salum said mponda vs blandina francis muhiginongwa 2023 tzhc 22325 31 october 2023

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY) AT MORQGORO LAND APPEAL NO. 28 OF 2023 (Originating from Land Appeal No. 143 of2020, In the District Land and Housing Tribunalfor Morogoro, at Morogoro) BETWEEN SALUM SAID e^PONDA .APPELLANT VERSUS BLANDINA FRANCIS MUHIGINONGWA, .RESPONDENT RULING 25"^ Aug, & 31" Oct, 2023 M.J. CHABA, J. '^ The instant appeal is born out of the decision of the District Land and Housing Tribunal for Morogoro, at Morogoro (the DLHT) in Land Appeaj No. 143 of 2020. A brief factual background of the matter as garnered from the Court's record depicts that: At Kisawasawa Ward Tribunal, the appellant (Salum Said Mponda): sued Blandina Francis Muhiginongwa over a parcel of Land, at the culmination of full trial,,the trial Ward Tribunal arrived to the final verdict in favour, of the respondent. . Aggrieved by that decision, the appellant preferred an appeal to the DLHT vide Land .Appeal No.143 of 2020, wherein the DLHT upheld the decision of the-trial Ward Tribunal which in turn didn't satisfy the appellant, hence this appeal. To exhibit his grievances; the appellant advanced Tour grounds of appeal, to wit: : ■ Page 1 of8 ■ '■ 1. The District Land and Housing Tribunal erred in Law and in facts for failure to declare the appellant as the rightful owner of the land in dispute. 2. That, the District Land and Housing Tribunal erred in law and facts to award the judgment in favour of the respondent in which in the circumstances the District Land and Housing Tribunal blessed the irregularities made by the Ward Tribunal at Kisawasawa to decide the suit Land Case No. 5 of 2020 when was improperly constituted in terms of women representative members. 3. That, the District Land and Housing Tribunal erred in law and upon facts for failure to consider re-assessment, reevaluation and analyze the evidence of the trial Ward Tribunal and the submission by the appellant in the Land Appeal No. 143 of 2020. 4. The District Land and Housing Tribunal erred in law and upon fact in not considering a long possession and occupation of a land in dispute of which the appellant owned a land in dispute for 40 years. Based on the above grounds of appeal, the appellant prayed the Court to allow the appeal, order that the judgement of the DLHT for Morogoro, at Morogoro be set aside, the appellant be declared as the lawful owner of the suit land, and award any other reliefs that this Court may deems fit and just to grant. ■ When the matter was called on for necessary orders on 25^*^ August^ 2023 both parties appeared -in persons, and unrepresented. By conserisusyparties agreed tb arguePhd dispdsed;of the appeal' by way of'written submissions. Page 2 of 8 ' According to the Court's scheduled order, the appellant was supposed to file his written submission in chief in support of the appeal on or before 08/09/2023, the respondent had to file his reply thereto on or before 22/09/2023 and the rejoinder (if any) had to be filed by the appellant on or before 29/09/2023. The judgement was scheduled to be delivered on 27/10/2023. The implementation of this Court order was that, the appellant did not file any submission. On her part, the respondent filed her reply and I am inclined to ask myself as where did the respondent's reply relied from. I say so because, there is nothing in the'Court's record showing that the ajDpellant did anything in pursuit of prosecuting his case, like applying for extension of time to file his submission. As such, there was npn-prosecution of the appellant's appeal as ordered.-by the Court upon the parties'consensus. - From the foregoing, the fundamental question for consideration and determination in this appeal is this; what is the effect-of failure to file written submission as'ordered by the Court. It is a trite law that, failure to file written submission when ordered to do so.by the Court, constitutes one's waiver to his or her right to be heard and non-prosecution of the case, appeal or even an application. In Monica Dickson Vs. Hussein J. Wasuha(KWY CHAMA CHA WAFANYABIASHARA),..PC, Civil Appeal .No. 4 of 2019 (unreported), it was held//7te/:"<^//5 that: . . Page 3 of 8 "It is a settled legal principle that the failure to file written submission as ordered by the court Is a manifestation of failure to prosecute the case. Failure to file written submission on the dates scheduled by the court is as good as non appearing on the date fixed for hearing".[Emphasis added]. Similar position was underscored by the Court of Appeal of Tanzania in the case of Director of Pyblic Prosecutions Vs. Said Saleh Ali [2018] TLR 131 (CA), where the Court had the following to state: ' "Before we conclude our decision, we think It Is worthy note that arguing on application/appeal by way of written submission Is synonymous with presenting oral submission before the court. Thus, if a party fails to file his/her submission on a scheduled date it is equated as if he/she has failed to appear on hearing date with a consequence of dismissing the matter before a court".[Emphasis added]. Equally, this Court in the case of Harold Maleko Vs.'Harry Mwasanjala, DC Civil Appear No: 16 of 2000,(HC-Mbeya, Unreported), had this to say: - "I, hold, therefore that the failure to file written submission inside the time prescribed by the court order was inexcusable and amounted to failure to ■ Page,4of8. , „ prosecute the' appeal. AcGordirigly, the appeal is dismissed with'costs.''[BPid Is mine]! ' ' ' In line with the above cited cases, it is a settled position of the law that, 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 this appeal, it is apparent that the appellant failed to submit his written submission on the date fixed as per Court's scheduled orders and did not bother to come before the Court and apply for an extension of time to file the same. . .. , ■ ■ Having so'stated'the fegal principles;-1 now move'to'the nekt question for detefmihatiod which is, wha^^ the effect of non-appearance by the appellant oh-the date fixed for hearing, the answer is not far-fetched. According to the provision of the law under Order XXXIX, Rule 17(I) of the Civil Procedure Code, [CAP. 33, Pt E: 2019] which is the guiding provision of the law for failure to abide by the. dates scheduled, by.the Court on filing the submissions, provides ' ' "Where oh the day fixed or on any other day to which the ■ - hearing may. be''adjourned, the appellant''does riotv appear when the appeal is called on for hearmg,the : Court nia^ niate an order that; the appeal, be dismissed". , Page 5 of 8 Incontrovertibly, this Court finds that, the appellant has failed to appear and prosecute his appeal. Guided by the above legal position, I would therefore hammer the appeal by issuing an order for dismissal of the same for want of prosecution. However, today On the October, 2023 I decided to summon both parties and inquire from the appellant as to why he failed to comply with the Court's scheduled order..In. reply, the appellant was open and narrated that though he managed,,to :pt:epare his submission in . chief and served the respondent on ,time who.in,turn filed,reply to his submission in chief within time, but he,forgot to file the same in Court., ^ ■ He averred^ that, being a layperson, he thought that the^sanno had^to be filed'together with the rejoinder.- He stressed that, though he was informed aboud'co'mpiiahcd' Of the' Court's sdheduling drderS but 'he found himself cohfused'anddduld hot uhderstahd that such'dubmiSsibn'Was dup to be filedHn 'this GoiJrt. He therefore prayed the Court not to dismiss the appeal as he did,.not/deliberately,.fa!j;,tp lodge, his submission; in-chief in .support of his appeai.r On the other hand,,the.respondentdad;nothing-to Gonnmant. , 'Having considered the- appellant's submissidn and upon cbhsiderihg his physical'' appearance,• dehiaahout-dnd' furthei-' takihg Mhto' aCcbuht- that He cdrreCtif prepared his submiSSionHn dhief and^ served the raspondent on time but forgot to-fiy■ W dame in this^Court, I find that the appellant's failure to lodge'his- subrhiSSid^f^^^^ as ordered by the Court- was tiOt'caUsed 'by negligence, apathy:pr daiiperately.;-: m; ., yrr Pag&6 of S"- ' ' ' ' "■ - ■ ■■ " In the circumstance, I have decided to exercise my discretionary powers not to dismiss the appeal but to struck out with no order as to costs. If the appellant still wish to pursue for his right, he is at liberty to lodge his appeal but subject to the law governing time limits to institute the intended appeal. I so order. Dated at Morog^oqjE^is^:^^'^ day of October, 2023 M Ghaba 31/10/2023 Court: Ruling delivered under my hand and the Seal of this Court in Chamber's, this 31^' day of October, 2023 in the presence of the Appellant who appeared in persons, and unrepresented and "iin the; presence of Mr. Selernani Saidi Mchapangozi who appeared on behalf of the Respondent. MY'I. ia /'JUDGE 23 Page 7 of 8 Court: Rights of the parties to appeal to the CAT is fully explained. M'. J. Chaba vi\ .f 'J 1' ■ Page 8 of 8