GODSON MUNUO JUDGEMENT

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: MWANDAMBO, J.A., KIHWELO, J.A. And MGEYEKWA, J.A.) CIVIL APPEAL NO. 480 OF 2023 GODSON S. MUNUO............................................................................... APPELLANT VERSUS UMOJA SAVINGS AND CREDIT CO-OPERATIVE SOCIETY LIMITED............................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Mwenempazi, dated the 3rd day of June, 2021 in Civil Appeal No. 6 of 2020 JUDGMENT OF THE COURT 20th & 25th March, 2025 KIHWELO, J.A.: The High Court of Tanzania sitting at Moshi in Civil Appeal No. 6 of 2020 on 3rd June, 2021 endorsed the decision of the District Court of Moshi at Moshi in Civil Case No. 1 of 2019 (the trial court), which declared the appellant herein, to have breached the contract earlier on entered between the appellant and the respondent. In that case, the trial court further ordered the appellant to pay the respondent Tanzanian Shillings Eight Million, Four Hundred and Three Thousand and Three Hundred Shillings (TZS. 8,403,300.00) only being an outstanding amount from breach of contract. In order to facilitate an easy appreciation of the sequence of events leading to the instant appeal, it is convenient to set out albeit briefly, the background to the case as can be gleaned from the pleadings and the evidence on record. It all began way back on 22nd November 2013 when the respondent, a corporate body incorporated under the Cooperative Societies Act, No. 6 of 2013, executed an agreement with the appellant. Under that agreement, the appellant was supplied with 16,998 kilograms of soya beans with an understanding that, he was to sell them at TZS. 1,400.00 per kilogram. It was further agreed that, the respondent was to deliver the soya beans in Dar es Salaam and the appellant was responsible for selling them and deposit the proceeds in the respondent's bank account No. 0152089867 held with CRDB Bank under the name of UMOJA SACCOS. Apparently, the appellant sold the soya beans which was supplied to him, but quite unfortunate and for an obscure cause he deposited Tanzanian Shillings Thirteen Million, Nine Hundred Thousand Forty-Four Shillings (TZS. 13,944,000.00) only through the said bank account, leaving the remaining amounts of Tanzanian Shillings Eight Million, Four Hundred and Three Thousand and Three Hundred Shillings (TZS. 8,403,300.00) unsettled. The respondent was not delighted, following which on 11th July 2017 through its advocate they sent a letter to the appellant demanding an immediate settlement of the outstanding amount. However, the appellant did not heed to the demand. It was alleged that the appellant's failure to pay the respondent has occasioned to serious loss of income and untold sufferings. Consequently, the respondent on 9th August, 2017 instituted a Civil Case No. 5 of 2017 at Sanya Juu Primary Court claiming among other things, payment of the remaining balance of Tanzanian Shillings Eight Million, Four Hundred and Three Thousand and Three Hundred Shillings (TZS. 8,403,300.00) only. Later, on 8th September, 2017 the appellant filed Misc. Civil Application No. 1 of 2017 in the District Court of Siha seeking to transfer Civil Case No. 5 of 2017 from Sanya Juu Primary Court to the District Court of Siha at Siha so that the appellant could engage the services of an advocate. On 9th November, 2017 the District Court granted the order for transfer of the case and the same was filed at the District Court as Civil Case No. 2 of 2017 before it was later withdrawn with leave to refile by order of the court dated 27th November 2018 and ultimately refiled as Civil Case No. 1 of 2019. The appellant on its part totally refuted the respondent's claims mainly by raising a general denial and alleged that the respondent's claims were false, baseless, fabricated, frivolous and with no legal justification as the appellant was not indebted to anything or at all. At the height of the trial on 20th April 2020 the learned Magistrate who presided over the trial found out that the respondent proved the case to the required standard as hinted above and, consequently, decided the suit in favour of the respondent. Upset by that decision, the appellant approached the High Court in his first appeal in which he raised eight grounds of complaints which however, the High Court found all of them unmerited and dismissed the first appeal, hence this second appeal. The appellant presently seeks to overturn the decision of the High Court through a memorandum which is comprised of two points of grievance, namely: 1. That the High Court Judge erred in law and fact in dism issing the 1st appeal in favour o f the respondent w ithout discovering that the tria l D istrict Court had no pecuniary jurisdiction o f hearing the su it 2. That the High Court Judge erred in law and fact in dism issing the 1st appeal in favour o f the respondent without considering that a ll eight (8) grounds raised by the appellant in the High Court were sufficient enough in disposing the case, the same the respondent failed to defend a case in the standard required by the law. When, eventually the matter was placed before us for hearing on 20th March, 2025, the appellant enjoyed the legal services of Mr. Elia Johnson Kiwia, learned counsel, whereas the respondent appeared through Mr. Emmanuel Lazaro Lukumay, the Board Chairman. Earlier, on 26th September, 2023, Mr. Kiwia had lodged written submissions in support of the appeal in terms of rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 which he fully prayed to adopt during the hearing. In the upshot, Mr. Kiwia invited us to allow the appeal with costs, whereas Mr. Lukumay urged us to dismiss the appeal with costs. Following a brief dialogue between Mr. Kiwia and the Bench, the learned counsel elected to abandon the second ground of appeal and therefore, argued the lone ground of appeal. He then, highlighted the written submissions in support of the appeal. In support of the solitary ground of appeal Mr. Kiwia contended that the trial court had no requisite jurisdiction to entertain the matter which was before it in the first place. Elaborating, he argued that the dispute before the trial court was for payment of the outstanding amounts of Tanzanian Shillings Eight Million, Four Hundred and Three Thousand and Three Hundred Shillings (TZS. 8,403,300.00) only which was not within the pecuniary jurisdiction of the court. According to him, the pecuniary jurisdiction of the primary court for the recovery of any civil debt arising out of contract is thirty million shillings. He cited to us section 20 of the Written Laws (Miscellaneous Amendment) Act, 2016 which amended section 18 (1) (iii) of the Magistrates' Courts Act, Cap. 11 (the MCA). He took the view that, the trial court had no pecuniary jurisdiction to entertain the matter which was filed in 2019 three years after the amendments to the MCA. In further arguing the appeal, Mr. Kiwia submitted that, the issue of jurisdiction was not raised in the first appeal, however he was of the view, and rightly so in our mind that jurisdiction being a point of law can be raised at any time. He paid homage to the case of Barclays Bank Tanzania Limited v. Tanzania Pharmaceutical Industries and Others, Civil Application No. 62/16 of 2018 (unreported). Furthermore, Mr. Kiwia submitted that, he was aware that, the appellant is the one who initiated the transfer of the case from the Primary Court to the District Court but all the same, parties cannot by consent give a court jurisdiction which it does not possess. Reliance was placed on the case of Meneja Kiwanda cha Saruji Wazo v. Hermelida Joseph Bikongoro, Miscellaneous Land Case Appeal No. 10 of 2020 (HC) to fortify his argument. He urged us to find that this ground has merit and therefore, allow the appeal. Mr. Lukumay, quite understandably did not have anything useful to submit apart from beseeching us to dismiss the appeal with costs for being devoid of merit. In the light of the foregoing submissions, the most vexing question which stands for our determination is whether the trial court was properly clothed with jurisdiction to hear and determine the matter before it. In an attempt to answer the issue under consideration, we think, it is appropriate to appreciate what the provisions of section 47 (1) (b) of the MCA under which the transfer was made, provides; "Where any proceeding has been instituted in a prim ary court, it sh a ll be law ful, a t any tim e before judgm ent, for- (a) N/A (b) The d istrict court or a court o f a resident m agistrate w ithin any part o f the local jurisdiction o f which the prim ary court is established, to order the transfer o f the proceedings to itse lf or to another m agistrates'court; or (c) N /A." To resume to the matter under our consideration. Indeed, the record of proceedings is quite clear that Mr. Kiwia on 8th September, 2017 acting under the instructions of the appellant filed Misc. Civil Application No. 1 of 2017 in the District Court of Siha at Sanya Juu seeking transfer of Civil Case No. 5 of 2017 from Sanya Juu Primary Court to the District Court of Siha so that the appellant could engage the services of an Advocate. That application was lodged under certificate of urgency certified by Mr. Kiwia and the application was predicated on section 47 (1) (a) and (b) of the MCA and section 95 of the Civil Procedure Code, Cap. 33 and was supported with an affidavit duly sworn by the appellant. On the basis of that application, on 9th November, 2017 the District Court granted the application and the matter was transferred to the trial court where it proceeded as alluded before. Mr. Kiwia did not contest this part of the events but his only contention is that the trial court was not clothed with the requisite jurisdiction to entertain the matter which is the pith and marrow in the case before us. This brings us to a brief discussion of the law relating to jurisdiction of the primary court under section 18 of the MCA. Specifically, section 18 (1) (a) (iii) of the MCA reads: "A prim ary court sh a ll have and exercise jurisdiction. (a) in a ll proceedings o f a civ il nature- (0 N/A (ii) N/A (iii) fo r the recovery o f any c iv il debt arising out o f c o n tra c tif the value o f the subject m atter o f the su it does not exceed thirty m illion shillings, and in any proceeding by way o f counterclaim and se t-o ff therein o f the same nature not exceeding such value; and (b) N/A (c) N/A (d) N/A (e) N /A." Now, back to the appeal before us, we have studiously examined the record of appeal in light of the submissions of the learned counsel and we think that, we do not need travel a very long distance on the issue at hand. From our reading and understanding of the provisions above, it is clear to us that the jurisdiction of the primary court in civil proceedings for the recovery of any civil debt arising out of contract is thirty million shillings and therefore, recovery of Tanzanian Shillings Eight Million, Four Hundred and Three Thousand and Three Hundred Shillings (TZS. 8,403,300.00) which was outstanding was within the pecuniary jurisdiction of the primary court to which the respondent had earlier on lodged the case and not the District Court. By and large, the case before us presents unique circumstances. One, the respondent aware of the pecuniary jurisdiction of the primary court in terms of section 18 (1) (a) (iii) of the MCA filed Civil Case No. 5 of 2017 at Sanya Juu Primary Court. Two, the appellant equally aware of the pecuniary jurisdiction of the primary court initiated the process of transfer of the case from the primary court to the district court in order to engage an advocate so as to exercise the right to legal representation. Three, the transfer of the impugned matter from the primary court to the district court was done pursuant to the court order and therefore, the argument that parties had consented to it do not arise. Four, the circumstances at that time made it compelling for the court to grant the order to enable the appellant exercise the right to legal representation since by then advocates were not permitted to appear before the primary court unlike now. Hence transfer of the case to the district court was the only viable option to ensure that the appellant could enjoy the right to legal representation. We, on our part, think the trial court, in respect of entertaining the matter correctly resorted to the exercise of jurisdiction for the reasons we have explained above. We are satisfied, as the learned first appellate Judge did, that the trial court was right to declare that the appellant breached the contract. Mr. Kiwia sought to convince us that the trial court had no jurisdiction despite the appellant being the one who moved the trial court to order transfer of Civil Case No. 5 of 2017 from Sanya Juu Primary Court to the District Court. We do not accept this argument as sensible and correct. In our view, we find it completely inconceivable that Mr. Kiwia who moved the trial court to transfer the respondent's case which was properly filed at the primary court to itself and determine it, faulting the same trial court he earlier on moved it. We are decidedly of the view that, such a convenient escape route is not, unhappily, available to the appellant. To hold otherwise, in our considered opinion, would be a sure road to a grave miscarriage of justice and it will be swimming against the tide of justice. Even if we assume for the sake of argument that, the appellant wrongly moved the trial court to transfer the appellant's case which was properly filed before the primary court, then indeed, there is no way the appellant can benefit from his own wrong hence the principle commodum ex injuria sua applies to him. We think it is momentous that we should remark in passing before we take leave of the matter. Whilst we are aware that lawyers come before us representing their client's interests, their primary duty is to the court and the administration of justice and in so doing they are expected to act with integrity, honesty, professionalism and fairness even if it conflicts with their client's interests. That way, they will uphold the integrity of the noble profession and promote public confidence in the administration of justice. We believe that this suffices to remind Mr. Kiwia and others of their primary duty to the court. In view of the foregoing, we find no merit in the appeal and we are loath to meddle with the concurrent findings of the two courts below. Consequently, we dismiss the appeal in its entirety with costs. DATED at MOSHI this 24th day of March, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 25th day of March, 2025 in the presence of Mr. Elias Kiwia, learned counsel for the Appellant and in the absence of the Respondent, is hereby certified as a true copy of the original. COURT OF APPEAL