Land Appeal 2547 of 2024 Judgment Mrisha J

IN THE HIGH OURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA LAND APPEAL NO. 2547 OF 2024 (Arising from the District Land and Housing Tribunal for Rukwa at Sumbawanga in Application No. 16 of2023) VICENT MATUMBILI........................................................................ APPELLANT

VERSUS MAWAZO UNYESE........................................................................ RESPONDENT

JUDGMENT 21st October & $h November, 2024 MRISHA, J. This is an appeal against the Judgment and Decree of the District Land and Housing Tribunal at Sumbawanga in Application Case No. 16 of 2023 pronounced on 19th January, 2024. The appeal originates from an application instituted by the respondent (the then applicant) against the appellant (the then respondent) seeking to be declared as a lawful owner of the disputed land, and any other relief the tribunal would deem fit to grant. i The District Land and Housing Tribunal (trial Tribunal) ruled in favour of the respondent. Disgruntled with the said decision, the appellant decided to prefer the instant appeal to this court. The appellant is armed with three grounds of appeal namely: 1. That, the trial District Land and Housing Tribunal erred both in law and fact when it failed to analyze properly the evidence on record and resulted it to reach at a wrong decision.

2. That, the trial District Land and Housing Tribunal erred both in law and fact when it did not take into consideration the evidence given by the Appelant and it ought not to have disbelieved the evidence of the Appellant who is a lawful owner ofthe said property.

3. That, the trial District Land and Housing Tribunal erred both in law and fact when it did not take into consideration the evidence given by SU1 and SM1 who proved the ownership ofthe suit property. Wherefore, the appellant prays to this court to allow the appeal, nullify and set aside the judgment and proceedings of trial tribunal. On 27th August, 2024 when the matter came for hearing, both parties prayed to argue the appeal by way of written submissions. The prayer was 2 granted and the Court scheduled the dates for each party to file his written submission, whereby the appellant was to file his submission in chief on or before 9th September, 2024; the respondent was to file his submission in reply on or before 23rd September, 2024 and rejoinder if any, from the appellant was to be filed on or before 30th September, 2024. When the matter was scheduled for mention on 21st October, 2024 for fixing of the judgment date, the appellant had not yet filed his submission in chief. He informed the court that he was unable to file the same because he was sick and orally prayed for extension of time. However, the appellant could not tell the court the specific dates in which he started become sick to the extent of not adhering to the court orders and also, he could not tender any documentary evidence like the medical shit to prove his sickness. As a result, the court made a finding

that the reason given by the appellant is not sufficient and thus, it denied to grant him extension of time withing which to file his written submission out of time. The respondent on the other hand, briefly submitted that he has not been served with a submission in chief by the appellant and after efforts made to the court 3 registry office, the respondent found out that the appellant failed to file his written submission in chief as the court ordered. He further submitted that failure to file submission is tantamount to non­ appearance on date fixed for hearing hence, he prayed to the court that this appeal be strike out with costs. To bolster his position, he cited the case of Monica Dickson v Hussein J. Wasuha (Kny Chama cha Wafanyabiashara) PC Civil Appeal No. 4 of 2019 where my learned sister Hon. Mongella, J. held that: “Failure to file written submission as ordered by the court is a manifestation offailure to prosecute the case. ” The respondent therefore wound up his submission by praying to this court to strike out the instant appeal with costs. In the present matter, it is on record that on 27th August, 2024 when this court ordered the matter to be heard by way of written submissions, both parties were present and agreed to file their submissions according to the court scheduled order. The appellant was ordered to file his written submission on or before 9th

September, 2024 which he failed to comply with. On the other side, the respondent filed his reply written submission 4 on time and prayed to the court to strike out appeal with costs for want of filing written submission. It is the position of the law that failure to file written submission as ordered by the court is a manifestation of failure to prosecute the case, as rightly submitted by the respond. Thus, failure to file written submission on the dates fixed by the court is as good as non-appearance on the date fixed for hearing. It was the wisdom of the highest Court of Tanzania in the case of Godfrey Kimbe v Peter Ngonyani, Civil Appeal No. 41 of 2014, where it was held, intel alia, that: “We are taking this course because failure to lodge written submission after being so ordered by the Court is tantamount to failure to prosecute or defend one’s case.” The same position was underscored in the case of Abisai Dawson Kidumba v Anna N. Chamungu and 3 Others, Misc. Land Application No. 43 of 2020 CAT Mbeya, in which the Court of Appeal observed that: ".... The law is settled to the effect that a case shall face dismissal for want of prosecution if a party fails to file his written submission on the date fixed by the Court.. Consequently, under the 5 circumstances, I dismiss the applicant's application with costs for want ofprosecution." The above being the position of the law, it is my settled view that failure of the appellant to file his written submission in chief as ordered by the court, amounts to failure to prosecute his case without notice on the day fixed for hearing and the remedy thereto is to dismiss the instant appeal with costs, for want of prosecution. Order accordingly. A.A. MRISHA

JUDGE 05.11.2024 DATED at SUMBAWANGA this 5th day of November, 2024. A.A. MRISHA

JUDGE 6