PC CIVIL APPEAL NO

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA PC CIVIL APPEAL NO. 55 OF 2023 (Arising from Civil Appeal No. 4 of2023 ofMusoma District Court, Originating from Civil Case No 139 of2022 at Bwasi Primary Court) HASARA MKARUKA........ ...............................................APPELLANT VERSUS KIKUNDI CHA TUINUANE BUTATA..................... RESPONDENT JUDGMENT 29th July & 06th August, 2024 M, L. KOMBA, J; This is the second appeal by the appellant herein. Previous, the appellant herein was aggrieved by the decision of the District Court of Musoma at Musoma (the first appellate court) in Civil Appeal No. 04 of 2023 where it uphold the decision-of trial court in Civil Case No. 139 of 2022 at Bwasi Primary Court (the trial court) that appellant has to pay respondent amount of Tshs. 870,000/= as the approved dept and Tshs. 50,000/ as general damage. In summary, this appeal traces its roots after the appellant who was a member in the Society with a name of Kikundi Cha Tuinuane Butata (the respondent) in which members has rights and responsibilities, Page 1 of 6 without forgetting conditions on various aspects. Appellant being active member of the respondent was entitled to be contribution from the respondent worth Tsh 1,200,000/= for the wedding of his daughter, and he received that contribution. Sometime after the wedding, appellant decided to withdraw his membership from the respondent. That decision by the appellant has conditions which has to be fulfilled. As per respondent the appellant did not fulfill the conditions when he decided to withdraw his membership. The trial court found the appellant, then mdaiwa, did not fulfill his obligation and it ordered respondent to be paid the amount above mentioned. The first appellate court uphold what was decided by the trial court hence this appeal with five grounds which he decided to drop two of them and remain with three which are; 1. That the first appellate court erred in law and fact to pronounce the judgment in favour of the respondent while he knew that one Maswale Maswale have no any power of attorney given from Kikundi cha Tuinuane Butata to prosecute the appeal, the power of attorney which signed by the advocates or magistrate and to be registered in the office ofregistrar of documents. 2. That the first appellate court erred in law and fact to entertained one Maswale Maswale to proceed with Civil Appeal Case No. 4 of 2023 before the court of law while he knew that Maswale Maswale is not a party of this case and no legs to stand on behalf of the respondent. Page 2 of 6 3. That the first appellate court erred In law and fact for holding that the appellant Is liable to returned back Tshs 870,000/=as a contribution in the reason that the appellant was already received from 29 members without state about the money contributed to 8 members among from 37 members from the appellant 4. That the first appellate court was based and erred in law and fact for delivering a judgment without giving any room or right to the appellant to appeal in the High Court against the trial decision 5. That the first appellate court erred in law to order costs against the appellant while the procedural errors if any were caused by the trial court. When the matter was placed for hearing both parties stood solo without legal representation. The respondent being a society was represented by Mr. Maswale Maswale. Appellant was the first to address this court after he dropped two grounds. It was his submission that the trial court erred to order he has to pay back what he earned while he was a member because all members benefited when they were invited at his home for the pre ceremony party as he incurred costs in preparation of food and drinks as entertainment. He lamented that trial court only dealt with his dues and forget about the pre wedding ceremony costs. He further submitted that he was contributing to burial events and the trial court did not deduct Page 3 of 6 the amount. It was his position that respondent is not entitled to claim back money which was spent in ceremony. He was brief in the 4th ground where he notified this court that he appealed to the district court. On the 5th grounds he complained of the costs as there was no reason assigned. On his side the representative of the respondent submitted that Item 17 of their constitution which was signed by the appellant restrict withdraw of member if he benefited from the society. He further submitted that the respondent gave the appellant Tsh. 1,200,000/ for the ceremony as per constitution and during trial the trial Magistrate deducted the cost of which he contributed and the remaining sum was decreed to them. However, it was his submission that food costs to visitors is not contribution in terms of their constitution. Appellant was given right to appeal and the trial court was correct to award costs. During rejoinder appellant clarified that when he joined the society, he was not informed of that conditions although he was a leader and nobody tip him on that. With the above position of the nature of the appeal, it is appropriate now to direct my mind on the merit or otherwise of the appeal while Page 4 of 6 noting that this is the second appeal and the practice is that, the second appellate court should very sparingly depart from concurrent findings of fact by the trial and first appellate court. Only in exceptional circumstances, that any interference may be warranted and it is possible when it is clearly shown that there was misapprehension of the evidence, miscarriage of justice or violation of some principles of law or procedure by the courts below. See Joseph Safari Massay vs Republic, Criminal Appeal No. 125 of 2012, and Felix s/o Kichele & Another vs Republic, Criminal Appeal No. 159 of 2005 and Abdallah Mussa Mollel @Banjoo vs DPP, Criminal Appeal No. 31 of 2008 (all unreported). Apart from the 4th ground which appellant submitted positive, I shall combine the 3rd and 5th ground of appeal about the deduction made by the trial court. Appellant explained that he prepared the ceremony for society members who visited into his home but the costs of that ceremony was not deducted. The representative of the respondent clarified that costs incurred by the appellant to his guests during pre- * ’ ^**** ceremony is not subject to the deduction from due$?z6$. per constitution. All what is subject to deduction was done by the trial court. 'A ir X $ - $ F Page 5 of 6 I had time to read the trial court decision and the 1st appellate court and found at page 5 of the judgment where he noted appellant signed the constitution and I find he was aware of its content contrary to his submission that he was not aware of the said condition as the constitution was not read to him when he joined. The first appellate court found the deduction was done to valid members and the amount due was what was decreed. I don't find reason not to believe the calculations made so far as the complain of the appellant was on awareness of the condition to repay. In their reply respondent prayed for costs and it was right for the first appellate court to grant costs of the suit. He need not to register any reason for that except when he denied to grant. Being done with the combined ground 3 and 5 of appeal I find I have nothing to disturb the concurrent findings of two lower courts. The appeal has no merit and I hereby dismiss it. No order as to costs. k M. L. KOMBA Judge 06 August 2024 Page 6 of 6