20190430 TZHC Mwanza2

IN THE HIGH COURT OF TANZANIA I IN THE DISTRICT I - REGISTRY AT MWANZA I CIVIL APPEAL NO. 01 OF 2018 . I . [Arising from Judgment of Magu District Court in Civil Case No. 30/2014 dated 2Z1d December✓ 2017 Hon. Ll Lugakingira, District Magistrate] . I BOGOHE MISALABA NGUBILA ................................. APPELLANT · JERSUS ~ ANTHONY KALWANI ............ l................... ~ RESPO~NT . M· V JU,GM~~~ J[Jh April, 2019 & J[Jh April, 201~ '\_ M.M. SIYANI, J. (~ . On 18th June 2014, v.0_.K co~o-Q, Company LTD entered into an agree~ent . ~~~/. with one Bogot.le-M.isalaba NguB'ila-(the appellant herein) for the later to purchase c&~dagan~~l Magu District on its behalf. The trial ~~d~~t cou,,l s recor. S\.mu1ca es~t·h. .~ect to th e sa1.d· agreemen t wh'1c h was at su bl_ .. gua~~td~~lome EliaJ Mlingwa, Boniphace John and Piiulina Jame~jin~e appellant Jas supplied with the sum of Tshs 14,600,000/= for purchasing cotn. In executing the agreement, the appeHant purchased 14540 kilJgrams of cotton seeds · w"orth Tshs I . . - 10,905,000/=. He was therefore remained with the sum of Tshs . I 3,331,500/= was unaccounted fa~. · 1 ,. I ! , .., ----- '' ' .•. J '1 On 24th December 2014, Anthony Kalwani (the respondent in this appeal) u l while claiming to be an agent of I.C.K Cotton Company Limited, instituted J I I a civil suit at Magu District Court a~ainst the appellant and his guarantors •· . ,. 'i I I I ·•' . I for recovery of the said Tshs 3,331,500/= being the outstanding amount I l I of money which I.C.K Cotton Conipany Limited supplied to the appellant for the purposes of purchasing cotn. Upon hearing t~rties, the trial court found the claim to hav~ been. establ~aA~--?the . ) V . grounds of appeal: . . ! · · · .(1 ___~tii_iI!-cot:itt erred in law and facts when reached -~~~ ;;;,out aJcording the appellant a chance to be heard. . )) '. . . {2)~✓the trial court erred in law and facts when reaching its decision relying on ~ocumentary evidence which were I . irrelevant to the facts In issue (3) That the trial Magistra~e erred in law and in facts to decide the. case in f;v6ur I of the Pjaintiff without. proof on I . the balance ofprobabiiities. · {4) That the trial courl: er)ed in law in facts for failure to 2 consider the facts that the Plaintiffhad no locus standi to ·l institute the matter. In the course of perusing the trial court records, I formed an opinion that I I I since the contract was between the appellant and I.C.K COTTON ·,I f I • I • action and so lacked capacity to su~. On his side, the respondent I contended-that he instituted the tase _at the District Court and the same • I • • was admitted upon satisfacti9n by the said court that all was well. In his • I I I .. 3 1 .I ·• 14 . "'.: I ,j . view, had the trial court found th t he had no locus standi or that the l ·1 U same had no jurisdiction, it would tve said so. f ' Having accorded parties a chance to address the Court on the issue raised, I am settled that the respondent Jas stranger to the contract dated 18th June 2014 between I.C.K cotton Company Limited~~ appellant which was admitted during trial asl exhibit Pl. I ~ ~ e r ~ o n , although the contents of exhibit Pl. s ~ ( ~ a n i (the . responde. nt) signed the said contra/et,~- mployerof~e appellant thcit ~\~~ per se did not turn him to be,I-:€.~ cotro,n Co~ny Limited who entered into that contract. A tri_te{Gt~~ny once registered, _has a . separate legal per~z~~)nter intci binding contracts with both legal <.t~d natura7rSOns. As such company retains its own. life differ.eot fr~~Jrotits~wneJs, then the same can sue and be sued . . \~~ . . . . · ThereDJ.USt asJ.c.K· cotton Company Limited entered into that contract ~ I _ · with· the appellant, the same company could have legally sued the I . . . appellant in case of breach. I believe by suing· in his own names, the . appellant lacked cause of action lhich acccirding to the d~cision of this court in Aikangai Alphonce RJa Vs Kinolldoni Municipal Council & Others, Land Case No.113 of 2004. (Unreported) which was quoted 4 with approval the decision in Jackson Vs Spitall (1890) LR 5 CP 542 the I same means "the act on the part of the defendant which gives the plaintiff his cause of complaint." Taking a leaf from that definition, there is nothing that can be said to have I ~ been done by the appellant who was the defendant at tne,trial court that could have given the respondent (plaintiff) ~ ca~~use for all purposes and intent if at all ther~~acb/ofcontract then only a party to it (of which t h ~ p ~ ~ o u l d have been injured and so constituting a,eause ~o~la~ In my view where one f(l~A has a cause of action t~at person'bas also a right to sue. In some . \\ (('-., 0 {/ circumstances also<ta3;e of,action b1sdmay constitutes J'urisdiction of the V ~ ~ • · '-L/ court to try a.,,~her~fore where pleadings are clear by themselves that no f~~ )L~ . caus~-O a\..L1or:i~t1as~_~en;m 1catedb )/.d. · y th e.Pl. am t'ff rt bf . 1 , cou s e ore going . . . ~ I. . For the reasons above, I am satisfied that being not a party to the . .I . contract, th~ respondent had no cause of action against the appellant and . I . cons~quently ·,~eked locus· standi. The trial _court the.refore wrongly . . I . . decided the case in favour of a stranger to the contract and award him the sum of Tshs 3,331,500/= plus interests. Since the_ issue of locus stand 5 ' I f ,I .; was also among the issues raised by the appellant in his memorandum of 0 appeal, I find the appeal to have Jerits and I allow the same by quashing and set aside both the Judgment· alnd Decree of the District Court of Magu . I . in Civil Case No. 30 of 2014. Considering the circumstance of this case, I order each party to bear its own !sts. · · It is so ordered. 6