marchades renatus vs pius sylvester 2020 tzhc 4712 7 december 2020

e THE HIGH COURT OF TANZANIA (IN THE DISTRICT REGISTRY) AT MWANZA PC CIVIL APPEAL NO. 70 OF 2020 (Arising from Chato District Court in Civil Appeal No.5 of 2018 Originating from Chato Primary Court, Civil Case No. 22 of 2019) MARCHADES RENATUS APPELLANT VERSUS PIUS SYLIVESTER RESPONDENT JUDGMENT Date of last Order: 30.11.2020 .Date of Judgment: 07.12.2019 A.Z.MGEYEKWA, ] The appellant filed an appeal to this court following his dissatisfaction with the decision of the District Court of Chato in Civil Appeal No.OS of 2018, which decided in favour of the respondent. The appeal before this court had the following grounds:- 1 e 1. That the District Magistrate erred in law and fact to ignore the submission by the appellants Advocate that there was an appeal to the High Court filed in the District Court Registry on the parties of the same matter. 2. That the District Magistrate erred in law and in fact to set aside the award by the Primary Court and reach the decision by awarding the respondent Tshs. 2,520, 680.5 without any supporting evidence to the same. At the hearing of this appeal, Mr. Elias Hezron, learned counsel advocate represented the appellant while the respondent appeared in person unrepresented. Submitting on the first ground, the learned counsel for the appellant stated the trial Magistrate decided in favour of the respondent contrary to the decision of the High Court in Civil Appeal No. 65 of 2018. He argued that this court ruled out that SACOSS owes the respondent while the District Court decided the respondent is the one who owes SACOSS. He stated that this court takes precedence therefore he urged this court to quash the decision of the District Court. 2 0 He added that in case the respondent is dissatisfied he can file an appeal to the Court of Appeal of Tanzania. As to the second ground of appeal, Mr. Hezron argued that the respondent sued the appellant on his own name instead of suing Mato Mato SACCOS. Mr. Hezron went on to state that no one can be charged or punished for another person fault. The learned counsel for the appellant further argued that the District Court was supposed to nullify the proceedings and order the respondent to sue a proper party. It was Mr. Hezron further submission that the respondent was a member of Mota Mato SACCOS. He added that when a member resigns he is entitled to be paid his contribution and servings. He added that Mato Mato SACCOS had its own procedure whereas, a member who resigns is paid his contributions after deduction of all debts. He went on to state that the respondent serving were Tshs. 4,838.750/=. He added that after the deduction of Tshs. 2,899,765/= the respondent was required to be paid a balance of Tshs. 1,938,985/=. He argued that in case the District Court could have perused the records it could found that the respondent was indebted. 3 O Mr. Hezron continued to submit that in Civil Case No.44 of 2017 before the Primary Court the High Court confirmed that the trial court decision and the respondent was ordered to pay Tshs. 4,300,770/=. On the strength of the above submission, Mr. Hezron urged this court to quash the decision of the first appellate court upheld the trial court decision and allow the appeal with costs. In riposte, on the first ground, the respondent submitted that he is not indebted. He claimed that his wife took a loan since both of them were members of SACCOS. He admitted that in 2015 he applied for a loan in a tune of Tshs. 25,000,000/=, however, his application for the said loan was not granted instead his wife took the said loan. The respondent went on to submit that the District Court decided in his favour of him. He contended that the matter before the District Court was based on documents that revealed that the respondent did not obtain any loan. It was his further submission that the appellant filed an appeal before this court whereas, Hon. Rumanyika, J ordered the respondent to pay the loan. 4 e As to the second ground, the respondent argued that he owes SACCOS Tshs. 1,938,985/=. He claimed that he instituted a Civil Case No.22 of 2018 at the Primary Court and the trial court decided in his favour and ordered the appellant to pay the respondent a total amount of Tshs. 3,000,000/= but the appellant did not pay him todate. On the strength of the above submission, the respondent urged this court to uphold the Primary Court in Civil Case No. 22 of 2018 decision. In his rejoinder, the learned counsel for the appellant stated that the respondent admitted that the court issued an order to compel him to pay the debt. Insisting, he argued that all claims were fatal since this court decided on the same matter and found that the respondent is the one who ordered his wife to collect the money on his behalf. He lamented that the lower courts were supposed to obey the High Court order. Mr. Hezron insisted that the appellant in Civil Case No. 22 of 2018was required to sue SACCOS whom he had a contract with instead of suing the respondent in his own capacity. 5 In conclusion, he urged this court to allow the appeal and quash both lower court's decisions. Having summarized the facts of the case and submissions of the appellant, I now turn to confront the grounds of appeal in determination of the appeal before me. I have opted to start with the second ground of appeal; in my view, this ground may dispose of the whole appeal. In determining whether the District Magistrate erred in law and fact to ignore the submission by the appellant's Advocate that there was an appeal to the High Court filed in the District Court Registry on the parties of the same matter. I have gone through the PC. Civil Appeal No.65 of 2018 dated 22° May, 2019 which was before my brother Rumanyika, J to find out what transpired. I have found that this court determined the appeal whereas the appellant's wife collected the money of the appellant on his behalf. Thus, this court quashed and set aside the decision of the District Court in Civil Revision No. 03 of 2017 and uphold the decision of the trial court in Civil Case No.44 of 2017. Thereafter, the respondent lodged a suit against the appellant claiming for the outstanding balance of Tshs. 1,938.985/=, the Primary Court decided in favour of the respondent. 6 Then the appellant filed an appeal before the District Court in Civil Appeal No. 05 of 2018 and the District Court decided in favour of the respondent. The learned counsel for the appellant complained that the District Court in Civil Appeal No. 05 of 2018 proceeded with hearing while there was a pending appeal before this Court. I have gone through the court proceedings and found that on page 6 the appellant's Advocate raised a concern that the appellant has filed an appeal against the Revision Case No. 03 of 2017 before this court. However, the appellant did not tender any proof that the appeal was pending before the High Court. It is my findings that this court, I have noted that the matter in dispute was related to the matter which was before the District Court in Civil Appeal No. 5 of 2018 whereas this court uphold the decision of Chato Primary Court in Civil Case No. 44 of 2017, it was found that the respondent's wife on behalf of his husband collected the money. While in Civil Case No. 22 of 2018 the respondent filed a claim against the appellant claiming for Tshs. 1,938,985/= that being a member of Mato Mato SACCOS he deposited the said money to 7 L SACCOS. On their side, the appellant (defendant) claimed that they owe the respondent (plaintiff) Tshs. 4,838,750/= including interest. In the Civil Appeal No.5 of 2109, SUI testified to the effect that the matter was before the Urban Primary Court of Chato in Civil Case 44 of 2017 and the court ordered the respondent to pay and this court upheld the decision of the Urban Primary Court. On the second ground, the appellant's Advocate complained that the appellant was wrongly sued. Readings the court records I have noted that the appellant's Advocate has raised this issue as a new issue \ which was not raised at the trial court in Civil Case No. 22 of 2018 and at the District Court in Civil Appeal No. 05 of 2018. Therefore, the same was not determined. However, reading the court records it seems the respondent's raised the same concern at the District Court in Revision No.03 of 2017 whereas the District Court upheld the revision and nullified the trial court decision in Civil Case No.44 of 2017. However, this court quashed the decision District Court in Revision No.03 of 2017 and uphold the trial court decision. For these reasons, this court cannot determine this ground. 8 .. In the upshot, I have found that the first ground has merit. Therefore I proceed to quash the decision of the District Court in Civil Appeal No.5 of 2018 dated 29° August, 2018, and I allow the appeal without costs. Order accordingly. DATED at .wauza this 07 December, 2020. a ..-4132.3' ¢ } /. .,-.r__ A.Z MG, l KWA JUDGE 07.12.2020 Judgment delivered in 07 December, 2020 in Court Chambers in the presence of both parties. A.Z MGlKWA JUDGE 07.12.2020 9