20180813 TZHC Mwanza2

IN THE HIGH COURT Of TANZANIA AT MWANZA HC. CIVIL APPEAL NO. 64 OF 2017 . .,::.." •''. :·,';\; ......, . . {Originating from Musoma District Court Civil N0.41 of' 2015} ~4.,;~· . .. BALTAZARY WAMBURA ........................................... APPELLANT VERSUS 1. BRANCH MANAGER~ F~NCA MARA( 2. DOM MY co. & TRIBUNAL BROKERJ ....... ........ RESPONDENTS JUDGMENT 05/07/201S & .1.3/08/2018 Before: Gwae, J -- ·- -In the D1Sfrk:t of Muso-ma -af ·Musonia -("trial' court"); the ·appellant,-- - - - Baltazary Wambura instituted a civil. suit praying for the following reliefs against the defendants now respondents named herein above: a) Damages at th~ tune of Tshs, 1, 50_0, 000/ = being the value of the freezer sold by defendants, Tshs. 16, 642, 000/= being the . . loss expected business profit for 317 days and Tshs. 15, 000, 000/= being generai damages b) The court interest of 7 % per annum of the sum claimed from the date of judgment to the date of final settlement c). Commercial Interest at 31 % per of the claimed sum d) The defendants jointly to pay the plaintiff the costs- of this suit e) Any other.award that would be deemed just and fit to grant - ~ 1 The appellant's suit was objected by the respondents through their written statement of defence which was accompanied with a notice of preliminary objection based on two points of law, to wit; f~rstly; that, the plaintiff/appellant's suit was incompetent for suing non-legal person and :{,~]) secondly; that,· the trial court had no jurisdiction to entertain the suit whose value of subject matter is Tshs. 1, 500, 000/ =. However the learned District Magistrate after his due consideration of the PO overruled the same and proceeded with the trial. of the case. On the 9 th March 2017, the trial of the matter was concluded and the judgment was rendered 30 th May 2017 in which the appellant's suit . . was dismissed entirely on the 9round that the appellant was guarantor and witness in the collateral agreement and therefore liable. Aggrieved by the decision of the trial _court, the appellant filed his petition of appeal containing a total of six grounds of appeal, notably; 1. That, the honorable learned Magistrates erred in law and fact by assuming that the witness of loan agreement can be a guarantor and responsible for the repayment of the 2. That, the learned trial magistrates erred in lavv and fact· by reasoning that since there was no resistance during attachment of the appellant's property the . attached properties were not belonging to the appellant as he did not resist. 3. That, the trial learned magistrates failed to evaluate the evidence before him that Makuyu Magai refused. to sign the document during attachment this clearly indicate that the attached properties~ were not his. - .· 2 4. The learned trial magistrate erred in law and fact by rejecting the crucial document which shows on returning the attached properties to the appellant with condition of cooperating to get the loan the directives of the 1st respondent to. the 2nd respondent on returning the attached properties to the appellant with condition of cooperating to get the loan security of one Makuyu Magai 5. That, the learned trial magistrate failed to evaluate the evidence that since .there was no dispute the second respondent attached three deep freezers and that there was no dispute that the respondent returned to the appellant two deep freezers, this clearly indicates that the attachment of the appellant's properties was not right as the respondent could not return the two deep freezers 6. That, the trial magistrate erred in _law and fact for failure to evaluate the whole evidence on the record that DWI testified that the attached properties belonged to one Makuyu Magai while the learned magistrate concluded that the att~ched properties were under condition that the plaintiff was to repay the outstanding balance.·· Impliedly it was p!a.intiff's properties but attached with conditions to repay Makuyu Magai's Loan. At· hearing of this app.eal, both parties had enjoined legal services_ from learned advocates, namely Mr. Majogoro and Mr. KHenzi for the appellant and respondent respectively. Supporting the appellant's· appeal, Mr. Majogoro, reiterated the grounds of appeal contained in the memorandum of appeal as herein ~ · 3 The learned counsel for the respondents seriously contested the appellant's appeal by stating that all the properties so attached by the 2nd respondent were the lawful properties of one Daniel Makuy.u Magayi, the borrower as per exhibit 'D1' .(DEl) and that the loan was secured and the properties so atta.ched (DE2) were offered as securities. In respect of the 2nd ground the learned counsel for the respondents also argued that the appellant did not have ownership of the properties ·attached and that the complaint in the ground no on the assertion that one Magayi to refuse to sign is unfounded since the same is not reflected by the evidence on record. In the fourth groun.d of appeal, the respondents' advocate submitted that the trial court properly invoked its discretion in rejecting the tendering ==·-- -of the appellant's documents as the same- were not original ones nor the requisite notice to produce the copies were issued. Admittedly, in the 5th ground of appeal, the Mr. Kilenzi argued that thought the deep freezers were returned but the same were so returned after partial repayment of the loan by the borrower, Daniel and· that the same were not returned to the appellant. In responding t.o the 6th ground of appeal, the respondent's counsel argued that the appellant did- not .establish case to· the standard required, embracing his submission, he cited the case of NBC Manager Tarime · Branch vs. V. Enock (1993) T.L.R 228 Mr. Ki!enzi further argued· as was the ca_se before the trial court that DrmJf(5~· the appellant wrongly sued the 1st respondent, Branch Mariager, non- 'h:n~~~ 4 existing entity with no legal capacity, bolstering his stance, Mr. Kilenzi cited a decision of this court at Tanga (Mkwawa J, now a retired judge) in South Freight v. Branch Manager CRD~, Civil Case No. 5 of 2002 (unreported). Rejoining to the submission of the respondents' counsel, Mr. Majogolo stated that the appellant had no legal reason to sue the borrower; Daniel Magayi as he was not the one who attached his properties adding that -the refusal to sign_ by the borrower is vividly reflected in the proceedings; Mr. Majogolo went on stati_ng that the trial court wrongly rejected the documents to be tendered for evidential value in favour of the appellant as the notice was given· and his in conclusion Mr. Majogolo said that the ----_-_ -appellant rightly sued the 1s_t respondent as he was the one who entered- into the loan agreement. I think it is quite apposite to have the issue of locus standi of the 1st respondent, Branch Manager Finca Mara in this matter between the parties re-determined. In order one to sue or be ·sued he or she must have the ability or right to demonstrate to the court in sufficient connection, thus locus standi means right or interest or obligation that one has in a certain subject matter or case. Presently; the appellant has .sued the 1st respondent, a mere manager of Finca at Mara branch. I think it is quite prudent to look at the loan agreement entere9 by the parties and the collateral agreement, DE2 & DW3 respectively dated i4th September )m~ 2013. · . 5 The loan agreement shows that the 1st respondent acted as representative of Finca (T) Ltd who was authorized to sign for and on behalf of the Finca (T) Ltd for clarity part of the loan agreement is reproduced herein below; "Finca Tanzania Limited Kampuni iliyosajiliwa ........ itajulikana kama FINCA (T) Ltd ambayo itawahusisha wawakilishi wake pale inapobidi ikiwakilishwa na Meneja wa Tawi kama mtia sahihi mkuu halali wa FIN CA (T) Ltd Tawi la MARA ..... " The 1st respondent to my best understanding had noJ legal entity as he did not enter into _the loan contract except the FIN CA (T) Ltd, the 1st respondent was a mere representative, in order to have the rights of the appellant, if any realized, or be effectual the appellant ought to have sued FINCA (T) Ltd instead- of a mere representative. -It is not therefore proper to sue a representative of a necessary party as was correctly found in the case cited by the learned counsel for the respondents that is South Freight v. Branch Manager CRDB (supra), where it was judicially emphasized to sue a lega! entity. Moreover this court (Samatta, J- as he then was) when interpreting the word "locus standi" in l~juna Shuhi Ballonzi, Senior v. Registered Trustees of Chama Cha Mapinduzi (1996) TLR 203 stated among·other things that; (i) Locus standi is governed by common law according to which a person bringing a matter to court should be able to show thathis right or interest has been breached o r ~ _ interfered with; - . · . ,,,,~~ 6 (ii) The High Court has the power to modify the applied common law so as to make it suit local conditions; (iii) The rule of locus standi, in so far as it relates to human rights litigation, must be wide; but there is no basis or fustification for widening it to a similar extent in a private interest litigation as in this case (emphasis. supplied); According ~o the definition of the term "locus standi", it is my considered opinion that the 1st defendant now 1st respondent who is non- exi~tent legal entity could not be properly sued as the legal entity capable of being sued is clearly indicated in the collateral agreement as well as in _the loan agreement to be FINCA (T) Ltd while the 1st respondent merely --· --- acted as representative of the FINCA (T) Ltd, he is therefore non-existing entity in law considering the fact that the matter at hand is purely private litigation. Equally; the purported non-joinder of the borrower, one Daniel Makuyu by ·the appellant, would have been cured · by the trial court immediately before commencement of trial by ordering an amendment of the appellant's plaint in order that a decree or any order after determination of the dispute in future to be more effective and executable in favour of the decree holder (see Oysterbay properties and another v. Kinondoni Municipal Council and others, (2011) 2 EA 315 where the Court of Appeal of Tanzania held that the proper person to sue and be · held liable· to a proceeding is the one who can satisfy a decree (Municipal Council and not a mere director). 7 The trial magistrate, to my considered opinion, misdirected himself by holding that the Manager Finca Mara is the proper party while in observance of the authority cited ~y him in Suryankant 0. Rarnji v. Saving and Finance Ltd (2002) TLR 121, the principle enunciated thereof is that a proper party is the one whose presence enables the court to decide effectively and finally the dispute in question. In our instant matter the court can decide finally but the decree cannot be effective enforced simply because the decree or order cannot be satisfied by the 1st respondent, a non-legal entity except by FINCA (T) Ltd. In Official Receiver v. Merssrs Ukamba Service Store [1952] 20 EACA 19, it was held that an official receiver was ·found necessary party, therefore FINCA (T) Ltd and the borrower, Daniel Makuyu t,\ag;:1j , ught to be joined in a suit. Following the above holdings, I would prefer to a determination of the fourth ground of appeal on the complained rejection of thE:~ appc':ant's documents. The appellant is observed to have issued notice to r <duce 1 : dated 29 th August 2016 pursuant to sE=ction 68 of Tanzania Evidence Act; Cap ~1 Revised Edition, 2002 as opposed to the subrriis~-:;::Jn -t:·; the respondents' counsel, the notice to produce was to the effc ' 1" •. ,. the original certificate of seizure in respect of the alleged propc"tie.s · ; the appellant so attached by the respondents was in the posses'~:ion cf the respondent. · However it is glaringly observed from· the record th?' \."-d" ·1 0 the appellant appeared and adduced his testimony <?n 27 th July ·2,)16, :~, copy of the same was not admitted on the ground that it iS the copy •.,,;hose~ 8· ~ • original one is in the plaint. I have further looked at the appellant's plaint and found none. This was therefore a total misdirection on the pr1rt nf the trial court to refuse admit the appellant's exhibit since he rig!·1:!y_ complied with the requirement of the law. Having observed as herein above on issues of locus standi and mis- joinder as well as determination on the fourth ground of appe!!::1nt's appeal I think it is prudent to refrain from determining other grouncls of appeal aforementioned as the same will probably· affect the trial at th_e intended rehearing of the matter if desired. In. the light of the view that I have taken, the prou·,:::,:t and decision of the trial court a.re quashed and set aside. The appellant rnay file afresh the matter joining the necessary and proper parties a:-,,~J clue to limitation of time he is give 45 days from the date of this ord:::,r to re-file the matter before a competent court if he so wishes. Each ~- · the costs of this appeal ~ Order accordingly. L,M.R~ Judge 13/08/2018 9