ABUBAKARI V KIKUNDI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA PC CIVIL APPEAL NO. 5297 OF 2024 ABUBAKARI SEFU.......................................................................... APPELLANT VERSUS KIKUNDI CHA WANAMALA C/O MNYALA ZACHARIA MWENYEKITI WA KIKUNDI........................................ RESPONDENT JUDGMENT 24/7/2024 & 26/8/2024 ROBERT, J This is an appeal against the decision of the District Court of Sengerema in Civil Appeal No. 32 of 2023, dated 2nd January 2024. The appellant, Abubakari Sefu, challenges the decision of the District Court which had affirmed the decision of the Primary Court of Nyehunge. The Primary Court had ordered the appellant to pay the respondent, Kikundi cha Wanamala, a sum of TZS 18,000,000/=, alleging mismanagement of funds by the appellant, who was then the group treasurer. i The respondent, Kikundi cha Wanamala, represented by their Chairman, Mnyala Zacharia, initiated a claim at the Primary Court of Nyehunge, alleging that the appellant, while serving as the group's treasurer, caused a loss of TZS 18,000,000/=. The Primary Court found in favor of the respondent, ordering the appellant to make the payment. The appellant's subsequent appeal to the District Court of Sengerema was dismissed, leading to this second appeal. The appellant's grounds of appeal are: 1. That the District Court erred in law and fact by dismissing the appeal without considering that the respondent lacked the capacity to sue. 2. That the District Court erred in law and fact by failing to re-evaluate and analyze the evidence properly, leading to a miscarriage ofjustice. Submitting in support of the appeal, Counsel for the appellant, Erick Katemi, argues that the District Court of Sengerema erred in law and fact by dismissing his appeal without considering the respondent's lack of legal capacity to sue. He contends that "Kikundi cha Wanamala", a social group, is not registered under any relevant laws such as the Cooperative Societies Act, Cap. 211 R.E. 2002, or the Kanuni za Huduma Ndogo za Fedha (Vikundi vya Huduma Ndogo za Fedha za Kijamii, G.N. 997/2019). Consequently, the group lacks the legal standing (locus standi) to institute legal proceedings in 2 its name. He cited the case of Kikundi Cha Tupendane v. Rozi Menema, PC Civil Appeal No. 35 of 2022, HC (unreported) to support this argument. He contends that without registration, the group had no locus standi to sue. Additionally, the appellant argues that there was no evidence of the group's constitution or authorization for Mnyala Zacharia to represent the group in the legal proceedings. The absence of these documents, he asserts, undermines the legitimacy of the suit. In response, Counsel for the respondent, Yonna G. Shekifu, argues that the challenge to the group's capacity to sue is a tactic to evade justice. He claims that the group, although unregistered, was represented by its chairman, Mnyala Zacharia, and that the appellant, as a member, was bound by the group's decision to sue. He maintained that the issue of registration is not pertinent as the dispute was internal, involving group members and not with an external party. He cited the case of The Registered Trustees of Islamic Propagation Centre (IPC) vs The Registered Trustees of Thaaqib Islamic Centre (TIC), Civil Appeal No. 2 of 2020, CAT at Mwanza (unreported) to argue that an unincorporated group can still undertake legal actions through its office bearers. 3 The court's task is to determine whether the respondent, Kikundi cha Wanamala, had the legal capacity to sue the appellant in the Primary Court of Nyehunge. The appellant's argument is rooted in the legal principle that an unregistered entity generally lacks the capacity to sue in its own name. While it is acknowledged that the absence of formal registration may not automatically invalidate a claim, particularly in cases involving internal disputes among members of an unregistered group, the legitimacy of such a claim hinges on the existence of the legal entity and the legal standing of the representative. This requires that the representative's authority aligns with the group's internal procedures and agreements. However, in this case, the respondent's ability to represent the group, despite the group's unregistered status, is being challenged. The appellant asserts that the chairman, who purported to act on behalf of the group, failed to produce the group's constitution or any document that could establish its existence or prove his authority to initiate legal proceedings. This lack of documentary evidence raises significant doubts about the legitimacy of the suit. The respondent did not tender the constitution of Kikundi cha Wanamala, nor did they present any documentary evidence establishing the 4 existence of the group, the identity of the group's members or their consent to the legal proceedings. This omission is significant because it leaves unanswered whether the members of the group were bound by the decision to initiate legal action and whether they would be bound by the court's decision. Rule 13 of the Magistrates' Courts (Civil Procedure in Primary Courts) Rules indeed allow for proceedings by or against a firm in the name of its partners or the firm itself. However, this rule presupposes the existence of a firm and the authority of the person representing it. In the absence of evidence to confirm the existence of Kikundi cha Wanamala as a legal entity capable of suing or the authority of its chairman to represent the group, the proceedings initiated by the respondent are questionable. Moreover, the respondent's reliance on the principle that an unincorporated association's rights and obligations are enforceable among its members does not address the procedural requirement of proving the authority to sue. The case cited by the respondent, The Registered Trustees of Islamic Propagation Centre (IPC) vs The Registered Trustees of Thaaqib Islamic Centre (TIC) (supra), is distinguishable, 5 as it pertains to contractual obligations within an unincorporated association, whereas the present case concerns the standing to sue. Having considered the arguments and evidence presented, this Court finds that the suit initiated by the respondent, represented by the chairman of Kikundi cha Wanamala, is fatally defective due to the lack of legal standing. The respondent failed to produce any constitution or document establishing the existence of the group and did not sufficiently demonstrate the chairman's authority to sue on behalf of the group. Consequently, the Court allows the first ground of appeal and hereby quashes and sets aside the decisions of the District Court of Sengerema in Civil Appeal No. 32 of 2023, as well as the Primary Court of Nyehunge in Civil Case No. 59 of 2023. In light of this finding, the Court sees no necessity to address the second ground of appeal. The suit is hereby struck out. The respondent retains the liberty to institute fresh proceedings against the appellant, provided that the group's legal status is properly established and the proper legal procedures are adhered to. No order as to costs. It is so decided. 6 7