ODETHA RULING

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA MISC. LAND APPLICATION NO. 18016 OF 2024 (Arising from Land Case No. 14883 of 2024) ODETHA ISAAC………………………………………………………………APPLICANT

VERSUS ILEMELA MUNICIPAL COUNCIL…………………………………1ST RESPONDENT ATTORNEY GENERAL………………………………………………2ND RESPONDENT REGISTRAR OF TITLES…………………………………………….3RD RESPONDENT COMMISSIONER FOR OATHS……………………………………4TH RESPONDENT

RULING 3rd & 30th October, 2024 KAMANA, J. On 12th September, 2024, the parties to this application were ordered by this Court to dispose of this application by way of written submission. The applicant was required to file her submission and serve the respondents on or before 19th September, 2024. The respondents were to file and serve their submission in reply on or before 26 th September, 2024. The rejoinder was to be filed on or before 3 rd September, 2024. Contrary to the orders of this Court, the applicant filed his submission on September 20th September, 2024, and served it on the 1 respondents on 23rd September, 2024. In the respondents' views, through Mr. Felician Daniel, learned State Attorney, this amounts to failure to prosecute the case. In strengthening the argument, the learned State Attorney relied on the case of Godfrey Kimbe v. Peter Ngonyani, Civil Appeal No. 21 of 2014-CAT (Unreported). He amplified that court orders are to be complied with and any act or omission to the contrary is not to be condoned by the court. He substantiated his arguments by relying on the case of Oliva Amulike v. Ritha Mathew Temu and Benard Abraham Temu (As Joint Administrators of the Estate of the Late Abraham Benard Temu), Misc. Application No. 596 of 2023-HC (Unreported). He summed up his arguments by asking this Court to dismiss the application for want of prosecution with

costs. Rebutting, Mr. Julius Mushobozi, learned Counsel for the applicant contended that the submission was filed within the time as it was electronically filed and admitted on 19th September, 2024. He added that the control number was generated on 20th September, 2024. In his opinion, Rule 21(1) of the Judicature and Application of Laws (Electronic Filing) Rules, 2018 (GN No. 148 of 2018 rescues the applicant as the rule envisages that the written submission was filed when submitted in 2 the electronic filing system before the midnight on the date when it was presented for filing. Alternatively, Mr. Mushobozi contended that late filing is not fatal when the other party is not prejudiced. He amplified that the respondents were ordered to file their submissions on 24th September, 2024 and not on 25th September, 2024 or 26th September, 2024, hence their submission in reply was time-barred. He asserted that despite the late filing of the respondents’ submission, the applicant was not prejudiced. The learned Counsel contended further that the case of Godfrey Kimbe (Supra) was out of context as there are developments that condone late filing. Concerning the case of Oliva Amulike (Supra), Mr. Mushobozi distinguished it on the reason that, in the said case, the late filing prejudiced the other party which is not the case in the instant matter. He added that it is the position of the

law that when there is a late filing and the other party is not prejudiced, such late filing is not fatal. In this, Mr. Mushobozi cited the case of Tanzania Venture Capital Fund Ltd v. Igonga Farm Ltd [2002] TLR 304. At the outset, I hasten to state that according to the orders of this Court, the respondents’ submission was to be filed and served to the applicant on or before 26th September, 2024. In that case, Mr. 3 Mushobozi’s argument that the respondents’ submission was filed out of time is incorrect. In determining the controversy, I perused the electronic Case Management System (eCMS). According to the system, the applicant’s submission was received on 18 September, 2024. As per the Exchequer Receipt, Mr. Mushobozi paid the required fee on 20th September, 2024. It is true as reflected in the system that the applicant’s submission was received within the scheduling order. However, that does not mean, in my view, that the applicant filed his submission within the time, without payment of the requisite court fees. This is because as per Exchequer Receipt, the payment was made on 20th September, 2024 which is beyond the time set for filing his submission. I understand that the generation of control numbers is not within the parties’ scope. However, as per Rule 24 of the Judicature and Application of Laws (Electronic Filing) Rules, 2018 (GN No.148 of 2018), the applicant could

informally and exparte apply to the Registrar for appropriate relief, if for any reason, the electronic filing system was not operational. Having taken that position, I wish to restate the cardinal principle that the filing of the document before the Court is considered complete when the prescribed court fees are paid. As a matter of law, the coming 4 of the Rules was not meant to supersede the established principle that the filing of documents before the court is complete upon payment of court fees. In this, I am persuaded by the position taken by this Court in the case of Rex Investment Limited v. Mkombozi Commercial Bank, Commercial Reference No. 8 of 2013-HC (Unreported) where it was held: ‘On my part, I fully subscribe to the position taken by my learned Brethren in the above decisions. The reason for embracing the position is obvious and logical, that is, if physical filing of document does make the document properly filed before the Court unless the filing fee is paid, it naturally follows that electronic filing, which in my view, is a substitute of physical filing cannot constitute proper filing unless the filing fee is paid. See also the case of John Chuwa vs Anthony Ciza 1992 [TLR] 233.’ That being the case, I hold that the applicant’s failure to file the written submission within the stated time amounts to non-appearance. In the case of Shabani Amuri Sudi (The

Administrator of the Estate of the Late Amuri Sudi) v. Kazumari Hamisi Mpala, Misc. Land Application No. 30 of 2019, this Court had this to state: 5 ‘In fact, failure to file written submission on the dates scheduled by the court is as good as non-appearance on the date fixed for hearing. In P3525 LT Idahya Maganga Gregory Vs. The Judge Advocate General, Court Martial Criminal Appeal No. 2 of 2002 (unreported) the court held "It is now settled in our jurisprudence that the practice of filing written submissions is tantamount to a hearing and; therefore, failure to file the submission as ordered is equivalent to non- appearance at a hearing or want of prosecution. The consequences of failure to file written submissions are similar to those of failure to appear and prosecute or defend, as the case may be." So far as the case of Tanzania Venture Capital Fund Limited (Supra), the case is persuasive. In that case, I am not bound to follow the position stated in the said case as there are developments as seen in the case of Shabani Amuri Sudi (The Administrator of the Estate of the Late Amuri Sudi) (Supra) which I fully subscribe to. Fortified by that position, it flows naturally that the application is dismissed with costs for want of prosecution. It is so ordered. 6 Right To Appeal Explained. DATED at MWANZA this 30th of October, 2024.

KS KAMANA

JUDGE 7