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IN THE HIGH COURT OF TANZANIA MOROGORO SUB-REGISTRY AT IJC MOROGORO PC MATRIMONIAL APPEAL N0.23 OF 2023 (Arising out of Matrimoniai Appeai No.09 /2023 in the District Court of Kilombero which originated from Matrimoniai Cause No. 13/2023 in Mang'ula Primary Court) TATU HAMIDU HOLEA APPELLANT VERSUS JOSEPH ZEBEDAYO RESPONDENT JUDGEMENT 2"" of April,2024 & IS"* of May, 2024 MANS00R,3. On 20^^ February, 2023, the appellant herein instituted the Matrimoniai Cause No 13 of 2023 against the appellant at the Mang'ula Primary Court herein referred to as "the trial court" claiming for divorce, division of matrimonial properties as well as custody of their children born out of their union. As gleaned from the trial court's judgment, the court after the conclusion of the hearing dissolved the, established presumed marriage that existed Page 1 of 8 between the parties, ordered for division of the matrimonial house at the. rate of 50% and placed the custody of the child one Jackllne Joseph Lawi to the appellant with an order that the respondent be required to pay a sum of 30,000/= monthly for her maintenance. Dissatisfied, the respondent herein successfully preferred an appeal to the District Court of Kilombero vide Matrimonial Appeal No 09 of 2023 which quashed and set aside the orders of the trial court as regards to the division of the matrimonial assets on the ground that the same were reached without the evidence as to the proof of contribution of the two parties in their acquisition^ Expressing her grievances towards the decision of the first appellate Court, the appellant has channeled to this court the following grounds of appeal as stated hereunder; 1. That the lower court magistrate erred in iaw and in fact in not regarding that he was very biased in the hearing of the case to the extent of taking the part of the respondent's Counsel and ; - some cheating knowingly that he is the presiding magistrate. Annexure "A"copy ofthejudgment Page 2 of 8 Z That the lower appellate court magistrate erred In the law and In fact for Ignoring prayer sought by the respondent through his Advocate Josephine Mbena ofElite Esquires^ Instead he granted in favor ofthe respondent what he did notprayfor In his appeal, also was nota prayer ofthe present appellant who then was the respondent 3. That the lower court magistrate erred In the law and In fact In hearing and determining the case by contravening the Principle of Natural Justice, the right for fair hearing which was denied to the appellant for not considering his evidence. 4. That the lower court magistrate erred In law and In fact for ordering retrial of the case In a bias way just because the respondent did not show and prove If he had any material contribution in acquiring the matrimonial house, but the appellant clearly did show and proved her contribution on that. 5. That the lower court magistrate erred in law and in fact In not regarding that failure of the respondent to prove If he contributed much In acquiring the said house does not require quashing the lower court decision as he did and to order for re- Page 3 of8 trial, knowingly thatthe appellant on her side has clearly proved It 6. That the lower court magistrate erred In law and In fact In not regarding that a prayer sought by the respondent In his appeal Is a serious thing and a very big one which leads the court towards Its rightful consideration and decision of the matter, likewise the prayer from the opposite side; further a courtIs not the mother to grant whatIs notprayed for by any ofthe parties. 7. That the lower court magistrate erred In law and In the fact In not regarding that the prayer sought by the respondent In his appealstated at least In four(4)lines was not a typing error but a dear prayer by the respondentand ought to be honored by the presiding magistrate. 8. That the lower court magistrate erred In law and In fact In disregarding that the said prayer was done by the respondent counsel who Is the learned brother obliged to proof -read the . i '■ : . '■ i ■ legal documents which were prepared before she can sign and submit It to the court. Page 4 of 8 9. That the lower court magistrate erred in the law and In fact In notregarding thatifthe said criminalreliefssoughtfor his appeal was not intended, the learned counsel for the respondent never prayed for an order for withdrawaland refiie his appeal orfor an order to amend his appealdespite the challenge on this made by the appellant which was dishonored by the court. 10. That the lower court Magistrate erred in law and in fact in not regarding that among the (5) grounds of appeal listed by the respondent there were no ground which stated that 'the parties did notshow and prove contribution ofeach in acquiring the said house, but that court erroneously discussed that from nowhere and reiied on it to determine the same knowingly that the appellant clearly showed and proved her said contribution; the records are evident. On the date the appeal was tabled before me for hearing, the appellant appeared In person with no legal representation whereas Ms. Alfa Sikalumba, the learned advocate appeared in court holding brief of Ms. Josephine Mbena, learned counsel for the respondent. The court ordered the appeal to be conducted,through written submissions in the following scheduling orders Page 5 of 8 dated 2"^ April/ 2024; the appellant's submissions in chief were to be filed on or before 15/04/2024, the respondent's reply submissions were to be filed on or before 29/04/2024 whereas the appellant's rejoinder if any, by 07/05/2024. However, according to the records of the appeal, for reasons better known to herself the appellant who was personally present before the court on 2"^ April 2024 when the scheduling orders were made has not submitted/her submissions in chief in support of the appeal as neither In the physical file nor in the electronic case management system are her respective submissions found. Notably, her omission has also been evidenced by the respondent who through his reply submissions complained of not being served with the appellant's submissions in chief. That said, it is without flicker of doubt that Ms. Tatu Hamidu, the appellant herein has failed to prosecute her appeal as it is a common knowledge that the appellant's failure to file the written submission equals to her non appearance on the date fixed for hearing of the same. In this, I am inspired by the holding of this court in the case of Brighton Mponji(Administrator of the Estate of the iate Theodora Masheyo) Versus Simon Pauio, Page 6 of8 Misc. Land Case Application No. 708 of 2020 (Unreported) at page 3 where it was observed; ''Filing written submissions are tantamountto a hearing and;therefore^ failure to fiie the submission as ordered is equivalent to non- appearance at a hearing or want of prosecution. The attendant consequence offailure to file written submissions is similar to those of failure to appear and prosecute or defend^ as the case may be.f Equally, this court in Abisai Damson Kidumba vs Anna Chamungu and 3 Others, Misc. Land Application 43 of 2020 (Unreported) at page 2 underlined thus; "in factIagree with Ms. Kasebwa thatfailure to file written submission on the dates scheduled by the court is as good as non-appearing dn the date fixed for hearing and need not overemphasize. The applicant and his advocate failed to submit their written submission on:the date fixed. They aiso failed to seek indulgence of the court to extend the time if there was good reason for not adhering to the court orders. As decided in the cases cited by Ms. Kasebwa, the iaw is settled to the Page 7 of8 effect that a case shallface dismissalfor want ofprosecutlori ifa paiiy falls to file his written submission on the date fixed by the court". Having the foregoing holdings In my mind which I fully subscribe to, its my firm deliberation that the appellant has failed to prosecute his appeal. From the aforesaid, I dismiss the appellant's appeal. Basing on the nature of the dispute between the parties, I make no orders as to costs. It Is so ordered. DATED AND DELIVERED AT MOROGORO THIS 16™ DAY OF MAY, .2024 0^ 4% L. MANSOOR, lii JUDGE 16.05.2024 Page 8 of8