Civil Appeal 10884 of 2024 Judgment MrishaJ

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF SUMBAWANGA AT SUMBAWANGA CIVIL APPEAL NO. 10884 OF 2024 (Arising from the decision ofthe District Court ofSumbawanga in Civil Appeal No. 389 of2024 and originated from Mtowisa Primary Court in Civil Appeal No. 71 of 2023) REGINA ATHANAS @KADILI...................................................... APPELLANT versus JANUARI JACOB @NAMALOZO............................................... RESPONDENT JUDGMENT 31ss October,2024 & 10th February 2025 MRISHA, J. The appellant in this appeal, filed the same in order to urge the court to allow her appeal with costs, overturn the decision of the District Court of Sumbawanga henceforth the first appellate court, which she believes to be wrong, and grant any other relief as it will find fit, just and proper. Her three grounds petition of appeal allege that the first appellate court erred in law and in fact to reverse the decision of the trial court namely 1 Mtowisa Primary Court which according to her, was well reasoned based on evidence adduced before that court. The second allegation is that the first appellate court erred in law and fact to order the appellant to pay the dowry price whilst there was no proof of such agreement save for preliminary payments known as „kishika uchumba', and the third, is that the first appellate court erred in law and in fact for improperly re-evaluating th nce adduced before the trial court in disregard of appellan as heavier than that of the respondent. W On his part, the respondent contested the instant appeal by filing a reply to the appellant's of which he prayed for the court to dismiss tl for want of merits, upheld the decision of the first appellate court and grant any other relief as it will deem fit to grant. When the matter was called on for hearing, both parties agreed that the appeal be heard by way of written submissions. Per the court's order, the appellant who enjoyed the legal services of Mr. Samwel Kipesha, learned advocate, had to file her written submission on 13.08.2024 and the respondent who appeared in person, legally unrepresented, had to file his reply written submission on 20.08.2024. 2 The records indicate clearly that it is only the respondent who complied to the said court order by filing his reply written submission, as per the scheduled court order. Neither the appellant, nor her advocate filed her respective written submission in support of the present appeal and, despite the records showing that on 31.10.2024 the appellant and Ms. Lucy Sigula, also learned advocate who was ing brief of the appellant's counsel, were present in court, no arreted why the appellant's written submission was filed p court's order, or even praying for extension of ti t It is obvious that the gist of ent appeal by the appellant is to challenge the de appellate court which upon hearing the r de d the trial court's decision and consequently llant to pay dowry of Tshs. 2,155,000/= whic is ed ave promised to pay the former after her son t the fo r's daughter and started cohabiting with her as husband an Basically, the court would have been moved properly had the appellant filed her written submission on the date scheduled by the court and not to stay idle, expecting the court to deliberate on the matter and determine the same as she has prayed in her petition of appeal. 3 It is important to note that since by the consent of both parties, the matter was to be heard by way of written submissions, one would have expected both of them, including the appellant who is obvious part to this appeal, to comply with the court order by filing their respective legal documents because filing of a written submission is as good as entering appearance before the court on the date set for hearing of the appeal. It follows, therefore that failure to file written submission on the date fixed by the trial court, is tantamount to failure to appear before the court and the consequence thereof, is nothing, but to dismiss the appeal for want of prosecution. (See: Clemence Ipanda (As Administrator of the estate of the late Yona Ipanda) vs Nasary Nathaniel Mushi, Misc. Land Appeal No. 2 of 2019 and Abisai Damson Kidumba v. Anna N. Chamungu and 3 Others, Miscellaneous Land Application No. 43 of 2020 District Registry of Mbeya at Mbeya (both unreported). In Abisai Damson Kidumba (supra), it was observed that: “...The law is settled to the effect that a case shall face dismissal for want ofprosecution ifa party fails to file his written submission on the date fixed by the Court... Consequently, under the 4 circumstances, I dismiss the applicant's application with costs for want ofprosecution". In the same spirit, since it has been observed, as shown above, that without any justifiable reasons, neither the appellant, nor her counsel took some efforts to comply with the court order by filing the appellant's written submission, as it can also justified on electronic Case Management System @eCMS which does n ie ritten submission by the appellant, the pre nd to be dismissed and I hereby dismissjtwi prosecution. It is so ordered. SHA JUDGE .02.2025 DATE t SUM ANGA this 10th day of February, 2025. A.A. MRISHA JUDGE 10.02.2025 5