20150521 TZHC Dar es Salaam

I/ IN THIE HIGH COURT OIF TANZANIA AT DAIR !ES SALAAM PC.CIVIL APPEAL NO ;J}43 OF 2014 (Originating from the District Court of Rufiji in Civil Appeal No. 3 of 2014) JUMA MOHAMED MKUBilI .................................•...•.. AIPPlICAINT VERSUS 7 _ JUMA MIKUlI M/ KITI CHAMA CHA\.................... RESPONDENT <- USHIRIKA KATA YA Cfrl!UMBI _J JUDGMENT IMKASIMONGWA,J. In the Primary Court of Rufiji at MUHORO, the Appellant, one JUMA MOHAMED MKUBILI, sued )UMA MIKULI (the Respondent) claiming for a .,-. sum of Tshs. 576,504/= being the unpaid balance from the cashewnuts sale proceeds. He lost the case. His appeal to the District of Rufiji was not successful. The first appellate Court found no merit in the appeal for it was satisfied from the evidence that the Respondent was a mere Chairman of the Umoja wa Vyama vya Ushirika Rufiji to which cooperative society the appellant sold the cashewnuts on credit. As such it was not proper to sue the Respondent. The court opined that the appellant ought to have sued the society. Alternatively the District Court· found that, the loss the appellant had experienced was caused by fluctuation of the Cashewnuts market price. As such there was no one to be blamed. 1 1 (: The appellant is dissatisfied by the decision. He has therefore appealed to this court. In his Memorandum of appeal, the Appellant raised two grounds which are as follows: 1. That the District Court erred in law and fact by holding that the Respondent was not a party to the agreement entered by the Appellant in respect of the Appellant's cashewnuts. 2. That the District Court erred in law and fact by holding that the Respondent was not responsible for the loss incurred by the Appellant. When the appeal came up for hearing the appellant argued it to the effect that; it was not just for the District Court to hold as it did. He therefore appealed to this court against the decision of the District Court. He has two grounds of appeal which he prays the court should consider in determining the appeal. On the other hand, the Respondent submitted that this appeal is devoid of merit. The appellant and other fellows had sold cashewnuts to their Cooperative Society. They were paid the price in the first phase. They were not paid for the second phase as agreed for the society had suffered loss. To comprehend the matter well let me reproduce some Parts of the record of the Primary Court. In the "Plaint" filed in the Primary Court it is shown as follows:- "Jina ~a Mdai:JINA MOHAMED MKUBILI Taifa: MTANZANIA 2 -·Mahala:· -- CHUMBI Mdaiwa: JUMA MIKULI (M/KITI) CHAMA CHA USHIRIKA Kabila: MNDENGEREKO Mahala: CHUMBI Andlika Madai na habari fupi ya ukweli wa madaina Unn yalitokea: NAKIDAI CHAMA CHA USHIRIKA KATA YA CHUMBI MADAI YA MALIPO YA MAUZO YA KOROSHO AWAMU YA PILI AMBAYO HAVVAJANITEKELEZEA MPAKA HIVI LEO NAFIKA HAPA MAHAKAMANI. Kiasi lkinachodaiwa: MADAI YA MALIPO YA PILI YA KOROSHO TSHS. 576,504/=." After the parties had given brief statements of their respective cases, the court framed the following issued:- "-Je Mwenyekiti wa Chama cha Ushirika ndiye mwenye wajibu wa kulipa deni hili? -Je malipo ya pili ya Korosho Chama hakilipi mpaka idhini itoke kwa Afisa Ushirika wa Wilaya. -Je kama Korosho zimeuzwa kwa hasara malipo ya pili yatapatikana". When the Appellant was invited to adduce evidence and after having been sworn he stated as follows:- "Mimi ninadai malipo ya pili ya msimu wa Korosho 20/10/2011. Nililipwa asilimia 70% kwa hiyo iliyobaki ni thelathini (30% )" The Appellant had and called three witnessed namely OMARI KISOMA (PW.2), SAID BAKARI MWELEKWA (PW.3) and JUMA HEMEDI 3 0 MPITA (PW.4). The witnesses testified to the effect that they had sold cashewnuts to Chumbi Co-operative Society sometime in 2011. They were paid the first phase and that were not paid in the payments in the second phase. That is all what is found material from the record. The first ground of appeal leads the court to the issue whether the Respondent was a party to the cashwenuts sale agreement entered by the Appellant. In his testimony the appellant did not tell the court if he agreed to sale the cashwenuts. One may, however, learn from the testimonies of PW.2, PW.3 and PW.4 that, the cashwenuts sale agreement was entered by the Cashwenuts farmers in one hand and the Chumbi Co-operative Society on the other hand. The Cashwenuts were not sold to JUMA MIKULI (Respondent). As such although JUMA MIKULI was the chairman of the Co- operative Society, it was not proper to sue him in his name or even tittle as the Appellant did. This is because he was not privy to the contract. The Appellant ought to have directed his claims to Chumbi Co-operative Society. Being of such a view I find it was proper when the courts below held that the Respondent was not a party to the contract entered between the Appellant and Chumbi Co-operative Society. The contract could not, therefore, be enforced against him. It is my finding that there is no merit in the first ground of this Appeal. It is therefore dismissed. As regards to the second ground of Appeal the issue to be determined is whether the Respondent was responsible for the loss incurred by the Appellant. It Is clear from above that the Respondent was not a party to the contract a subject matter of the suit before the Primary Court. Since the Respondent was not the party to the contract, he cannot 4 - (';. be held responsible for any loss claimed at the strength of such a contract. Again I find no merit in the second ground of Appeal; It is thus dismissed. From what is discussed, found and held above, I find the appeal devoid of any merit. It is therefore entirely dismissed with costs. Dated at Dar es Salaam this 21 st day of May, 2015, 5 Date: 21/5/2015 Coram: Mkasimongwa,J Appellant: Present Respondent: Present Court Clerk: Emma Court: Judgment pronounced in chambers this 21 st day of May, 2015 in the presence of both parties. Right of Appeal explained. c- c~~,LLP E.J.Mkasi;;;~ JUDGE 21/5/2015 6 I ,.