reliefs sought in the "Additional Grounds of Appeal" read: 4 "(a) The proceedings, rulings, orders judgment and decree o f Temeke be quashed and set aside with costs. (b) The Respondent be ordered to return the properties o f the Appellant and be ordered to make good o f the loss caused hitherto. (c) Any other relief ad orders that the Honourable Court may find fit and just to grant". It would seem therefore that the Appellant Intended to amend the Memorandum of Appeal but was carried away by the title: Additional Grounds of Appeal. In the process, he purported to add the three grounds of appeal and did not bother (or did not remember) to reload the second Memorandum of Appeal with the first four grounds previously advanced in the first Memorandum of Appeal. I must confess that I am somehow caught up in a situation of dilemma. This predicament has been caused by the Appellant himself. This is the dilemma: if I take that the Appellant filed additional grounds of appeal and therefore treat the three grounds of appeal in the "Additional Grounds of Appeal" as furthering the four grounds of appeal initially filed, I will be saying the Appellant did not comply with the court order dated 20.02.2013 which ordered him to file an Amended Memorandum 5 of Appeal. The consequence of such noncompliance will be to ignore the second Memorandum of Appeal and continue to rely on the first Memorandum of Appeal. On the other hand, if I take it that the subsequent document is an Amended Memorandum of Appeal, then, as demonstrated (infra), I will be saying the second Memorandum of Appeal replaced the first Memorandum of Appeal. Each course to be taken will have its consequences. I shall demonstrate. I start with the first assumption: that the second document actually comprises additional grounds of appeal as the title and numbering indicate. This assumption will put me in yet another predicament as the document titled Additional Grounds of Appeal consists of grounds of appeal that seek to challenge steps taken during execution of the decree of the District Land and Housing Tribunal after the appeal was filed. The first Memorandum of Appeal seek to challenge the decision of the decision of the Trial Tribunal dated 19.07.2011 while the second one (titled Additional Grounds of Appeal) seek to challenge the execution orders of the said decree which orders, as per the additional grounds of appeal and court record, were given on 24.01.2012. On the other hand, if I hold that the second document is an Amended Memorandum of Appeal then, it would imply that the second 6