Moshi Lubibi

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA DC CIVIL APPEAL NQ. 14 OF 2023 (Originating from Urambo District Court in Civil Case no. 4 of202G) MOSHI RASHIDI LUBIBI....... .............. ....APPELLANT VERSUS REGISTERED TRUSTEES OF TUMAINI ITAWE USSOKE FARMERS ASSOCIATION AND 49 OTHERS................ .RESPONDENT JUDGMENT Date of Last Order: 12/02/2024 Date of Delivery: 28/ 03/2024 MANGO, J. On 29'-h April 2020, Moshi Rashid Lubibi, the Appellant in this matter instituted Civil Case No. 04 of 2020 before the District Court of Urambo against 67 Respondents including the Respondents in this appeal claiming for the following orders: - Payments of USD 35,569.5756 which by then was equivalent to Tshs. 80,094,249.6/- being costs for making follow ups of the Respondents’ debt arising from selling tobacco for the year 2014/2015. Payment of Tshs. 30,000,000/ = being general damages, i Interest on specific damages at 25% from the date of filing suit to the date of judgment, Interest of general damage at 12% from the date of judgment to the date of final payment and, Costs of the suit. In their written statement of defence, the 11th, 12th, 15th, 17th, 2.5th, 26th, 36th, and 50th Defendants admitted the claim and the court entered judgment on admission in terms of Order XXI Rule 4 of Civil Procedure Code. Since their admission did not affect the rights of the remaining Respondents to challenge the claims raised by the Applicant, nor did it exonerate the Appellant from the duty of proving his claims, hearing of the suit proceeded in respect of the remaining defendants. On 24/05/2021, the case was dismissed for non- appearance of the Plaintiff herein the Appellant. The dismissal order was nullified by this Court via Civil Appeal No. 10 of 2021 in which the Court ordered trial denovo of the matter before a different Magistrate. I have noted that the proper remedy for suit dismissed for non-appearance of the Plaintiff was to set aside the dismissal order which ought to have been done by the trial Court. Despite such observation but this Court is functus officio to re-open and determine the issue again. Moreover, at the time the matter was dismissed it was not yet heard, thus the effects of having the matter tried afresh and setting aside of the dismissal order are similar. In other words, the order to have the matter tried afresh did not occasion justice to either party. 2 Tn execution of tlie ruling of this Court, the matter was remitted back to Urambo District Court and proceedings started afresh before Hon. Mvula, SRM. The Court raised suo motto the issue of competence of the suit. The issue was centered on the provision of Regulation 83(1) of the Cooperative Society Regulations, GN No. 272 of 2013, which require disputes of this nature to be referred to the Registrar for mediation before approaching the Court for adjudication. Parties were invited to address the Court on that issue. After parties were heard, the Court found the suit to be incompetent for being preferred prematurely and proceeded to struck out the case with leave to refile after compliance with the law. The Appellant being aggrieved by the decision of Urambo District Court in Civil Case No, 4 of 2020, lodged this appeal on two grounds that read; 1, The decision of the trial court is bad in law and amounts to double standards and mi suse: of judicial powers . 2. The trial court erred in law to struck out the suit basing on an irrelevant consideration. When the matter was scheduled for hearing, the applicant was represented by Mr. Kelvin Kayaga, while the respondents were unrepresented. By parties ’ consent the appeal was disposed of by way of written submissions. In support of this appeal Mr. Kayaga opted to start with the Second ground of appeal. He asserted that, the trial magistrate relied upon the provisions of the Cooperative Societies Act of 2013 together with 3 its rules which do not apply in societies like in the instance case. He argued further that, the decision of the trial court was not backed up by any records from the parties, it was his contention that the case of Dau di Gerald Kilin da vs Chama cha Msingi Kalemela, Civil Appeal No. 5/2019 which the trial Court relied in its decision, is inapplicable to the case at hand. He also alleged that, the trial Court considered information which were not pleaded by the parties. He argued that, it was improper for the court to rely on unpleaded information. He referred to the case of Attorney General vs Amos Shavu [2001] TLR 134 to the effect that the decision of the court can be founded only upon evidence adduced in court but not on information privately obtained in the absence of parties. On the first ground of appeal Mr. Kayaga submitted that Hon. trial Magistrate failed to consider Plaintiff’s argument that, the case was competent because none of the parties were cooperative societies. He referred the: Court to the case of Tanzania Breweries Limited vs Anthony Nyingi [2016]. He then prayed the appeal to be allowed with costs. In opposing the appeal, the 1st respondent stated that the trial court was right to struck out the suit because the 1st respondent is a farmers’ association registered under Societies Act [Cap 337 R.E 2002] and has been operating its business under Cooperative Societies Act, Act No. 6 of 2013 and its regulations. He is of the view that the dispute ought to have been referred for mediation before approaching the court. Since the matter was not referred for 4 mediation to the Registrar by either party, the court lacks jurisdiction as correctly ruled by the trial Court. The 2nd Respondent challenged the Appellant’s counsel arguments that, the trial court decided the matter based on information obtained privately. He submitted that, the Court did not act on such information. He registered his concern that, the statement wrote by the Applicant’s counsel degrades the reputation of the Court and particularly the magistrate who determined the matter. He proceeded to support the decision of the trial Court on the reason that, the Appellant ought to have followed the laid down procedure. According to him, Tumaini Itawe Ussoke Farmers Association is an AMCOS which has been registered under Cooperative Societies Act. Thus, the procedure as provided under regulation 83 need to be followed. He insisted that, dispute between members of the association should be referred to the Registrar for mediation then to the minister before instituting a suit. The remaining Respondents did not file any submissions. Since they are members of the second Respondent Association and the appeal does not touch individual rights of the Respondents, I am of considered view that, the submission by the 2nd Respondent covers interests of its members. I will start with the allegations that the Trial Court acted on information obtained privately, which forms the basis of first ground of appeal. With due respect to the learned counsel, the Court did not act on anything else except pleadings filed before it. The court has s discretion, where the interest of justice so requires, to raise legal issues and let the parties address the Court on the raised issue before determining the same. The case of Amos Shavu supra cited by Mr. Kayaga is irrelevant to the case at hand because in the cited case the Court acted on private information unknown to the parties but in the current case the issue raised is on appoint of law regarding jurisdiction of the: trial court. It should be noted that, the Court invited parties to address it on the raised issue prior to its determination. The issue raised by the trial Court is evident even from the submissions made by the parties in this appeal. While the first Respondent allege to be registered under the Societies act, it claim to conduct its activities under the Cooperative Societies. The second Respondent allege to be registered under the Cooperative societies Act. In such circumstances arguments that, the Hon. Trial Magistrate acted on private information are unfound. As correctly put by the Second Respondent, such arguments amounts to disrespect of the Court and a particular Magistrate. The second ground of appeal requires the Court to assess whether the trial court correctly struck out the suit for being prematurely preferred. The main reason of the trial Court decision is failure of the parties to refer their dispute for mediation before the Registrar under the Cooperative Societies Act prior to filing a suit. In order to determine this issue properly, registration of the two associations need to be determined. 6 According to pleadings filed before the Court, the first Respondent is registered under the Trustees’ Incorporation Act, [Cap 318 R.E 2002], while the second Respondent has been registered under Societies Act, [Cap 337 R.E 2002]. Registration of the second Respondent is evident from its certificate of registration, with numbers S.A 19769 annexed to the pleadings in this matter. The registration certificate indicates that, Tumaini Itawe Ussoke Farmers Association was registered on 20th October 2014 under the Societies Act [Cap. 337 R.E 2002] and not under Cooperative Societies Act. Registration of the 1st Respondent is solely established by pleadings as no certificate of its incorporation has been attached to any of the pleadings in this case. In its interpretation section, Cooperative Societies Act, defines a cooperative society in the manner that, excludes a trust registered under the Trustees’ Incorporation Act and an association that have been registered under the registered societies Act. Even the Societies Act excludes in its interpretation, associations registered under the Cooperative Societies Act and trusts incorporated under the Trustees’ Incorporation Act, Section 2 of the Societies: Act as amended by The Written Laws (Miscellaneous Amendments) (No.3) of 2019 defines a society to mean; a non-partisan and non-political association of ten or more persons established for professional, social:, cultural, religion or economic benefits or welfare of its members, formed, and registered as such under this Act, but does not include- 7 (a) a company formed and registered under the Companies Act; (b) a trust formed and registered under the Trustees’ Incorporation Act; (c) a trade union formed and registered under the Employment and Labour Relations Act; (d) a cooperative society formed and registered under the Cooperative Societies Act; (e) an agricultural association formed and registered under any written law other than this Act; (f) a political party formed and registered under the Political Parties Act; (g) a. non-govern mental organisation formed and registered under the Non-Governmental Organisations Act; (h) a community microfinance group (VICO BA) registered under the Microfinance Act; (i) a sports association formed and registered under the National Sports Council of Tanzania Act; and (j) any society which the Minister may, by order published in the Gazette, declare not to be a society for the purpose of this Act; (emphasis added) In the case at hand, there is no doubt that the 2nd respondent is registered under Societies Act therefore, it should operate its activities in accordance with the Act and the regulation thereto. I hold so while aware that the 2nd respondent alleged to conduct its activities under Cooperative Societies Act because, as expressed in this judgement the two laws are distinct and according to 8 interpretation section nor association can be registered under all the two laws. The Societies Act together with its regulations do not expressly provide for the requirement of referring the dispute for mediation before approaching courts of law unless the particular society on its constitution provides the same. The Cooperative Societies Act provides for a very clear procedure in resolving disputes between members themselves or between the cooperative society and its members. As correctly submitted by advocate Kayaga, such procedure cannot be employed by associations registered under the Societies Act. I understand, the importance of dispute between members of associations registered under the Trustees’ Incorporations Act and the Societies Act to undergo mediation process before their registration authorities prior to adjudication process by the Courts of law. However, such importance cannot be employed to ouster jurisdiction of the court' unless there is a specific law to that effect. Moreover,: all civil cases do undergo compulsory but voluntary court annexed mediation process, thus parties may benefit with the process if they so wish. In this regard, I am of a considered view that, the requirement to refer disputes between members of the association for mediation before the registrar of cooperative societies, is. limited to the societies registered under the Cooperative Societies Act, Act No. 6 of 2013. Disputes between members of the associations registered under 9 Societies Act and those incorporated under the Trustees’ Incorporation Act may be instituted in ordinary manner of filing suits before courts of law. Hence, the trial Court has jurisdiction to hear and determine the dispute between parties in this appeal. For those reasons, appeal is hereby allowed to the extent demonstrated above. The order of the trial court dated 15/5/2023 is hereby set aside, and hearing of the case should proceed from where it stopped. For interest of justice, the matter should be handled by a different magistrate. Given the fact that, the legal issue from which this appeal originates was raised by the Court suo motto, I do not award costs. Dated at Tabora this 28th day of March 2024 Z. D. MANGO JUDGE 28/03/2024 io