chama cha msingi minamu amcos vs kupenda abeid kupenda 2 others 2024 tzhc 918 27 february 2024

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA SUB-REGISTRY) AT MTWARA PC. CIVIL APPEAL NO.20 OF 2023 (Originating from Masasi District Court in Civil Appeal No. 13 of 2022 and Lukuledi Primary Court in Civil Case No.4of 2022) CHAMA CHA MSINGI MINAMU AMCOS ......................APPELLANT VERSUS •<>.> KUPENDA ABEID KUPENDA......... ......1st RESPONDENT HASSAN ABDALLAH MKOROMA .^....,.:„,.....,.........2ND RESPONDENT AHMAD HASSAN SAID ........................................ ....3rd RESPONDENT JUDGMENT 14/12/2023 & 27/2/2024 Ljflii.^rjAki j. The Appellant herein CHAMA CHA MSINGI MINAMU AMCOS is dissatisfied the decision of Masasi District Court in Civil Appeal No.13 of 2022 which arose from Lukuledi Primary Court in Civil Case No.4 of 2022. The appeal is based on the following grounds: 1, That, both the Trial and the First Appellate Court grossly erred both in law and fad: for ordering the Appellant to pay the Respondents the sum of TZS. 8, 035, 500. 2. That, both the Trial and the First Appellate Court grossly erred both in law and fact and consequently reached an erroneous decision for failure to hold that the proper party to be sued was the Government. 3. That, both the Tria! and the First Appellate Court grossly erred both in law and fact and consequently arrived at an erroneous decision for failure to hold that, the statement by Page 1 of 9 the Prevention and Combating of Corruption Bureau (if any at all) did not in law, shift burden to the Appellant to refund the Respondents. 4. That, both the Trial and the First Appellate Court grossly erred both in law and fact for failure to hold that, Respondents being a member of the Appellant immensely contravened tiie mandatory statutory rules and procedures laid down for settling disputed under the cooperative sector. 5. That, the First Appellate Court grossly erred both in law and fact for failure to hold that tiie AMCOS leaders were not entitled to any refund of the monies they paid to the Government. When the appeal was called for mention, the parties suggested proceeding in disposing of the same by way of written submissions. A schedule to that effect was jointly agreed and the same has been spotlessly adhered to. It appears that while the appellant enjoyed the skilful legal services of Mr. Robert K. Dadaya, Advocate the respondents were assisted by an anonymous legal aid provider. I take this opportunity to register my appreciation for the invaluable services by both the learned Advocate and his paralegal counterpart. " > A brief factual and contextual backdrop necessary to appreciate the appeal is considered imperative at this juncture. In the 2017/2018 cashewnut harvesting season in Masasi District, Mtwara Region, a total of 11 tons of cashews collected from farmers ready to be taken for storage to a nearby warehouse vanished. This led to a loss of 41,000,000 allegedly occasioned by staffers of the Appellant. As a result of complaints by farmers who were hot paid due to the loss, the then Regional Commissioner (RC) for Mtwara established a committee tasked with ensuring the farmers were paid their due. The RC's committee, chaired by the Prevention and Combating of Corruption Bureau (PCCB's) District Commander, arrested the Respondents and four others who were responsible for collecting cashewnuts from farmers. They were allegedly ordered to pay TZS 2,678,500/ = each as Page 2 of 9 a prerequisite for their release from the police custody. To procure their liberty, the appellants and the four others dug deep into their pockets and the loss of 41,000,000 was cleared making both the RC and the farmers happy. Upon their release, he appellants felt that they were not fairly treated. They knocked the doors of Lukuledi Primary Court demanding that the Appellant, whose officer was responsible for collecting the money from them and depositing it in the Appellant's Bank account, be forced.to refund them as they occasioned no loss. The trial Court decided in their favour. Dissatisfied, the current Appellant appealed to Masasi District Court which upheld the trial court's decision hence this appeal. v Submitting in support of the appeal, Mr. Dadaya requested to combine the first and second grounds of appeal; and argued them conjointly. He averred that both the trial and first appellate courts failed to recognize that the proper party to be sued should have been the government, which ordered the Respondents to cpver the loss, not the Appellant, as she did not issue any orders. The learned Counsel emphasized that the Appellant did not order the Respondents to pay the contested sum; it was the government that issued such orders. 'Going: deeper, Mr. Dadaya argued that the government, through a probe committee formed by the Regional Commissioner for Mtwara, was the entity that issued such orders. Referring to the trial court's proceedings, Mr. Dadaya averred thatSMl KUPENDAABEID KUPENDA, on page 6 of the typed proceedings, stated, "kamati ndiyo ilitulazimisha tulipe pesa siyo chama." The same position was supported by the testimony of SM2 HADEIA BISHIRI Page 3 of9 at page 11 and SMS3 HASSAN ABDALLAH MKOROMA on page 12 of the typed primary court proceedings, asserted Mr. Dadaya. Mr. Dadaya firmly believes that the government should be held responsible for any conduct since it took all these measures and had all the skilled personnel to determine the proper recourse against the incident. He went on to assert that the Appellant had no say, as confirmed on page 6 of the typed primary court proceedings, where SMI explicitly testified that the Appellant had no influence over the committee, which actively took all actions and issued orders against the Respondents. The learned Advocate averred further that the Respondents should have sued the government, which was better positioned to explain the reasons for holding the Respondents liable to pay the monies. Holding the Appellant liable for the government’s actions, reasoned Mr. Dadaya, was akin to condemning the Appellant for the acts of a third party. Moving on to the third ground of appeal, Mr. Dadaya submitted that both the Trial and the First Appellate Court grossly erred in law and fact by failing to acknowledge that the statement by the Prevention and Combating of Corruption Bureau (PCCB), if any, indicating that the Respondents would be refunded by the Appellant the monies they paid for loss did hot, in law, shift the burden to the Appellant to refund the Respondents. Mr. Dadaya asserted in the fourth ground of appeal that both the Trial and the First Appellate Court had erred in law and fact by failing to recognize that the respondents, as members of the appellant, violated mandatory statutory rules for settling disputes within the cooperative sector. He emphasized that the dispute should have been resolved under Page 4 of 9 cooperative sector mechanisms, given that the appellant is a registered society under the Cooperative Societies Act. According to Mr. Dadaya, the appellant argued that the respondents, being board members of the appellant, admitted their membership during testimonies in the Trial Court. Moreover, he stated that disputes involving cooperative societies and their members must comply with specific regulations outlined in the Cooperative Societies Act and Regulations, such as negotiation, reconciliation, arbitration, and appeal to the Minister responsible for cooperative affairs. Mr. Dadaya cited several case laws, including Wadoki Saccos Ltd v. David Mseti and 2 others Civil Appeal No. 58 of 2020 (unreported), High Court at Mwanza, Uzinza SACCOS Limited v. Emmanel Shigongo and Others Misc. Civil Appeal No. 1 of 2010 (unreported), High Court, and Ladislaus Mashauri Mshana v. Mashima SACCOS Ltd and another Land Case Appeal No. 16 of 2018 (unreported), High Court at Moshi., to support the argument that normal courts lack jurisdiction in disputes within cooperative societies. He urged the court to recognize that both lower courts had no a 'V.. m jurisdiction, rendering their proceedings, judgment, and subsequent orders null and void, '= Moving on to the fifth ground of appeal Mr. Dadaya challenges the First Appellate Court's decision regarding the refund of monies to AMCOS leaders, asserting that they were not entitled to a refund as they caused the loss. Mr. Dadaya contended that the court erred in holding the appellant responsible for payments to the respondents and requested the nullification of the proceedings, judgment, and orders from both lower courts. PageSof 9 The Respondents/ on their part/ in their joint response to the grounds of appeal explained that they were members of the Appellant's board assigned to purchase cashew nuts. They detailed an incident at Nambawala where loss occurred/ and the Regional Commissioner ordered the peasants to be paid. The Appellant used the money collected from the Respondents to pay the farmers, acknowledging that the loss was caused by her employees. The Respondents lamented bitterly that they paid the money to procure their liberty as they were detained at Masasi Police Station. They mentioned two employees of the Appellant as being responsible for the loss. The Respondents further argued against the third ground of appeal, contesting the burden-shifting effect of the PCCB's statement. They claimed the statement lacked legal force and could not hold the Appellant liable. Regarding the fourth ground, the Respondents disagreed with the Appellant's assertion that disputes among cooperative society members should be settled within the cooperative sector, citing rules and procedures. They argued that the Appellant failed to comply with cooperative regulations and violated the clean hands doctrine. On the fifth ground the Respondents opined that the Appellant's acknowledgment of the Respondents' membership and their forced payment to coyer the loss suggested that the Appellant was aware of misguided approach of shifting the blame to the Respondents. The respondents earnestly prayed for this court to quash this appeal, uphold the two concurrent judgments of the lower Courts, order costs of this Appeal and any other relief(s) this Court deems fit and just so to grant. Page 6 of9 In rejoinder, Mr. Dadaya highlighted that the respondents, in their replies, essentially conceded to being board members of the appellant and admitted to being assigned by the appellant to handle cashew nuts on her behalf. He argued that, according to Section 68(1)(2) of the Cooperative Societies Act (Supra), the Respondents were jointly accountable for the loss they caused as board members. Mr. Dadaya contended that any grievances should be directed towards the government, which had invoked its authority and ordered the respondents to bear the loss; He insisted that the loss, though involving criminality, was appropriately handled by government authorities. In conclusion, Mr. Dadaya requested the court to allow the appeal and dismiss the respondents' replies as baseless. I have dispassionately considered the rival submissions and carefully examined the lower courts' records. I think I am not going to waste time to state the obvious that in our jurisdiction a second appellate court would not normally interfere With concurrent findings of the trial and first appellate court. That is too familiar a position that I think no need to cite any authority. Nevertheless, in this judgement, I find no justification to maintain this wisdom. I am inclined to reverse the concurrent findings and nullify .proceedings and subsequent orders of both lower courts. Before I explain my reasons for the above position, I am inclined to state that cases such as this reveal the wisdom of the drafters of the Magistrate's Courts Act Cap. 11 [R.E. 2019]. Section 30(1) of The Magistrate's Courts Act, (Supra) grants supervisory powers to this Court to oversee all courts within its jurisdiction. In exercising these powers, the Court can request and review the records of any proceedings in a District Court or Page 7 of9 Primary Court. The purpose as expounded by section 31 to examine the records or register thereof to ensure the correctness, legality, and propriety of any decision or order, as well as the regularity of any proceedings therein. It is unfortunate that due to the vastness of the Mtwara sub-registry, the High Court was unaware that proceedings full of impropriety were taking placed at Lukuledi Primary Court and later endorsed by Masasi District Court much to the inconvenience of the Respondents. As the judiciary is moving towards electronic proceedings, it is hoped that next .time, such inconvenience may be avoided. \ With respect, the learned trial Magistrate ought to have realised from the testimonies adduced that the then complainants had sued a wrong party. More importantly, the trial court should have read between the lines to realise that in the absence of any agreement between the then complainants and the Appellant, there was no civil case before the court. The court proceeded with what I consider unfortunate on the side of the Respondents who, although they ''succeeded" with both the trial and first appellate courts, must now be forced to face the truth. I cannot agree more with Mr. Dadaya that Respondents should have sued the government, which was better positioned to explain the reasons for holding the Respondents liable to pay the monies. To be more specific, Respondents should have challenged the order of the Regional Commissioner by way of Judicial Review. An application for leave to that effect for writs of certiorari and mandamus should have been filed in this court as the first step towards finding out whether the order by the RC was legally sound. Page 8 of 9 But what exactly are the writs of certiorari and mandamus? In Sanai Murumbe and another vs Muhere Chacha [1990] TLR 54 the Court of Appeal of Tanzania stated that an order of certiorari is one issued by the High Court to quash the proceedings of and decisions of a subordinate court or tribunal or public authority where, among others, there is no right of appeal. Since this is not a decision on prerogative writs, I consider it wise to refrain from proceeding to evaluate appropriateness of the Order of the RC. Premised on the above, I allow the appeal. I nullify all proceedings of the lower courts and set aside respective orders. I make no orders as to costs. It is so ordered. E.I. LALTAIKA JUDGE 27/02/2024 Page 9 of 9