ismail issa ismail vs chairman ilulu saccos ltd 2009 tzhc 125 26 august 2009

IN THE HIGH COURT OF TANZANIA AT MTWARA DC. CIVIL APPEAL NO. 4 OF 2008 ORIGINAL LINDI DISTRICT COURT CIVIL CASE NO. 6 OF 2008 ISMAIL ISSA ISMAIL ........................ APPELLANT VERSUS THE CHAIRMAN X ILULU SACCOS LTD J ....................RESPONDENT Date of Last Order - 04/8/2009 Date of Ruling - 26/8/2009 RULING ON THE PRELIMINARY OBJECTION POINT OF LAW MIPAWA, J. Mr. Mlanzi learned Counsel for the Respondent/applicant for this Preliminary Objection has before the hearing of this appeal from the original Lindi District Case number 6 of 2008 raised a preliminary point on the jurisdiction of the trial court. He asserts that this appeal is misconceived incompetent and bad in law for having arisen from the suit of which the trial court has had no jurisdiction for presiding over the parties’ disputes involving a co-operative society and its member. Mr. Mlanzi submitted his arguments by way of written submission as ordered by this court. 1 In his submission the learned counsel asserts that since the trial court had acted without jurisdiction for presiding over the suit, then the whole proceedings of the trial court are null and void thus rendering this appeal devoid of legs to stand upon. He says that though the matter was not raised at the trial court the matter of jurisdiction can be raised at any state as it goes to the roots as held by this court in the case of Saidi Abdallah vs. Rashidi Mshamu (HC) Civil Appeal No.133 o f 2003 D ’Salaam registry unreported . Mr. Mlanzi submitted that there are numerous court of appeal of Tanzania and the High Court to the effect that once a special forum for dealing with a particular subject matter has been established such as in the instant case, the courts would normally entertain not such matters, unless a party proves to the satisfaction of the court tht the remedy sought cannot be obtained from the special forum. He said, in the case at hand, reference to the Registrar of co-operatives societies and hence forth to the Minister responsible for cooperative societies by way of appeal is an established special forum, the appellant had to seek a recorse to. It was wrong on the part of the appellant to have instituted the dispute as a civil action in the court of law, and it was equally wrong he added, for the trial court to have adjudicated upon the matter as it purported to have been the case. The Respondent is a saving and credit Co-operative society commonly known as llulu Saccos which grants loan to its members. He told the court that once a Co-operative Society is duly registered interms of the provisions of sections 25 and 27 of the Co-operative societies Act 20/2003 the functions and affairs of the Society are and or have to be governed by the Co-operative societies Act no.20 of 2 2003 together with Rules as stipulated in the Co-operative Societies Rules made in the Government notice no.280/2004. The learned counsel for the Respondent/applicant submitted further that under rule 52(1) any dispute between a member of a co­ operative society and the Board or officer of the said society has to be referred to the Registrar of Co-Operative society for determination by himself and or for reference for arbitration. It is further provided under Rule 52(b) that any aggrieved party may appeal to the Minister party may appeal to the Minister responsible for Co-operative Societies whose decision is final. Rule 2 defines a dispute to mean; ...... Disagreement or argument, or difference of option between members of the society or persons claiming through them and the Board of any officer or between one society and another.... Mr. Mlanzi was of the view therefore that the instant dispute falls in the ambit of the provisions or Rules 2 and 52(1) as a dispute which is fit for reference to the Registrar for determination and/or arbitration. It is therefore clear that he adds, the rules stated above provide for a special forum for dealing with disputes arising in Co-operative Societies. Thus there is no room for matters relating to the business of the Co-operative Society to be instituted as an ordinary suit in the District Court or the Resident Magistrate Court, as the case may be. The trial Court therefore lacked jurisdiction for presiding over the original suit. The proceedings at the trial court have to be dismissed accordingly. Mr. Mlanzi learned advocate referred to me the case of Sabas Mzee Massawe v. Anael M. Pallango & others 2, Civil Case 3 No. 16 o f 2001, The Case o f Gerald A. Nkya vs. Obed 1. Munis and 6 others Civil Case No. 29 o f 1997 and Misc. Civil A pplication No. 137 o f 2002 K ibong’oto Warri Rural Co-operative Society Ltd Vs. Kaboko Rural Co-operative Society Ltd. Submitting in reply to the preliminary objection the appellant argued that this point of jurisdiction is of the lower court to decide or determine first because it did not decide on it thence this court should order the lower court to do so. He added further that the court judgment submitted by the Respondent do not tie the hands of this court as they are High Court’s decisions. He also says that the cases are distinguishable from the facts of this case in that llulu Saccos is a Limited liability Company incorporated under the companies Act while the Cooperative Societies .is not. He submitted that the Registrar of Cooperative is not vested with jurisdiction to the exclusion of courts of law. Now having gone through the submissions of both parties, let me have a cursory glance on the case law the applicant has submitted to me in support of his preliminary objection that since the case falls under the ambit of Rules 2 and 52(1) then the courts lacked jurisdiction and therefore the proceedings of the lower court were null and void and should be declared as such and be dismissed. First the Case of Sabas Mzee massawe v. Anael Palangyo and two others (H.C) Civil Case No.16 o f 2001 Arusha registry unreported Msoffe, J. as he then was held that; 4 ..... indeed this will be in line with the position which has always been taken by the courts i.e where there is an effective and appropriate forum created to deal with a particular dispute it is always advisable that parties resort to that avenue. In the above case the learned Judge struck of the case on reason that section 121 of the Cooperative Societies Act ousted the jurisdiction of the courts section 121 of the cooperative society provided as follows; .... Save so for as it is expressly provided in this Act no court shall have any jurisdiction in respect of any matter connected. With the dissolution of a registered society.... I don’t in this circumstances doubt the decision of mylearned Brother Judge Msoffe in the case of Sabbas Mzee Masawe supra because the section he quoted i.e s. 121 of the Cooperative Act is clear in terms and is in no uncertainly and unequivocal as rightly also pointed out by the late Judge Biron in the case of Mtenga v. The University o f Dar es Salaam [1971] HCD no.247 that; .... It is trite to observe that a court is and has to be for the protection of the public, Jealous of its jurisdiction, and will not lightly find its jurisdiction ousted. The Legislature may, and often does, I am afraid, for too often, oust the jurisdiction of the court in certain matters, but for the court to find that the legislature has ousted its jurisdiction, the Lagislature m ust so state in no uncertain and unequivocal terms [emphasis mine] 5 My learned brother Judge Msoffe in my view was confronted in that case of Sabbas Mzee Massawe supra with a situation whereby the provision i.e s. 121 of the Co-operative act expressly states in no uncertain and unequivocal terms so to speak. In my view the case of Sabbas Mzee Massawe is not helpful to the learned Counsel Mr.Mlanzi regard being had the coaching and the words of Rules 2 and 51 (1) which requires a dispute to be referred to the Registrar for determination or and arbitration. Mr. Mlanzi learned Counsel relied also heavily on the holding of the case of K ib o n g ’oto Warri Rural Co-operative Society v. Koloko Rural Co-operative Society [H.C] Misc. Civil A pplication no.137 o f 2002 where my learned brother Judge Mmilla held that the suit was incompetent for want of jurisdiction because it was filed in the court of law instead of referring the matter to the Registrar as per rule 23(1) of the Co-operative Society rules GN. 408 of 1991 which reads; .... Any dispute concerning the business of a cooperative society between the members of the society or person claiming through them or between a member or persons claiming through the committee or any officer, or between one society and another shall be referred to the Registrar..... The learned Judge in light of that rule dismissed the case for want of jurisdiction and quoted in support of his decision the case of Sabbas Mzee Masawe Msofe J. supra. However in my view with respect to the learned counsel I am not in line with the holding of the learned Judge in the Case o f K ibong’oto Rural Co-operative Society supra by Mmila, J. with respect because the words of section 121 of 6 the Co-operative Society Act in the case of Sabbas Mzee Massawe supra Msofe, J. [as he then was] where the learned Judge was confronted in that case with what the late Judge Biron stated in the case of Mtenga and the University o f Dar es Salaam supra words which were in no uncertain and unequivocal terms these terms appear in section 121 of the Co-operative Act as follows; .... Save as for as it is expressly provided in this Act no court shall have jurisdiction in respect of any matter connected with the dissolution of a registered society.... In my view the words in rule 23(1) of the Co-operative Society rules GN 408 of 1991 as quoted in the case K ibong’oto Co-operative Society Mmila, J. are by and large don’t state expressly and in no uncertain and unequivocal terms the ousting of court’s jurisdiction and because my hands are not tied with that decision of my learned brother Mmila, J. in K ibong’oto Cooperative Society which case was also relied heavily by Mr. Mlanzi the learned counsel then with respect that case does not aid him at all. The wordings of Rule 52 (1) of the Co-operative Society which Mr. Mlanzi relies upon to apply for the ousting of the jurisdiction of the courts in his case are by and large La meme chose [the samething] with the wordings of rule 23(1) which the learned Judge in the case of K ibong’oto Co-operative Society [Mmila, J] used to dismiss the suit for want of jurisdiction arguing that it has to be referred to the Registrar as the rule speaks. Nevertheless the case is not helpful to the learned Counsel in my opinion. To compare the wordings of Rule 52(1) and rule 23(1) 7 quoted in K ibong’oto Co-operative Society case as I have said, one finds la meme chose. Look at Rule 52(1); .... Any dispute concerning the business of a Co-operative society between the members of the society or persons claiming through them or between a member or persons so claiming and the Board or any office or between one society and another shall be referred to the Registrar....... It is true, I think correctly that as Mr. Mlanzi has also submitted, that the so called special forum have been vested with adjudicating matters but in my opinion special forum are not in lieu of courts but they are there to aid or help the works of courts and not to ouster their [courts] jurisdiction in the absence if any express and unequivocal term. Be that as it may the noble task of adjudication has been vested to the courts by our democratic constitution and therefore it is hardly to remove it. Suffice it to cement mydecision with the Court of Appeal case of Attorney General v. Akonaay [1995] TLR.82 .... Where the constitution establishes or permits the establishment of any other institution or body with excutive or legislative or judicial power, such institution or body is meant to function not in lieu of or in derogation of the three central pillars of the state, but only in aid of and subordinate to those pillars... any purported ouster of jurisdiction of ordinary courts to deal with any justiciable dispute is unconstitutional.... In the event and what I have stated above the application or rather preliminary objection filed by the learned Counsel Mr. Mlanzi has no 8 merits and it falls upon its nose in articulo m ortis thence I dismiss the preliminary objection in the event. n \ \ ) i I.S. Mipav Mipawa, Judge 26/8/2009 Ruling delivered today in the presence of both parties. W(u LS. Mipawa, Judge 26/8/2009 Order: Hearing of the appeal to be on 17/9/2009. wvL .S. Mipawa, Judge 26/8/2009 9