PC

© THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OFTANZANIA AT KIGOMA JEREMIA CHARLES + PC CIVIL APPEAL NO. 11 OF 2023 YAGAMBE APPLICANT I PLAINTIFF COMPLAINANT/ APPELLANT/ VERSUS DWT SACCOS KASULU & 2 OTHERS RESPONDENT/ DEFENDANT JUDGMENT A. K. RWIZILE, J, This appeal emanates from the decision of the District Court of Kasulu in Civil appeal No.6 of 2023 dated 14th July 2023. It has been gathered fil°m the records that parties to this case were in a contractual relationship. The appellant, a member of the respondent, was advanced with a loan of TZS 6,000,000.00 on 17th January 2018 to repay in one year with interest an8 penalty. The appellant defaulted payment. Before execution, he successfully obtained an extension of time to ply. When time extended was about to lapse, the respondent hired a court broker and sold the appellant's two millin1 machines. The appellant was not happy with ie process. He filed a dispute before the District Court ofKasulu styled as Civil case No. 2 of 2021. On 13th October 2021, he obtained a decree for payment of damages for unlawful selling of his properties. The district court foun~ that the respondent did not follow the law in auctioning the same and was ordered to pay an amount of TZS 10,000,000.00 as general damages. The respondent did not appeal against that decision. The appellant was not haJly with ;t and applied for review of the same decision before the same court. Meanwhile, the respondent filed fivil Case No. 7 of 22 before Kasulu Primary Court against the appellant claiming for an amount of TZS I 0,977,200.00 being the unpaid loan, with interest and penalty. The appellant, before the Primary Court pleaded, his application for review was not determined yet and asked for the proceedings before it to halt. The prayer was dis nissed. Upon full hearing, the respondent successfully obtained the judgement as claimed. The appellant did not as well appeal against the decision despite having complained about it. He, however, did not pay. An application for execution was filed before the same court. His 20-acre farm was attached in execution of the decree. That done, the appella1t filed the impugned appeal before the district court complaining that it was unlawful for the court to attach hf 20-acre farmland valued at TZS 8,000,000.00, while the respondent had previously sold two milling machines worth TZS 14,000,000.00. to settle the same loan. Page. l F urth e r, it w a s a rgu e d th a t th e 9 v id e n ce o f th e a p p e t h is tw o m a c h in e s , wh ic h w er e no t a c o ll a te ra l to th e lo a n , w e re so ld b e lo w th e m a rk e t v a lu e b y th e r e sp on d e n t th ro u gh M b ez i a u c tion m art w ith o u t a c ou rt ord e r. It W ;lS further submitted, that it was wrong to do execution while the respondent had already sold the appellant's machines. Finally, he asked this court to allow this appeal. For the respondent, it was submired that the lower courts had jurisdiction to entertain the matter. It was added, the appellant appealed against execution order, therefore, the main case cannot be challenged as it is not subject of the appeal. It was further submitted that even if there is a point of law, it cannot be raised before the second appellate court due to the reason that! the appellant is barred from challenging the decision delivered on 25th March 2022. He argued, execution was done since 6th February 2023 and further that, there was no appeal since 25th March 2022. It was argued as well that, this court has no jurisdiction to entertain the matter which was not challenged by the appellant in the first appellate court. On the other ground, the learneb counsel submitted that, the first appellate court was correct to dismiss the appeal because the appellant didjnot challenge the decision of the trial court dated 25th March 2022. He argued, this appeal originates from execution proceedings, therefore the main suit cannot be dealt with at this stage. The learned counsel on the 3rd 4th and 5th grounds of appeal asked this court to accord less weight because, the point was not raised before the ~rst appellate court as held in the cases of Samwel Namani Ami vs Paulo Baha Qamara, Land appeal No. 48 of 2020, (HC), Galus Kitaya vs Republic, (CAT), Criminal Appeal No.196 of 2015, Rafael Enea Mngazija (,j\dministration of estate of the Late Enea Mngazija) vs Abdallah Kalonjo Juma, (CAT), Civil Appeal No.1240 of 2018 and Bank of Africa Tanzania Limited vs Naif Salum Balhabou and 2 others, Commercial case ~o. 140 of 2017. It was added, the appellant's contention is time barred as it is overtaken by events because he never appealed against the decision dated 25th March 2022. This court was therefore asked to dismiss this appeal. Having heard the submissions of[the parties, I have to deal with the first ground of appeal, which disposes of the entire appeal. It is my opinion that it is not true a submitted by the respondent that jurisdictional issues cannot be raised at any time, since this was the position in the case of R.S.A Limited v. Hanspaul Automechs Limited and another, (CAT), Civil Appeal Nol 119 of 2016, on page 12, where it was held; " ... an objection on a point of taf challenging the jurisdiction of the court can be raised at any stage, it cannot be gainsaid that it has to be determinedfirst before proceeding to determine the substantive matter ... " ft is clear that, the appellant as a f the respondent borrowed the money from the respondent which he did not pay. rt has been submitted and rightly so, that the mechanism of dispute settlement between the society and its ~ember is governed by Regulatioi 83(2) and (3) of the cooperative Societies Regulations of2015 which state that: (I) Any dispute concerning the business of a cooperative society between members of the society or persons claiming through them or between a member or persons so claiming and the Board or any officer, or between one cooperative society and another s~all be settled amicably through negotiation or reconciliation. Page. 3