PC Civil Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA PC CIVIL APPEAL NO. 27009 OF 2023 {Arising from Civil Appeal No. 3 of2023 from District Court of Tandahimba at Tandahimba and Originating from Tandahimba Primary Court in Civil Case No. 12 of 2023) DINYANGA AMCOS.......................................................... APPELLANT VERSUS JUMA MOHAMEDI KAISI................................................. RESPONDENT JUDGMENT 2h August & 2Oh August, 2024 MPAZE, J.: DINYANGA AMCOS (the appellant), a cooperative society, found itself dragged to the Primary Court of Tandahimba on 17th March, 2023 over a claim of Tshs. 15,000,000/= filed by Juma Mohamedi Kaisi (the respondent). In his claim, the respondent stated that the founders of the cooperative society (DINYANGA AMCOS) approached him for a loan to establish the society. He agreed without hesitation and lent them a total of Tshs. 7,400,000/= with the agreement that the amount would be repaid based on the market price of cashew nuts in 2016. Consequently, i they were required to pay him a total of Tshs. 21,000,000/=. However, they had only repaid Tshs. 6,000,000/=, resulting in an outstanding balance of Tshs. 15,000,000/=. Juma Mohamedi Kaisi (PW1) tendered the minutes of the meeting where the appellant acknowledged the debt owed to him, which was received as Exhibit Pl. He also tendered a debt repayment agreement, marked as Exhibit P2. Rehema Issa Halfan (PW2) and Faraji Mohamed Japuka (PW3) both supported the respondent's claims. Hamisi Natenda Ismal (DW1), the chairman of DINYANGA AMCOS, claimed that he knew nothing about this debt. However, Husseni Rashidi (DW2), a former secretary of the appellant, acknowledged the debt and stated that by the time he left office, the respondent was owed a total of Tshs. 21,000,000/=. He confirmed that Tshs. 6,000,000/= had been repaid, leaving an outstanding debt of Tshs. 15,000,000/=. Based on this evidence, the primary court found in favour of the respondent and ordered the appellant to pay the remaining balance of Tshs. 15,000,000/=. 2 The appellant, dissatisfied with the decision, appealed to the District Court of Tandahimba, raising three grounds of appeal, namely; 1. The trial magistrate erred in law and fact by not considering that the money was lent to persons to establish the cooperative. Thus, the respondent should have sued those persons, not the cooperative, as the cooperative did not exist at the time of the agreement. 2. The trial magistrate erred by not considering that DINYANGA AMCOS had no debt information from the previous board. Cooperative procedures require the previous board to hand over all debts to the new board for repayment. 3. The trial magistrate erred in law and fact by considering a witness not called by the appellant. The appellant did not call any witness other than the chairman during the hearing, yet the judgment mentions DW2 as appellant witness. Upon hearing the appeal, the first appellate court found all grounds of the appeal to be baseless, emphasizing that the entity owing the debt was indeed the appellant. Subsequently, the appeal was dismissed with costs, and the appellant was ordered to pay the Tshs. 15,000,000/= owed to the respondent. Section 25(b) of the Magistrates' Courts Act, [Cap 11 R.E 2019] (the MCA) grants the right to a party aggrieved by the decision of the district 3 court, when exercising its appellate or revisional jurisdiction, to appeal to the High Court within 30 days. The section reads; 'In any other proceedings, any party, if aggrieved by the decision or order of a district court in the exercise of its appellate or revisional jurisdiction, may within thirty days after the date of the decision or order, appeal therefrom to the High Ccw/t.'[Emphasis added] A straightforward interpretation of this provision is that a party aggrieved by a district court's decision, made in the exercise of its appellate or revisional jurisdiction, may appeal to the High Court. In other words, only decisions made by the district court in its appellate or revisional role are subject to appeal to the High Court. I have decided to begin with this provision after examining the grounds of appeal, where the appellant has raised four grounds. However, all these grounds challenge the trial court's decisions, not those of the first appellate court. In light of this provision, it was incorrect for the appellant to present grounds contesting the trial court's decision to this court, as such grounds should have been raised before the district court. The appropriate course would have been to challenge the decision of the first appellate court. 4 The reasoning behind this is that, as a general rule, in a second appeal, the court cannot consider grounds of appeal that were not first addressed by the first appellate court, in this case, the district court. The Court of Appeal has already articulated this in various decisions, for instance, in the case of Samweli Sawe v. R Criminal Appeal No. 135 of 2004 (unreported), where it stated; Ms a second appellate court, we cannot adjudicate on a matter which was not raised as a ground of appeal in the first appellate court. The record ofappeal at pages 21 to 23, shows that this ground of appeal by the appellant was not among the appellants ten grounds of appeal which he filed in the High Court. In the case of Abdul Athuman vs. R (2004) TLR151 the issue on whether the Court ofAppeal may decide on a matter not raised in and decided by the High Court on first appeal was raised. The Court held that the Court of Appeal has no such jurisdiction. This ground of appeal is therefore, struck out' The grounds submitted by the appellant are as follows; 1. That the trial court grossly erred in law and fact by entertain the case which has no jurisdiction. 2. That the trial court grossly erred in law and fact by violating and failing to obey the law of cooperative societies act (act number 06 of 2013 and it's regulations thereunder including cooperative societies regulations made under government notice No. 272 published on 17th July, 2015 as the law that specifically established 5 dealing with all matters concerning the cooperative societies and other matters incidental or connected thereof. 3. That the trial courts erred in law and fact by wrongly proceeding to determine the issues relating to cooperative societies, having found and declared that the respondent has locus stand over the matter in dispute. 4. That the trial court erred in law and fact for relying on fabulous testimonies of respondents and without proper evaluation, assessment and analysis of the evidence provided hence it arrived into wrong conclusion. Looking at these grounds, even at a glance, they challenge the trial court's decision. However, upon closer examination and comparison with those raised before the first appellate court, they do not match. In other words, the appellant has brought entirely new grounds to this court that were never addressed by the first appellate court. Guided by the case of Samweli Sawe (supra), these grounds should have been struck out. As I deliberated on the appropriate course of action to take, I came across the case of Mathayo Laurence William Mollel v R (Criminal Appeal No. 53 of 2020) [2023] TZCA 52 (6 February 2023). The Court of Appeal made it clear that grounds not presented in the first appeal will not be addressed in a second appeal unless they pertain to a point of law. The Court observed; 6 '...After all, he argued, the ground of appeal was not raised on the first appeal and there was no such complaint at the trial. The learned State Attorney thus implored us to ignore the complaint. We think Mr. Kagirwa is right. There was no such complaint at the trial. Neither did it arise on first appeal. We agree with him that the complaint is but an afterthought. It is now settled law that, unless it is a point of law, this Court will only consider and determine grounds raised on an appeal on which it is $7tt7n^.'[Emphasis added]. Applying the principles established in Mathayo's case to the case at hand, I chose to examine the grounds of appeal to ascertain whether any of them raise a point of law. It was at this point that I discovered that only the first ground of appeal, which challenges the jurisdiction of the trial court, pertains to a point of law. The ground reads; 1. That the trial court grossly erred in law and fact by entertaining the case withoutjurisdiction. Given that this ground of appeal centers on the issue of the trial court's jurisdiction, I felt it necessary to address it, as it pertains to a point of law affecting the court's jurisdiction. Jurisdictional issues can be raised at any stage of the proceedings, and the court must resolve it, given its critical importance to the root of the case. 7 It is a settled legal principle that to determine whether a court has jurisdiction over a matter, it is essential to examine the nature of the claim and the reliefs sought. By assessing these aspects, we can ascertain whether the court in question had the authority to hear the case before it. In the case of Exim Bank (T) Limited V. Agro Impex (T) LTD & Others Land Case No. 29 of 2008 (unreported) where the Court held; ' Two matters have to be looked upon before deciding whether the court is clothed with jurisdiction. One, you look at the pleaded facts that may constitute a cause of action. Two, you look at the reliefs claimed and see as to whether the court has power to grant them and whether they correlate with the cause of action' While scrutinizing the records to determine whether the trial court had jurisdiction, I identified an anomaly in the proceedings that had not been raised as a ground of appeal. As a result, I vacated the order of judgment and re-opened the proceedings, requiring the parties to appear and address the issue. The anomaly I identified was that the testimonies of all witnesses were taken without an oath. On 2nd August, 2024 the parties appeared and addressed the anomaly. The respondent submitted that during the hearing at the trial court, all 8 witnesses gave their testimonies after taking an oath. He argued that if the records do not reflect this, it must be a clerical error by the court, as he is aware that the correct procedure was followed. On the other hand, Mr. Ahyadu, the learned advocate for the appellant, contended that since the records do not indicate that the witnesses took an oath before giving their testimonies, their testimonies should not be considered and should be expunged from the record. He emphasized that the court records are to be regarded as the accurate account of the proceedings, citing the case of Salim Amour Diwani v. The Vice Chacellor Nelson Mandela & AG (Civil Application No 116 of 2021) [2023] TZCA (21 February 2023). The advocate opined that once the testimonies of all witnesses are expunged from the records, the case would lack substance, and thus, the appeal should be allowed. Following the submissions from both parties, I discerned two main issues that need to be resolved in this appeal which are; 1. Whether the trial court had jurisdiction to hear this case. 2. The failure of the trial court to administer oaths to the witnesses. 9 In resolving this appeal I will first address the issue of the trial court's failure to administer oaths to the witnesses. Upon evaluating the trial court records, both handwritten and typed proceedings, I observed that the testimonies of all witnesses, namely PW1, PW2, PW3, DW1, and DW2, were taken without oath. Despite the respondent's assertion that all witnesses took an oath before giving their testimonies, this claim is not reflected in the proceedings. It is settled in this jurisdiction that court record is always presumed to be accurately represent what actually transpired in court, this was stated in the case of Alex Ndendya v. R Criminal Appeal No. 207 of 2018) [2020] TZCA 202 (6 May 2020). In light of this legal position, what I observed in the records of the trial court is what I consider to be correct. As I stated, none of the witnesses' testimonies were taken under oath, this was contrary to Rule 46(2) of the Magistrates' Courts (Civil Procedure in Primary Courts) Rules, GN No. 310 of 1964, which states: ' The evidence of each witness shall be given on affirmation save in the case of a child of tender years, who in the opinion of the court does not understand the nature of the affirmation.' [Emphasis added] io This rule mandates that the testimony of any witness must be taken under oath, except for a child of tender age. I examine the ages of all witnesses who testified, they were all above the tender age; thus, their testimonies should have been taken in compliance with this rule. In addition to Rule 46(2), which mandates that the evidence of each witness shall be given on affirmation, Section 4(a) of the Oaths and Statutory Declarations Act [CAP 34 R.E. 2019] also makes it mandatory for witnesses giving evidence in court to do so under oath. It provides; 'Subject to any provision to the contrary contained in any written law, an oath shall be made by- (a) any person who may lawfully be examined upon oath or give or be required to give evidence upon oath by or before a court.' I wondered whether this provision also applies to the primary court, and subsequently, I examined Section 2 of the Oaths and Statutory Declarations Act, which defines a court as follows; 'Every person or body of persons having authority to receive evidence upon oath or affirmation.' As outlined in Rule 46(2), the magistrate is required to take evidence from witnesses upon affirmation. Thus, since the magistrate is authorized to take evidence under oath, it follows that the magistrate sitting at the primary court is also included under the definition provided li in Section 2 above. Therefore, the Oaths and Statutory Declarations Act applies to the primary court as well. The omission to take evidence under oath vitiates the proceedings. This was stated in the case of Irinqa International School v. Elizabeth Post (Civil Appeal No. 155 of 2019) [2021] TZCA 496 (20 September 2021), that; Ms to what is the effect of omitting to administer oath to witnesses before they give evidence the law is settled. The requirement for witnesses to give evidence under oath is mandatory and the omission to do so vitiates the proceedings.' Similarly, in the case of Catholic University of Health and Allied Sciences (CUHAS) v, Epiphania Mkunde Athanase Civil Appeal No. 257 of 2020 (unreported), the Court stated; 'W/7?ere the law makes it mandatory for a person who is a competent witness to testify on oath, the omission to do so vitiates the proceedings because it prejudices the parties' case.' See also the case of Joseph Elisha v. Tanzania Postal Bank (Civil Appeal No. 157 of 2019) [2021] TZCA 518 (24 September 2021). These decisions indicate that the omission to take evidence under oath vitiates the proceedings. Given that all the witnesses' testimonies 12 were taken without oath, the proceedings before the primary court are vitiated. The failure to administer the oath to witnesses alone is enough to dispose of this appeal. However, given that the issue of jurisdiction has been raised, it is prudent to address it before considering the remedies for proceedings invalidated by this omission. The appellant submitted that the primary court lacked jurisdiction to hear this matter because the law governing cooperative societies disputes requires that any dispute concerning the business of cooperative societies must first be resolved amicably through negotiations or reconciliation before being heard in an ordinary court. The appellant cited Regulation 83(1) of the Cooperative Society Regulations, GN No. 272 of 2015, which reads: 'Dispute concerning the business of a cooperative society between the members of society or persons claiming through them, between the members of society or person so claiming and the board or any officer or between one cooperative society and another shall be settled amicably through negotiation or reconciliation.' By citing this regulation, the appellant's advocate argued that since the claim in the trial court involved a dispute related to a cooperative society, it should have started with negotiation and reconciliation. 13 Therefore according to her, filing this case in the primary court was premature. To buttress her argument he refereed the court to the cases of Raphael D Sindano & Others v. Mtande Amcos Ltd (PC Civil Appeal No 1 of 2023) TZHC 17744 (7 June 2023) and Posta na Simu Saccos v. Christopher Ernes Kowi (PC Civil Appeal No. 17 of 2022) [2022] TZHC 13644 (5 October 2022). In response, the respondent briefly stated that the matter did not concern the business of a cooperative society, thus, the primary court had jurisdiction to try it. Following the submission of parties on this issue I examined the claim or cause of action in the primary court. The respondent's claim against the appellant was for the payment of Tshs. 15,000,000/= which he had loaned to the appellant to establish the cooperative society. According to the evidence, the respondent was not a member of the cooperative society. In the case of Babati SACCOS (T) Ltd & another v. Reginald Sauka (Land Appeal No. 67 of 2019) [2020] TZHC 4589 (14 December 2020) this court, when confronted with a similar situation and discussing the applicability of Regulation 83(1), had this to say; 14 'From the wording ofRegulation 83(1), a dispute has to first concern the business of the cooperative society to qualify thereof... If the person is not a member of the society, he may also qualify where such person claims on behalf of a member or the board of the cooperative societies or when business transactions are undertaken between two cooperative societies. In those circumstances, a dispute thereof will be referred to reconciliation or negotiation. It is the opinion of this court that the Regulation excludes all other incidents, which, invariably, have to be dealt with in a normal suit.' Again in the case of Makoa Farm Limited & 2 Others v. Uduru Makoa Agricultural & Another (Civil Case No 4 of 2022) [2023] TZHC 16882 (27 April 2023) this court had this to say; ' The wording of this provision is too obvious such that, it is incapable of any interpretation other than that, a dispute falling under the purview of section 83(1) must not only concern the business of a cooperative but should be between members of the society or persons claiming through them, between a member and the board or any officer of the society or between two or more societies.' Analyzing Regulation 83(1) in light of the cited authorities, it is clear that the dispute to be resolved under this regulation must first pertain to a cooperative society. Additionally, if the person is not a member of the society, they can file a claim on behalf of a member, the board of 15 cooperative societies, or in cases where business transactions occur between two cooperative societies. In Asha Iddi vs Babati SACCOS Ltd, (Civil Appeal No. 30 of 2019) [2020] TZHC 2192 (12 June 2020) the court elaborated on the definition of 'business of a cooperative' as follows; 'a business of cooperative societies is savings and credit facilitation to their members.' Reverting to the case at hand, I have previously explained that the respondent's claim pertains to the repayment of a loan given to the appellant to start a business. The evidence indicates that out of the Tshs. 21,000,000/= loaned, the appellant has already repaid Tshs. 6,000,000/=. The outstanding balance of Tshs. 15,000,000/= is what prompted the respondent to bring the matter before the primary court. In light of these claims, it is evident that the claims brought before the primary court pertain to a breach of contract rather than cooperative business. Even if we assume the claim is not for a breach of contract, I still find that the claim would not fall under Regulation 83(1) because the respondent is not a member of the cooperative society and, therefore, is not bound by its regulations. 16 I have carefully read the case cited by the appellant. Starting with the case of Raphael Sindano I noted the facts differs with the case at hand because, in that case, both parties were members of the society, and the claim concerned to the business of the cooperative society, unlike the present case. However, the case of Posta na Si mu Saccos contradicts the earlier decisions I cited, which ruled that the regulation does not apply to non-members. In contrast, Posta na Si mu Saccos asserts that the regulation applies to all persons, whether they are members or not. According to legal principles, when a court is faced with conflicting decisions of its own, the practice is to follow the most recent one. This principle has been upheld in several Court of Appeal cases, such as Geita Gold Mining Ltd v. Jumanne Mtafuni (Civil Appeal No. 30 of 2019) [2021] TZCA 157 (3 May 2021), Ardhi University v. Kiundo Enterprises T Limited (Civil Appeal No. 58 of 2018) [2021] TZCA 545 (21 September 2021), and Arcopar (O.M) S.A v. Harbert Marwa and Family & 3 Others Civil Application No. 94 of 2013, (unreported), where it was held; '... where the court is faced with conflicting decisions of its own, the better practice is to follow the more recent ofits conflicting decisions 17 unless it can be shown that it should not be followed for any of the reasons discussed above.' Given this legal stance, and considering that Posta na Simu Saccos was decided on 5th October 2022, while Makoa Farm Limited was decided on 27th April 2023, the recent ruling in Makoa Farm Limited will guide my decision in this matter. Having chosen to follow the ruling in Makoa Farm Limited, and given that I have previously determined that the respondent was not a member of DINYANGA AMCOS and thus not covered by Regulation 83(1), I find the jurisdictional issue to be without merit. Consequently, I conclude that the trial court had jurisdiction to hear this matter. After determining that the trial court had jurisdiction over this case, I proceeded to assess the appropriate remedy and the way forward regarding the failure to administer an oath to the witness, which I had previously identified. As previous noted the failure to administer the oath compromises the validity of the proceedings, I hereby declare the trial court's proceedings in Civil Case No. 12 of 2023, along with the judgment and decree, as null and void. Similarly, the proceedings, judgment, and decree 18 of the first appellate court are also declared null and void, as it was derived from invalid decision of the trial court. Therefore, exercising the powers vested in me under Section 30(2) (b) of the MCA, I proceed to quash and set aside the proceedings, judgment, and decree of both the first appellate court and the trial court. For the sake of justice, I remit the case file to the primary court to be tried de novo by another magistrate. Given that the irregularity has been raised by the court suo motu, each party shall bear its own costs. It is so ordered. Dated at Mtwara this 20th August, 2024 M.B. Mpaze Judge Court: Judgment has been delivered today in the presence of the respondent but in the absence of the appellant. M.B. Mpaze Judge 20/8/2024 19