PC CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA PC. CIVIL APPEAL NO. 6 OF 2023 DAINES JAMES GWATITI APPELLANT VERSUS TUNAWEZA GROUP (FIKIRINI MOHAMED SALUM) RESPONDENT (Appeal from the Judgment and decree of the District Court of Kigoma at Kigoma) (E. B. Mushi, SRM) Dated 24th day of April 2023 In (Civil Appeal No. 39 of 2022) JUDGMENT Date: 11/06 & 15/07/2024 NKWABI, J.: In this tantalizing globe, human beings are prone to bitter stinging surprises, leave alone mesmerizing fits. All these require monetary stability. To have a secured monetary future, people have devised solutions which include groupings, but those solutions are not without some considerable risks. Human beings, intelligent as they are, put in place risk management mechanisms, one of them being the judiciary, apart from security deposits and group constitutions. That is why, parties to this suit have, unwillingly as they could, found themselves before me. 1 The parties to this appeal had a bond. It appears, in the evidence, that the appellant, at a certain time, was the chairperson of the group (the respondent). It also conveys an impression that the appellant got a loan of some amount of money and it is claimed that she failed to reservice the loan. She was sued in the trial court for recovery of T.shs 13,060,000/= whereby the trial court found that the respondent had proved T.shs 6,470,000/= had not been reserviced by the appellant. She was ordered to pay that amount. The appellant was downheartedly aggrieved by the decree of the trial court. The appellant's attempt to overturn the verdict of the trial court crumbled to the ground as the first appellate court, after entertain the appeal, dismissed the appeal in the following words: ''It is my considered view that; the appeal is dismissed and the trial court judgment restored, additional evidence not accepted and no costs for the suit each party to bare his own costs as are members of the same group. /j' The appellant then headed to this Court. She has six grounds of appeal. But nd as the 2 ground of appeal disposes the matter, I shall only deal with it. The ground of appeal is couched thus: 2 "That, the district court of Kigoma grossly erred in law and fact when it held in favour of the respondent while the same had no locus standi to wit the guarantors purported to owe the appellant. , ✓ The appeal was disposed of by way of written submissions. While the appellant had the services of Mr. Silvester Damas Sogomba, learned counsel, the respondent filed the reply to the written submission herself. On that ground of appeal, the counsel for the appellant submitted that the respondent had no locus standi to sue on the said amount of money. He added that it was the guarantors who ought to file the case but respondent did not tender any documentary evidence to power vested on him from guarantors. Withal, he insisted that the debt was cleared when the group was dissolved. The counsel for the appellant cited Lujuna Shuhi Ballonzi, Senior v. Registered Trustees of Chama Cha Mapinduzi [1996] T.L.R. 203 (HC), Samatta, J.K., as he then was. On this ground of appeal as in other grounds of appeal, the counsel for the appellant prayed the appeal be allowed. 3 In response, the respondent emphasized that she has locus standi to sue since she was protecting the interests of the guarantors of the group of Tunaweza. She cited S.P. Gupta v. Union of India AIR SC 149 which stated that any person who has suffered injury of violation or is protecting the interest of the other person who is like to suffer. She pressed home, she has locus standi since she is protecting the interest of the other members of the group of Tunaweza. In a short rejoinder, the counsel for the appellant insisted that the respondent had no locus standi to sue but the persons who had the locus standi to sue were the guarantors themselves. He added that the suit was wrongly instituted by the respondent by mixing the manes of Tunaweza Group who has no legal personality rather recognition number ... and one Fikirini Mohamed Salumu. He also contended that such appearance of the names renders the decree inexecutable. He sought to distinguish the case of Gupta (supra) cited by the respondent. Indeed, in Ballonzi's case it was ruled that: "Because a court of law is a court ofjustice and not an academy of law, to maintain an action before it a litigant 4 must assert interference with or deprivation of, or threat of interference with or deprivation of, a right or interest which the law takes cognizance of. Since courts will protect only enforceable interests, nebulous or shadowy interests do not suffice for the purpose of suing or making an application. H Further, as rightly stated by the counsel for the appellant, the name of the respondent was inappropriately indicated. I do not know what was it hiding when inserted as TUNAWAWEZA GROUP (Fikirini Mohamed Salum). Here one may ask, is that a name of a natural person? I do not think so. Is that a name of an artificial person like a company, just to mention one? That is impossible. If the respondent would provide affirmative answers to the two questions I have posed, those should come from the evidence that is in the record. There is none. In essence, the respondent had no capacity to sue. If one argues, for the sake of argument, that the respondent sued to represent the members of the group, the respondent did not say that he was appointed to sue in a representative suit and the court granted such application. If Tunaweza group were a business name, then "T/A" cannot 5 but to have been inserted between the business name and the name of the natural person. That is not suggested in the evidence either. What has Mr. Sogomba contended is backed by various case laws. For instance, on his argument that the decree would be inexecutable, support could be seen in Ilela Village Council v. Ansaar Muslim Youth Centre, Civil Appeal No. 317 of 2019, CAT (unreported) where it was held that: ''It follows then that; in law, Ansaar Muslim Youth Centre does not legally exist As such any order and/or decree issued in the name of Ansaar Muslim Youth Centre w11/I not be executable because the properties of the Registered Trustees of Ansaar Muslim Youth Centre are not vested in the pt respondent Furthermore, the 1st respondent does not have powers to transact any business or invest or manage the properties of the Registered Trustees ofAnsaar Muslim Youth Centre. N Moreover, the lamentation of Mr. Sogomba that the suit was wrongly instituted by the respondent by mixing the manes of Tunaweza Group who has no legal personality finds no any challenge from the respondent be it by evidence or submissions. It should be noted that a business name has no 6 legal capacity to sue, that power is vested in body corporate as stated in Registered Trustees of Chama Cha Mapinduzi v. Mohamed Ibrahim Versi and Sons & Another, Civil Appeal No. 16 of 2008, CAT, (unreported) where it was underscored that: ''Incorporation Act renders it a body corporate by that name with the power to sue and be sued in that corporate name (see section 8(1) and (6). Therefore, in law, the Registered Trustees of CCM. is a separate person with its own legal identity distinct from Na1bu Katibu Mkuu C CM." In this appeal, a question which may be asked is, what legal identity does the respondent possess? The answer is, she has no any legal identity. Thus, she cannot have any relief availed to her by any court of law. It is also hard to accept the stance of the respondent that she suffered injury by the acts of the appellant while she is non-existing person in law. Had the respondent closely considered the importance of identification in litigation, she would have taken considerable care in naming the respondent (herself). It is too imperative to her to have earnestly looked at the decision in Inter-Consult Limited v. Mrs. Nora Kassanga & Another, Civil Appeal No. 79 of 2015 in which it was highlighted that: 7 ''. .. Names of parties is central to their identification in litigation.... It was fatal irregularity rendering the Notice of Appeal incompetent. // With the above discussion, it is becoming abundantly clear that one cannot be heard to protect the interest of others while violating the dictates of the law, as the justification advanced by the respondent. Finally, I am seemly for reminding the lower courts of their duty to draw the parties' attention to the debilitating aberration to the case as stated in The Registered Trustees of SOS Children's Villages Tanzania v. Igenge Charles & 9 Others, Civil Application No. 426/08 of 2018., CAT (unreported) where the Court ruled that: ''In that reoard. before the tribunal the P" respondent had not showed that his right or interest has been breached for him to sue the Z'd to 1 [Jh respondents in his own name. Insteea. the 1st respondent being an administrator ought to have sued as a personal and legal representative of his late father which was not the case. It was thus incumbent on the Tribunal to draw the attention of the parties on the issue of 8 e Locus standi of the pt respondent before proceeding to try the case. r/ On a final note, I allow the appeal with costs because the proceedings and judgment of the trial court are a nullity on account of incompetency as the suit was filed by a party which had neither legal nor natural personality. The concurrent findings of both lower courts are quashed. I also quash all the proceedings in both lower courts. It is so ordered. DATED at KIGOMA this 15th day of July, 2024. JUDGE 9