FISSOO STELI DOMU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ARUSHA SUB- REGISTRY] AT ARUSHA PC CIVIL APPEAL NO. 7325 OF 2024 (Arising from Civil Appeal No. 14 o f 2024, Karatu District Court before Hon. Y. O. Kisengerian - SRM, originating from the Civil Case No. 12 o f 2023, Mang'o/a Primary Court, before Hon. V. N. Bwire - RM) FISSOO STELI DOMU............................................................... APPELLANT VERSUS LEKIMA MICROFINANCE INVESTMENT LTD (Represented by ENOCE PAULO (Loan Officer)..................... RESPONDENT JUDGMENT lCfh & 21st November, 2024 I.C. MUGETA, J. The appellant was aggrieved by the decision of the Karatu District Court which dismissed his appeal against the decision of Mang'ola Primary Court in Civil Case No. 12 of 2023. He has appealed to this court and the petition of appeal is founded on five grounds of appeal. 1. That the judgment o f the first appellate court is bad in law for being bias on appellant, since the first appellate court magistrate did fail to observe that the trial magistrate did not consider the evidence o f the appellant in her decision contrary to the requirement o f the law. 2. That the first appellate court arrived at erroneous decision as it made wrong reasoning and maintained decision o f the trial court that ordered Respondent to pay Tshs. 483, 000/= whilst Respondent did not dispute the appellant evidence Page 1 of 8 that he paid loan and interest therein and no outstanding loan facility moreover appellant was penalized to pay fine o f Tshs. 30, 000/= for delayed last instalment. 3. That, the first appellate court erred in law and fact for blessing that the trial court was correct in admitting the loan agreement marked as PEI and PE2 default notices respectively whilst it contravenes the Stamp Duty Act 4. That, the proceedings, judgment and orders o f the first appellate court is a nullity for blessing the decision o f the trial court that was steamed from a nullity since the respondent representative has no legal capacity to represent the respondent before the court o f law as there is no any power o f attorney or company board resolution was tendered to evidence that he was the one appointed to act on behalf o f the company in the proceedings o f the case at hand. 5. That, the first appellate court erred in law by not considering the written submission filed by both parties and in the nutshell, it totally failed to observe that respondent did concede to the facts that he has no locus stand and prayed for the court to nullify the proceedings o f the trial court. The brief background of this case is that the appellant procured from the respondent a loan facility of Tshs. 800, 000/=. He was obliged to return Tshs. 1,040,000/= interest inclusive within twelve weeks (3 months). The appellant was to pay on weekly instalments, and the last day of payment was 29/01/2021. Until 15/03/2021 the appellant only paid Page 2 of 8 Tshs. 657, 000/= and the unpaid actual debt was Tshs. 383, 000/= plus Tshs. 100, 000/= as a penalty for default which makes a cumulative unpaid debt of Tshs. 483, 000/=. The Respondent successfully sued the appellant before the primary court of Karatu district at Mang'ola for the recovery of the unpaid Tshs. 483, 000/=. Dissatisfied with the decision, the appellant appealed to the District Court of Karatu. He lost again, hence, the instant appeal. The parties filed written submissions containing arguments for and against the appeal. The appellant was represented by Mr. Innocent Reuben, learned counsel while the respondent enjoyed the representation of Mr. Filimon Lameck Maige, learned advocate. I shall deal with the first and second grounds jointly as are similar. The complaint therein is that the appellant's evidence was not considered by the first appellate court when it re-evaluated the evidence. Counsel for the appellant identified such evidence as being the allegation of the appellant that he paid the whole loan and interest save for the penalty of Tshs. 30,000/= accruing for delayed payments. According to the learned counsel, the other piece of evidence which was not considered is that the appellant borrowed Tshs. 700,000/=, not Tshs. 800,000/= as alleged by the respondent. In the written submission in reply, counsel for the respondent did not make meaningful response to the two arguments. The trial court record has it that the loan agreement was a written document containing the repayment by instalments schedule. The loan agreement and the repayment schedule were tendered and admitted as Exhibit PEI collectively. The appellant never contested their Page 3 of 8 admissibility. The loan agreement shows that the respondent had to repay Tshs. 1,040,000/=. According to the repayment schedule and the evidence of Enoce Paul (SMI), he had to repay the loan in 12 weeks. Within that period, he was able to pay Tshs. 657,000/= only. The appellant testified not only that he borrowed Tshs. 700,000/= not 800,000/= but also that he fully paid back the load. In view of the evidence in exhibit PI, it cannot be said that the evidence of the appellant was not disputed. The trial court considered the evidence for the respondent in exhibit PI against the oral evidence of the appellant that he had repaid the whole loan and held: "Maelezo ya mdaiwa kuwa alilipa deni iote halina (sic) uthibitisho" I agree with the above holding. There is no evidence from the appellant to prove that he paid the debt. His oral evidence of that fact cannot override the undisputed documentary payment schedule in exhibit PI. In confirming the above holding of the primary court, the district court held: "the trial court considered aii the evidence tendered before it ... That holding is partly true. I agree that the evidence that the appellant had satisfied the debt was considered. However, both lower courts did not consider the evidence that the appellant borrowed Tshs. 700,000/= only not Tshs. 800,000/=. The complaint of the appellant on this aspect is valid and vindicated by the judgment of the district court. I have read Page 4 of 8 the petition of appeal at the district court it is glaringly clear therein that this issue was raised at the district court but it escaped the attention of the learned resident magistrate. On that account, while reminding the learned magistrate at the first appellate court of the need to always consider all the arguments advanced by the parties to a case, I have the duty to consider and decide upon it. As indicated somewhere herein above, exhibit PEI constitutes a loan agreement and the repayment schedule. Paragraph 1 shows that the appellant borrowed Tshs. 800,000/=. The appellant did not dispute the admissibility of this contract. Since in terms of section 100 of the Evidence Act [Cap. 6 R.E 2022], the contents of a document are provable by the document itself, the oral evidence of the appellant as to the terms of the loan agreement is unacceptable. I hold that the appellant borrowed Tshs. 800,000/= and not Tshs. 700,000/= he alleges. In view of the foregoing, I find the first and second grounds of appeal without merits. They are dismissed. I move to the third ground of appeal. In his submission on the third ground of appeal, counsel for the appellant contended that the admission of PEI and PE2 was illegal as it contravenes section 47 (1) of the Stamp Duty Act, which requires instrument chargeable with stamp duty not to be admitted in evidence for any purpose unless stamp duty is paid. In his reply, Filimon Maige, resisted the argument. He submitted that the irregularity of failure to pay stamp for chargeable document does not render it inadmissible because the irregularity is curable by payment Page 5 of 8 of the same. He referred to the case of Fatuma S. Bassebe Vs Jason Mutagulwa Rwiza (Civil Appeal No. 40 of 2021) [2022] TZCA 381 (22 May 2024, which held that: "Failure to stamp the contract o f sale was an irregularity not affecting jurisdiction o f the court and was cured by section 73 o f the Civil Procedure Code [Cap. 33 R.E 2019]" The respondent is ordered to pay the duty with which the instrument is chargeable I agree with counsel for the respondent. The irregularity is, indeed, curable by ordering payment of the due charges as I hereby do. The third ground of appeal has no merits. It is dismissed. The fourth and fifth grounds are that the respondent and her representative had no locus standi to sue for want of board or directors' resolution to sue. Mr. Mmari cited section 147 of the Companies Act, Cap. 212 R.E 2019, which provides that one can operates business of the company through board resolution. He argued that as no such resolution was produced in court, the suit was incompetent. He supported his line of argument by referring to the cases of Urio Estate Limited vs Kyela Valley Food Limited, Civil Application No. 28 of 2014 CAT at Dar es salaam (unreported), and Bugere Coffee Growers Ltd vs Sebaduka and Another [1970] 1 E.A 147, where it was held that legal proceedings by a company must be authorized either by a company resolution or board of directors' meeting. With respect this is not the position of the law. In the case of Mohan's Osterbay Drinks Limited Vs British American Tobacco Kenya Limited (Civil Application No. 70 of 2022) [2024] TZCA 159 (5 March 2024) and Simba Papers Converters Limited v. Packaging and Page 6 of 8 Stationary Manufacturers Limited & Another, (Civil Appeal Case 280 of 2017) [2023] TZCA 17273 (23 May 2023) the Court of Appeal held that the board's resolution is required when the dispute revolves on conflicts within the company and one of its shareholders or directors. In this case the dispute is on a contract between a company and a borrower. In simba Papers Converters Limited (supra) it was held that the statement on the need of board resolution in Bugere's case (supra) is of limited application. Admittedly, the respondent conceded about lack of the board's resolution in her submissions at the district court and prayed for the nullification of the proceedings and quashing the judgment. The district court, once again, did not consider this concession which is the basis of the complaint in the fifth ground of appeal. It is my view that that the admission in itself was not a warrant for the district court to accept the argument as true and valid. Even if the district court did not deliberate on the argument, I am settled that had it done so it would have rejected it because the same is not legally sound for a reason I have stated the preceding paragraphs. Consequently, I find the fourth and fifth grounds of appeal having no merits too. They are dismissed. In the event, I find the whole appeal unmerited. It is dismissed with costs to the respondent. Page 7 of 8 Court: Judgment delivered in chambers in absence of both parties. Sgd: I.C. MUGETA JUDGE 21/ 11/2024 Page 8 of 8