MUSA SELEMANI IDD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISCELLANEOUS LAND APPLICATION NO. 26225 OF 2024 MUSA SELEMANIIDD ......... .......................... APPLICANT VERSUS 1. NTONGE VILLAGE COUNCIL................. ............. 2. SINGIDA DISTRICT COUNCIL.............. ............... RESPONDENTS RULING 11/02/2025 & 21/03/2025 MASABO J.:- The applicant has filed this application seeking restoration of Mise. Land Application No. 7382 of 2024. The application is braced by an affidavit sworn by Mussa Selemani Idd, the applicant herein. From this affidavit and its supporting documents, it is deciphered that the applicant was the plaintiff in the Land Case No. 1/2022 which was dismissed by this court for want of prosecution. Aggrieved, he applied for restoration in Mise. Land Application No. 7382 of 2024 but the same was dismissed for being time barred. Eager to restore the dismissed application, he has filed the present application. Upon being served with the application, the respondents objected it and raised a notice of preliminary objections based on the following three limbs: one, the application is misconceived and unmaintainable; two, the application is baseless, a wastage of court's precious time and an abuse of court process and, three, the court has not been properly moved. Page 1 of 6 The hearing of the preliminary objection proceeded by way of written submissions which were to be filed as per the following schedule. The respondent was to file their submission in chief by 21st February 2025. The applicant had to file his reply submission by 7th February 2025 and rejoinder if any was to be filed by 14th March 2025. The respondents, represented by Ms. Leia Salum, learned State Attorney complied with the scheduling order by filing their submission in chief on time. The applicant did not file the reply submission as scheduled. In support of her preliminary points, Ms. Salum abandoned the first and third limbs of preliminary objection and exclusively submitted in support of the second limb. She argued that the application is not only baseless. It is a wastage of the court's precious time and an abuse of the court process. Expounding her argument, she narrated the background of the application, arguing that, the instant application is incompetent and an abuse of the court process as it seeks to restore an application that was dismissed by this court for being time-barred and not for want of prosecution. She added that the application was dismissed by this court after it sustained a preliminary objection raised by the respondent that it was time-barred. Hence, it is improper before this court. This shows that the application is an abuse of the court process and forum shopping hence untenable as stated in the case of East African Development Bank vs Blueline Enterprises Limited, Civil Appeal No.101 of 2009 [2009] TZCA TanzLIL In conclusion, she prayed that the application be dismissed. Page 2 of 6 As already stated, the hearing of this application was scheduled to proceed in writing as per the schedule set out by the court. In compliance, the respondent filed their submission in chief but the respondent defaulted. It is therefore, apposite at this stage to first consider the ramifications for such default. It is now a settled principle of law in our jurisdiction that hearing by way of written submission is equivalent to a \iiva rehearing and the failure to file written submission when ordered, is considered to be tantamount to the failure to enter appearance on the date of hearing which renders the application, suit or appeal a best candidate for dismissal. There is a plenty of authorities on this. In the case of Fredrick Mutafungwa vs CRDB 1996 Ltd and Others, Land Case No. 146 of 2004 (unreported) the Court of Appeal held that: Times and out of numbers, this Court has held that the practice of filing written submissions is tantamount to a hearing and therefore failure to file submission has been linked to a non- appearance for want of prosecution. Cementing this position in the case of National Insurance Cooperation (T) Ltd and Another vs. Shengena Limited Civil Application No. 20 of 2007 [2007] TZCA 371 TanzLII it was held that: Failure by a party to lodge written submissions after a court has ordered hearing by written submissions is tantamount to being absent without notice on the date of hearing. As the hearing in the present case was in respect of preliminary objection on a point of law, the applicant's default presupposes that he has conceded to Page 3 of 6 the preliminary objection and it should, in consequence, be sustained. This finding disposes of the application. I will, however, for the sake of completeness determine the merits or otherwise of the preliminary objection based solely on the submission made by the respondents. Indeed, as submitted by Ms. Salum, on 20th September 2024, I delivered a ruling in respect of the preliminary objection raised by the respondent herein in Miscellaneous Land Application No. 7382 of 2024 in which the applicant was beseeching the court to restore his land suit which was dismissed for want of prosecution. Convinced that the application was time-barred, I sustained the preliminary objection raised by the respondent herein and dismissed the application under section 3(1) of the Law of Limitation Act for being filed out of time. The applicant did not appeal or file an application for review or even revision challenging the aforesaid dismissal order. Rather he filed the instant application praying the court to restore the application which was dismissed for being filed out of time (Miscellaneous Land Application No. 7382 of 2024). The immediate issue is whether this application is proper before me considering also that the applicant has eloquently deponed in his affidavit that the application he now seeks restoration was dismissed for want of prosecution. The answer is certainly in the negative. Since the matter was dismissed by this court for being time-barred, restoration as a remedy is not available to the applicant. Such a remedy would have been available had the dismissal order resulted from want of prosecution which is not the case. The remedy available to the applicant herein was to challenge the dismissal order Page 4 of 6 by way of an appeal, review or revision if he had exceptional circumstances warranting the filing of the revision or review as held by the Court of Appeal in Hashim Madongo and Two Others vs Ministry for Industry and Trade and Two Others Civil Appeal No. 27 of 2003(unreported). In this case, whose facts resonate with the facts herein, the applicant filed an application for restoration of his dismissed application. The Court of Appeal held that: ....if the applicants were aggrieved by the dismissal of their application by Kalegeya, J. they should take the steps known to law against it; e.g. appealing to the Court of Appeal. If they were not, then the matter lies there. In the case of African Development Bank vs Blueline Enterprises Limited (supra) cited by Ms. Salum, the Court of Appeal instructively propounded the remedies available to a party aggrieved by an order dismissing a matter for time-barred under section 3(1) of the Law of Limitation Act. It held that. Applying the principle discerned from the above authorities it follows that once an order of dismissal is made under section 3(1) it is not open to an aggrieved party to go back to the same court and institute an application for extension of time. The remedy is to seek review before the same court or to lodge an appeal or a revision before a higher court. Page 5 of 6 It stated further that: ....the rationale is simple. That is as far as the court is concerned the issue of time limitation has been determined. So a party cannot go back to the same court on the same issue. That being the position of the law, I find the application to have been lucidly misconceived as it has no legs to stand on. The applicant is at liberty to file his appeal or revision before the Court of Appeal or to file a review before this court. Accordingly, I sustained the objection and struck out the application for incompetence. Costs are to be shared by each of the parties bearing his/her respective costs. DATED and DELIVERED at DODOMA this 21st day of March 2025. J. L. MASABO JUDGE Page 6 of 6