Civil Appeal 2 of 2022 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CIVIL APPEAL NO. 2 OF 2022 (Arising from ofthe District Court of Sumbawanga in Revision No. 1 and originated from the decision of Sumbawanga Urban Primary Court in Civil Case No. 172 of 2020) AGRIPINA BENEZETH KATONKOLA............................................ APPELLANT VERSUS SUMBAWANGA WOMEN ADVANCEMENT ASSOCIATION (SWAA)..................................................................................... RESPONDENT JUDGMENT 10th & 16th October, 2024 MRISHA, J. The genesis of the dispute between the parties to this appeal, stem from the proceedings of the Urban Primary Court of Sumbawanga (the trial court) in Civil Appeal No. 172 of 2020 and the District Court of Sumbawanga at Sumbawanga (the first appellate court) in Civil Revision No. 1 of 2022. Thus, in order to understand it well, it is crucial to appreciate the following facts as they can be derived from the records of 1 both the trial and the first appellate courts whose casefiles were brought to this court for it to use them in the course of dealing with the present appeal. The appellant approached the respondent and applied for a loan. Upon fulfilling the loan conditions, she was given a loan of Tshs. 20,333,000/=. The said loan was advanced to the appellant on 03.03.2014 and, according to the loan agreement, she was supposed to reimburse the same figure to the respondent on 30.07.2014, but she defaulted. Instead, she promised to pay the said loan on January, 2020 after being paid her retirement benefits, but again, she did not fulfil her promise. Having seen that the appellant was showing no signs of paying her debt, on 09.11.2020 the respondent sued her in the Urban Primary Court of Sumbawanga (the trial court) vide Civil Case No. 172 of 2020 with a view to claim the said unpaid loan amount. However, the appellant claimed to have been sick, thus caused the matter to be adjourned for several days until on 08.12.2020 when the appellant sent her daughter one Ikupa Aliko Kipagile to represent her in the proceedings held by the trial court. Upon receiving the letter introducing that appellant’s representative, the trial court proceeded 2 with the matter under section 33 (2) of the Magistrate’s Courts Act, Cap 11 R.E. 2019. It followed that upon the respondent’s claim being read over and explained to her in a language she was conversant with, the appellant through her representative, admitted that claim and informed the trial court that she had already paid the respondent Tshs. 6,000,000/= as part payment for the debt of Tshs. 20,333,000/=. Thereafter, the trial court adjudged the appellant to pay the respondent the sum of Tshs. 20,333,000/=, but after considering the fact the sum of Tshs. 6,000,000/= had already been paid to the respondent through a court clerk, it ordered the appellant to pay the unpaid debt of Tshs. 14,333,000/= to the respondent within a period of three (3) months counting from 16.12.2020. The records of the trial court reveal that the appellant failed to comply with that court order, thus prompted the respondent to institute the execution proceedings with the trial court in order to get the remaining amount through attachment of the applicant’s Nmb Account. The application was granted ex parte under Rule 62 of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules, GN No. 310 of 1963 henceforth the Magistrate's Courts (Civil Procedure in Primary Courts) 3 Rules. Thereafter, the trial court ordered the Nmb Bank to deduct the sum of Tshs. 14,330,000/= from Nmb Account No. 62102404781 of the appellant and remit it to the judiciary execution account. However, it appears from the said records that the said Bank failed to execute that order due to the fact that the appellant was also indebted by other creditors and the only source of income to pay that other debt, was through her pension fund. Following what transpired at the trial court, as indicated above, the appellant decided to challenge the decision of the trial court by filing Revision No. 1 of 2022 with the first appellate court seeking among other things, for the said court to call for and examine the records of the trial court in order to satisfy itself as to their correctness, legality and propriety. The matter was heard by way of written submissions and both parties complies with the scheduled court order requiring them to file their respective written submissions. In the end, the first appellate court refrained from faulting the decision of the trial court and proceeded to dismiss the said application without costs for being devoid of merits. Disgruntled, the appellant rushed to this court with which she filed a three ground Petition of Appeal urging the court to allow her appeal with 4 costs, quash and set aside the decisions of the two lower courts and grant her any other relief as it will deem fit and proper. Her case is that the trial magistrate erred (sic) law and fact for the failure to analyse and evaluate the evidence adduced by the parties. That the magistrate erred in law and fact by upholding the decision of the trial court and that the magistrate erred in law and fact for failure to consider the irregularities occurred in the trial court. By consent of parties, the matter was heard by way of written submissions and filed their written submissions on time. Regarding legal representation, both parties enjoyed the legal services of Mr. Peter Kamyalile, for the appellant, and Mr. Baltazar S. Chambi for the respondent, both learned advocates, save that Mr. Chambi was only retained for drafting the respondent’s written submission in reply to the petition of appeal. Before making his submission, Mr. Kamyalile dropped the first ground of appeal and indicated that he would submit on the rest grounds of appeal to wit; ground 2 and 3. Initially, the appellant’s counsel argued that this appellate court is duty bound to take judicial notice of matters of law relevant to the case even if such matters are not raised in the 5 memorandum of appeal, but without citing any authority to back up his argument. Apart from that, the learned counsel submitted that the superior courts have the additional duty of ensuring proper application of the law by the courts below where the lower court may have not observed the demands of any particular provision of the law. Reliance was made to the case of Adelina Koku Anifa and Another vs Byarugaba Alex, Civil Appeal No. 46 of 2019 [2019] TZCA 416 [4th day of December, 2019 Tanzlii]. Based on the above foundation, the appellant’s counsel submitted that the District Court failed to consider illegality that the complainant/respondent lacked the legal personality and locus stand to initiate the case against the appellant because the records do not show if the complainant/respondent is a trustee, association, company, or possessing a business name in order to know her legal personality. He also argued that in law, it is only a natural person or juristic person who can sue or be sued. He added that legal personality is always acquired through operation of the law and by virtue of being incorporated, registered or declared through various pieces of 6 registration and it must be established at the time of filing the suit and not at the later stage. To bolster the above argument, the appellant’s counsel cited a number of authorities, including Change Tanzania Limited vs Registrar Business Registration & Licencing Agency (Civil Appeal No. 3 of 2021) [2023] TZCA 17598 (5 September, 2023), Fort Hall Bakery Supply Company vs Fredrick Muigai Wangoe (1959) EA 474, Umoja wa Wajasiliamali Soko la Vikungu vs Mwajabu Abdallah Jongo and Others, Land Case No. 110 of 2020 and Evarister Kajuna vs Thereza Jacob [1973] LRT No. 10. Another argument from him was that the District Court failed to consider illegality that the order/awards/decree issued by the said subordinate court, was not executable for the same reason that the respondent does not legally exist. He added that since the respondent is a wrong party, the trial court decision is not executable in the eyes of the law. He cited the case of Ilela Village Council vs Ansaar Muslim Youth Centre and Another, Civil Appeal No. 317 of 2019 [2021] TZCA 181 (7 May, 2021) Tanzlii, to cement his stance. 7 Finally, Mr. Kamlyalile argued that the District Court failed to consider illegality that the appellant was not dully served with the summons on application for execution hence denied her the right to be heard. In amplifying his argument, the learned counsel referred the court to the case of Pathec Limited vs Juma Lukinda Majegelo (Civil Appeal No. 42 of 2022) [2023] TZHC 16274 (3 March 2023) in which the High Court, inter alia, emphasized that the service of summons must be in strictly adherence to the rules set by the law in order to protect the parties from being denied the right to be heard. Having done so, the appellant’s counsel submitted that despite the fact that the records of the trial court depict that on 14.04.2021 the said court issued a summons to the appellant, the said summons was not served to the appellant in compliance with Rule 19 (2) of the Magistrates’ Courts (Civil Procedure in Primary Courts) Rules, GN No. 310 of 1964. He was thus, of the view that the omission violated the rules of natural justice on the part of the appellant. In conclusion, Mr. Kamlyalile urged the court to quash both the ruling of the District Court and decision of the trial court and set them aside with costs. The respondent on her side, strongly contested the above prayers and proceeded to argue against them in the following manner. 8 She began by relying on the principle of law that being a second appellate court, this court can rarely interfere with the concurrent findings of fact by the courts below if on the face of records, it appears to it that there were mis directions or non-directions on the evidence by the first appellate court and come up with its own findings, as it was stated in the case of Peters vs Sunday Post Ltd [1958] E.A 424, DPP vs Jaffer Mfaume Kawawa [1981] TLR 149 and Salum Mhando vs Republic [1993] TLR 170. Arguing about the complaint that the district court failed to consider illegality that the complainant/respondent lacked legal personality and locus stand to initiate the case, the respondent contended that such ground is an afterthought for being new as it was not raised by the appellant at the first appellate stage; hence, ought to be disregarded as the appellant had a chance of raising her objection in the lower court. In cementing the above position, the respondent cited the case of Hassan Bundala @Swaga vs Republic, Criminal Appeal No. 386 of 2015. Based on the above authority, the respondent submitted that such ground is devoid of merit as it was not canvased at the first appellate stage and determined by the trial court or at the first appellate court, thus it cannot be entertained at this stage. 9 Turning to the argument that the respondent had no legal personality as well as locus stand to institute the suit against the appellant, it was the submission of the respondent that the respondent is a non­ governmental organisation (NGO) registered under the Non­ Governmental Organisations Act, 2002 as amended by the Written Laws (Miscellaneous Amendment) (No.2) Act of 2005. She also argued that by virtue of section 18 of that Act, a registered NGO shall be a body corporate capable of suing and being sued in its name. Hence, the respondent was justified to sue the appellant before the trial court. As for the argument that the district court failed to consider the illegality that the order/award/decree issued was not executable, the respondent submitted that the said argument is also devoid of merit for being new, as was the first complaint. Coming to the last complaint that the district court failed to consider the illegality that the appellant was not duly served with summons in the application for execution, the respondent had it that such complaint is an afterthought as it was not among the grounds raised in the petition of appeal. 10 In addition to the above, the respondent submitted that under rule 62 of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules, the respondent had a legal right to file the ex parte application for attachment of the appellant’s bank account in order to enforce the award, and the trial court rightly proceeded to hear the application without summoning the appellant, as it was stated by the district court at page 6 of its typed Ruling. In addition, the respondent submitted that if the appellant had an objection against the execution proceedings, she could apply to the trial court for a warrant of attachment to be varied in terms of rule 69 of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules. She concluded by submitting that such complaint is without merit. In the end, the respondent submitted that since the appellant failed to argue her grounds of appeal as contained in his petition of appeal, it is tantamount to failure by the appellant to prosecute her appeal. She also submitted that there were no mis directions or non directions on the part of the two courts below which could entitle this second appellate court to interfere with their concurrent findings of facts. With all that she had submitted above, the respondent urged this court to dismiss the 11 appellant’s appeal with costs and uphold the decisions of the district and primary courts. On the outset, I wish to start by thanking both parties for their industrious works in arguing for and against the petition of appeal whose grounds I have considered along with the rival submissions and the cases referred to me. Likewise, I have revisited the records of the two lower courts below. Having done so, I think the issue to be determined by this court is whether or not, the instant appeal has merit. Starting with the second ground of appeal that the magistrate erred in law and fact by upholding the decision of the trial court, I agree with the respondent that this ground was not addressed by the appellant. So did the third ground. What was done by her through her learned advocate, was to argue on three points of laws which I am going to test and determine them on merit. According to the appellant, the respondent had no locus stand to sue her before the trial court for she failed to attach the legal instrument (certificate of incorporation or registration) at the time of filing her claim in order to support her legal personality. On the other hand, the respondent has strongly opposed that argument contending that the respondent is a registered Non governmental 12 organisation hence, capable of suing or being sued as per the Non­ Governmental Organisations Act. Despite spending much energy to substantiate the above position, the respondent did not lead any evidence to show that at the time of filing her suit before the trial court, she attached any documentary proof to show that she is a registered legal entity. The Court of Appeal in the case of Change Tanzania Ltd vs Registrar Business Registration and Licencing (supra) stated inter alia, that: “When the legal status of a plaintiff, petitioner or applicant in a civil action is challenged by the other party or even suo moto suspected by the court as to form an issue, it is incumbent 10 upon the plaintiff or petitioner whose capacity is put to question as the appelant in this case, to lead cogent evidence to satisfy the court that at the time of suing, it had the requisite legal capacity not only to sue but also to be sued” The records of the trial court and those of the first appellate courts are silent as to whether the respondent attached any document at the time of filing her suit against the appellant. Even the letter dated 8th April, 2021, addressed to the Resident Magistrate In charge of Sumbwanga 13 Urban Primary Court applying for execution of civil case No. 172 of 2020, does not show that the respondent is a registered non governmental organisation, rather it bears the headed paper with the name “Sumbawanga Women Advancement Association (SWAA)” followed by her physical and email addresses.” In the circumstances, it cannot be said that the respondent proved to the trial court by way of documentary evidence, that she is an artificial person capable of suing and/or being sued. However, I have considered the fact that from the time of filing the above civil case before the trial court, the appellant did not question the legal status of the respondent and, that she showed her inertia at the first appellate stage through which she was enjoying the legal services of the trained mind. Indeed, the law allows a party to raise the point of law even at the second appellate stage as it is the case with the appellant in this case. Nevertheless, for the reasons to be assigned shortly, I refrain from holding that the respondent had no locus stand and/or legal personality at the time of suing the appellant. The trial court proceedings depict that the appellant through her representative, admitted to the whole claim she owed to the respondent, as it is shown at page 6 of the trial court typed proceedings. 14 As if that is not enough, it is also on record that the appellant went far by making part payment of the claimed amount to the tune of Tshs. 6,000,000/= to the respondent before the trial court, as it is shown at page 7 of the typed proceedings. As a result, she was ordered to pay the remaining amount of Tshs. 14,333,000/= in a three months’ time. In my view, the appellant would not have admitted and made part payment to the respondent if the latter was not a legally known juristic entity; she decided not to disturb the trial court and admitted to the respondent’s claim because she had no doubt about the respondent’s legal personality. Secondly, as it has already been indicated above, the appellant was well represented by an advocate before the first appellate court. This is exhibited by the typed records of the first appellate court in which it is shown that the appellant enjoyed the legal services of Ms. Neema Charles, learned advocate. In the case of Change Tanzania Ltd vs Registrar Business Registration and Licencing (supra), the Court had the following to say: - “Capacity of the plaintiff which may be among the issues of law of repeated occurrence in the course of litigation, is one of the 15 guiding beacons towards prosecuting a valid cause in a court of law. For that matter, it goes without saying that, any advocate up to the task, will give it premium as he rolls his sleeves to serve his client”[Emphasis is mine] Back home, I am of the settled opinion that since the appellant had the legal services of the abovenamed learned advocate in the matter before the first appellate court, the question as to the respondent’s legal capacity would have been raised by the appellant’s advocate so that the first appellate court could determine it on merit. This again, justifies the fact that the appellant had no problem with the respondent’s legal personality despite the latter’s omission to table a documentary proof before the trial court at the time of instituting a civil case against her. Thirdly, I am also unable to accept the appellant’s argument that the respondent was a wrong plaintiff whose name could not make the order or decree issued by the trial court executable and, I find the case of Ilela Village Council vs Ansaar Muslim Youth Centre and Another (supra) to be distinguishable to circumstances of the case at hand. This is because during hearing of the case before the trial court, the appellant did not complain that she had been sued by a wrong person, 16 rather she appeared to have been familiar with the respondent’s organisation which is why she admitted to have borrowed a huge amount of money from her, accepted to make part payment to the tune of Tshs. 6,000,000/= to the respondent and committed herself to furnish the remaining amount in three months’ time. Not only that, but also in the proceedings before the first appellate court, the appellant did not raise any ground regarding the fact that she was sued by a wrong plaintiff. All that indicates that the respondent was non, but a proper plaintiff capable of suing and/or being sued. In the premises, I am of the view that no prejudice or miscarriage of justice was occasioned on the part of the appellant. The foregoing makes the above complaint to be found without merit. It follows therefore, that since I have found that the respondent was not a wrong plaintiff, I also find the complaint that the district court failed to consider the illegality that the order/award/decree issued by it was not executable, to be without merit. I say so because, the respondent is an existing artificial person, as argued in her reply to the appellant’s written submission. The last argument by the appellant is that the district court/first appellate court failed to consider illegality that the appellant had not 17 been duly served with the summons on application for execution hence she was denied her right to be heard. As indicated above, this argument was also disputed by the respondent who contended that the district court was justified to hold that the trial court was not bound to effect service of summons to the appellant in terms of section 62 of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules. Section 62 of the said rules provides that: “Application for attachment if any money payable under an award or order has not been paid on or before the day fixed by the court under rule 54 (3), thejudgment creditor may apply ex parte to the court for the attachment of the attachable property of the judgment debtor.” From the above provision, it is obvious that an application for attachment may be made ex parte to the primary court for the attachment of the attachable property of the judgment debtor, provided the provisions of Rule 54 (3) of the said rules, have been complied with. Having revisited the typed records of the trial court, I am satisfied that the respondent was justified to file an ex parte application with the trial court for attachment of the appellant’s bank account, and the trial court was right to grant the same. The remedy for the appellant ought to be 18 filing the objection proceedings under Rule 69 of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules which provides that: “Ajudgment debtor who claims that any property which has been attached is not attachable property or is not his property, may apply to the court to rescind or vary the warrant of attachment and thereupon the court shall proceed to investigate the claim and may make such order as may be appropriate...” This entails that if the appellant had any reservation against the warrant of attachment against her bank account, the available avenue for her, was to institute objection proceedings to the trial court to have that warrant be rescinded or otherwise varied, as rightly stated by the first appellate court. I say so because Rule 64 of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules directs that: Service of warrants (1) Every warrant of attachment shal as soon as practicable be served (a) N/A 19 (b) when the attachment is of a debt, on the debtor” [Emphasis is mine] This means that after issuing the warrant of attachment to the judgment debtor under Rule 64 of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules, the executing court is enjoined to make sure that as soon as practicable a copy of the warrant of attachment is served on the judgment debtor. In my view, the logic of that legal requirement is that after being served with such warrant the judgment debtor will be familiar with existence of such warrant hence, being in a good position to opt whether or not to challenge it by way of objection proceedings before it is being executed by the court blocker or whoever has been ordered to effect it. In the present case, the records shows that the appellant did not take any such measures against the appellant, instead she decided to approach this court by way of appeal. However, considering the reasons I have assigned herein above, and the fact that all the grounds raised by the appellant have no merits, I am of the settled view that her appeal is also unmerited and is bound to be dismissed with costs, as I hereby do. She is therefore, kindly advised to avoid using delaying tactics, and abide to the common Swahili saying that, “dawa ya deni ni kulipa” (The 20 cure for debt is to pay) in order to avoid other alternative legal means of executing the decree issued against her by the trial court should she continue with her behaviour of not paying the remaining decreed amount. Having said so, I proceed to uphold the decisions of the two courts below. It is so ordered. A.A. MRISHA JUDGE 16.10.2024 DATED at SUMBAWANGA this 16th day of October, 2024. A.A. MRISHA JUDGE 16.10.2024 21