20180828 TZHC Mwanza 1

IN THE HIGH COURT OF TANZANIA ATMWANZA PC. CIVIL APPEAL NO. 24 Of 2018 . {Aris{ng from Civil Appeal case No. 7 of 2017 of Bunda District Court and Civil case No.283/2016 of Bunda Urban Court} SAMWEL NYAMAZEGE ......................................... APPELLANT VERSUS JUMA KYANZI ...... ...... ■ II ■■ II ■ ••• ~ •••••••••••••••••••••.•••• • RESPONDENT JUDGMENT 10/07/2018 &·28/08/2018 Gwae, J The respondent, Juma Kyonzi filed a suit in the Bunda Urban Primary -Court at Bunda ('court of first instance') ·against the appellant, Samwel ~yamazege claiming to have given the. family of the appellant's late father (Nyamazege . Warioba who . died On 15/03/ 2013) the following; . cash money Tshs. 8, 009, 000/ =which he (respondent) borrowed from different business persons plus interest and his various shop goods worth · Tshs. 17, 440,000/= The respondent alleged to have entered into an ~ agreement (PEl) with the appellant's siblings. 1 2. That, the courts below entered in law and fact to recognize three unknown persons to the family who are alleged to have entered into the contract with the respondent ., 3. That, the courts below erred in law for failure to order the ones · who entered and breached if the written agreement When this appeal was called on for hearing the appellant and respondent appeared in person, therefore they were unrepresented. Starting with 1st ground of appeal on the respondent's justification of suing the appellant in his personal capacity, It is clear from the record that greatly the respondent if so lent money which he borrowed from other persons, (Lazaro William-PW2-Tshs. 4, 000, 000/= and Dismas William PW3-Tshs 2,000, 000/=) and that from the PEl which is plainly establishing that there were persons indebted to the appellant, these were; Adam William Nyamazege, Chaga. William Nyamazege, Mgamba W. Nyamazege and Maka_nyaga William Nyamazege. I have assessed the PEl but I have observed that there no mentioning of the family or . administrator of the deceased, Nyam;izege Warioba, the / ~ appellant's late father. . · 3 Since the respondent is found to have greatly relied on the agreement of sale of the Motor vehicle make canter with Registration No. T. 477 AYP th (PEl) dated 24 November 2014. It is therefore apposite to have part of the PEl reproduced herein below: "Mkataba huu ni makubaliano kati ya ADAM WILLIAM NYAMAZEGE akiwakilisha wenzake CHAGA WILLIAM · NYAMAZEGE, MAGAMB W. NYANMAZEGE na MAKANYANGA WILLIAM NYAMAZEGE ambaye katika mkataba huu atajulikana kama Muuzaji NA JUMA MASUSA KYANZI ambaye katika mkataba huu atajulikana kama Mnunuzi KWAMBA baada ya kupunguza deni hili kwa shiling 6, 0000,000/= Mnunuzi atabaki anamdai MUUZAJI kiasi cha shilingi 18, 600, 000/=ambazo watakubaliana kulipa hapa mahakamani. MBELE YA JINA VITUS H. MFUMYA CHEQ:. HAKIMU SAHIHI NA MUHURI ......... .. According to the evidence on record and the quoted agreement allegedly entered by the appellant's siblings, I don't see how the appellant would be / ) ~ . . . . 4 held liable in his personal capacity or in the capacity of being administrator of the late Nyamazege Warioba. "'\ . ..JJ It is in light of the PEl. and evidence of the PW1 and his witnesses (PW2 and PW3), this court is constrained to hold that the appellant is not liable in his personal capacity or in the capacity as administrator of the late Nyamazege Warioba. Thus this holding also ans~ers the 2nd and 3rd · grounds; I am therefore going. to be curtailed by them. Worse still I have traversed the trial court proceedings and found none suggest that the appellant was sued in the capacity of an administrator of estate of his late father. The respondent, to my considered view, was not supposed to sue the appellant in his individual capacity. If the respondent was after suing the appellant as an administrator that ought to be depicted in parties' names space or by the order of the trial court. The respondent did not therefore establish that the appellant had loc:us standi in connection with his claims as he sued him in his personal capacity. The term "Locus standi" being a common law term denotes capacity of a person be it natural or- legal entity to sue to be sued and in order to have such capacity that person must be able to show that his interests or rights~~ 5 has been breached or interfered or likely to be breached or interfered or obligation over a certain rights or interests. The appellant was therefore wrongly sued in his personal capacity. Nevertheless even if he was properly sued yet he could not be held liable as the matter was not proved to the required standard that his late father borrowed either cash or shop goods from the respondent. . In the ultimate event, the appellant's appeal is allowed. The respondent is hereby advised to sue a rightful person (s). The decisions and orders of the courts below are hereby quashed and set aside. In the circumstances of this case, I shall make no order as to costs. Ordered accordingly . •J[:h M.R. ~ Judge· 28/08/2018 Jl,,fi- ~ ·-~ Right'O(c:ippea.l explained ~ ( . ·.,· ·.. '· M. R. . Judge 28/08/2018 6