Masinde 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY

AT MUSOMA CIVIL REFERENCE NO. 13408 OF 2024

BETWEEN STEPH FIKIRI MASINDE...................................................................... APPLICANT

VERSUS JUMA ADAMU RYAKUKA.................................................................. RESPONDENT

RULING OF THE COURT 02/01/2025 & 16/01/2025 Kafanabo, J.: This is a ruling in respect of an application for reference arising from the decision of the Taxing Officer dated 08/05/2024 in Taxation Cause No. 000000446 of 2024 between the parties herein. The application is made by chamber summons supported by an affidavit of the Applicant. The substance of the Applicant's prayers is as follows: i. The court be pleased to examine by reference the decision of the Taxing Officer dated &h day of May 2024, in Taxation Cause No. 000000446 of2024 to see its legality and fairness of taxation. ii. The cost be provided for. Hi. Any other reiief/order (s) as the court may deem just and fit to grant. i However, before the said application could be heard on merits, the Respondent, on 29th July 2024, raised a preliminary objection which was heard and dismissed on 21/11/2024. Thereafter, on the same date (21/11/2024), and in the presence of both parties, the Court ordered that the application for reference be disposed of by way of written submissions. The Applicant was ordered to file his written submissions on 05/12/2024. The Respondent was to file reply submissions on 19/12/2024 and rejoinder submissions by the Applicant, if any, were to be filed on 02/01/2025. The ruling was scheduled on 16/01/2025 at 10.00 a.m. However, the Applicant did not file his submissions in support of the application

as ordered by the Court or at all. It followed that on 10th December 2024, the Respondent wrote a letter to this Court notifying the Court that the Applicant had failed to file his submissions according to the order of the Court and thus prayed for dismissal of the application. The obvious question that follows is what is the status of the application before the Court? It is trite law that failure to file written submissions in support of the application amounts to failure to prosecute the same. See the cases of Tanganyika Motors Ltd & 4 Others and Bahadurali Ebrahim Shamji, Civil Application No. 65 of 2001 (unreported), Salum Mohamed vs Bakari Suleiman Yombe, Civil Appeal No. 160 of 2004 Said (unreported), Buyamba M. John vs. Adili Bankorp Ltd & Another, Civil Case No. 146 of 2000 (unreported). Also, the Court of Appeal in the case of Godfrey Kimbe vs Peter Ngonyani (Civil Appeal No. 41 of 2014) [2017] TZCA 1 (25 July 2017-Tanzlii) observed that: 2 "In the circumstances, we are constrained to decide the preliminary objection without the advantage of the arguments ofthe applicant. We are taking this course because failure to lodge written submissions after being so ordered by the Court, is tantamount to failure to prosecute or defend one's case- see: National Insurance Corporation of (T) Ltd & another v. Shengena Limited, Civil Application No. 20 of2007 and Patson Matonya v.

The Registrar Industrial Court of Tanzania & Another, Civil Application No. 90 of 2011 (both unreported). In both cases, among many others, the Court held that failure by a party to lodge written submissions after the Court has ordered a hearing by written submissions is tantamount to being absent without notice on the date of hearing. In the Shengena case, for instance, we observed: "The Applicant did not file submission on due date as ordered. Naturally, the court could not be made impotent by a party's inaction. It had to act. ... it is trite law that failure to file submission(s) is tantamount to failure to prosecute one's case." In light of the foregoing, since the Applicant failed to file his written submissions in support of the application as ordered by the Court, and given that the Court should not be rendered impotent by the inaction of a party, it is obvious that the Applicant failed to prosecute his application. Under the circumstances, this application for reference is hereby dismissed. Since it was the application for reference challenging the costs ordered by the taxing officer, each party shall bear their costs. 3 It is so ordered. Dated at Musoma this 16th Day of January 2025. K. I. Kafanabo Judge The ruling was delivered in the presence of the Applicant and Japhet Pima Nyakutonya (donee of the power of attorney) for the Respondent. K. I. Kafanabo Judge 16/01/2025 4