veronica wambura vs seni manumbu 2008 tzhc 71 29 may 2008

IN THE HIGH COURT OF TANZANIA

AT MWANZA PC CIVIL APPEAL NO 37 OF 2006 (Arising Nyamagana District Court Civil Appeal No. 1/2006 (Original Mwanza Urban Primary Court Civ.Case No. 35/2005) V E R O N IC A W A M B U R A ..................................... A P P E L L A N T Versus SENI M A N U M B U ............................................. R ES PO ND E NT

JUDGMENT RW EYEM A1N11J, J . I found the facts o f the case giving rise to this appeal interesting. The evidence adduced in the Primary Court (PC) was that; the respondent Scni Manumhu gave a loan o f shs 250.000/= to the husband o f the appellant Veronica Wamhura. The latter was not part o f the loan agreement between them but was sued under the following circumstances: There w;as an attempt to settle the matter out o f court before the village leadership. The parties meaning the respondent, the appellant and the latter’s husband attended an amicable settlement meeting before the village leader on 28/2/2005. At the meeting it was agreed that the husband would pay the debt by 2/3/2005 and if he failed, his wife the appellant would pay the same. The promise was not met so the respondent reported again to the village leader who called another meeting on 10/3/2005. The husband/ debtor did not attend but the appellant did and prayed for one more week to get the debt settled, which was granted. That time expired and the husband had not settled the debt so the respondent decided to sue the appellant in the PC claiming the loan amount o f shs. 250.000/= plus Shs. 360.000/= as interest accrued thereon. I hasten to point out now that it curious, that the respondent chose not to sue the husband/debtor or even sue him jointly with the appellant/wife. The PC found the case against the

appellant proved based on the agreement made before the village leadership, despite the appellant’s protestation that she never borrowed money from the respondent; that it was the husband who did. The PC granted the whole amount claimed o f shs. 610.000/=. Dissatisfied, she appealed that decision to the District Court (DC). The DC concurred with the PC decision finding that the agreement made by the parties before the village leadership amounted to a contract o f guarantee o f the husband’s loan by the appellant. Dissatisfied, the appellant made a second appeal to this court. She filed a Memorandum o f Appeal on four grounds. Under the 1st rid and 2 grounds she faulted the lower courts decision for finding that she was liable under a contract o f guarantee when she “the appellant had not been involved by any means to enable her husband secure the loan from the respondent” . In ground three, (included on a without prejudice basis) she faulted the two courts conclusion on the aspect o f interest accrued on the loan. Under the last ground, she submitted that the PC trial was a nullity for failure to comply with mandatory procedural requirements o f the law. I shall begin with ground 1 and 2 o f the MA. I state without hesitation that I do not agree with the conclusion reached by the two courts below. Why? A contract o f guarantee which the DC properly described as 44an agreement

in which the guarantor agrees to satisfy the debt o f another ...o r ly i f an d when the debtor fa ils to r e p a y ” WOllld have been properly found to exist if the appellant had made it before the respondent entered into the loan agreement with the appellant’s husband. On the facts agreed, the appellant was not part o f the loan agreement. It is for that reason I differ with the concurrent findings o f the two courts below and find the appellant not liable lor the loan advanced by the respondent to her husband without her consent. In view o f my conclusion, I will not deal with the appellant’s complaint regarding the award o f interest. If these were the only grounds, I would have found the appeal successful and ended there, but there is the 4th ground. The appellant stated therein that the PC judgment was a nullity for reason o f departure from the compulsory requirement of Rule 3 o f the Magistrates courts (Primary Courts) (Judgment o f Court) Rules, GN 2/1988. In support of her interpretation of the law, she referred to and attached this court’s decision in Phares Mayunga v. Christina Mayunga, (PC) Civil appeal 91/2000 (MZA registry -unreported). I have checked the PC proceedings and found out that after recording the assessors opinion, the PC magistrate “wrote a decision to confirm those opinions ” . That was ua clear departure’ from the mandatory provisions of the law

as concluded by Mackanja J. with whom I concur, in the cited case o f Phares Mayunga where the Hon. Judge cited with approval the decision by the late Mkude J. in Mohamed s amiri v Ngapwela (1992) I LR 342 and the late Lugakingira J. as he then was in Susana Joseph v. W. ihembc 1992 (TLR) 375. Me concluded as I also do that failure to comply with that provision made the PC trial and subsequent appeal to the DC a nullity. For that reason , I quash both subordinate courts 'proceedings and judgment and make no orders as to costs. 1 should point out that the appellant’s attempt to have the subordinate court’s decree stayed pending this appeal was dismissed by this court on 2/5/2007. The consequence of the decision in this appeal is to invalidate the execution o f decree that might have already been made. It is so ordered. Order: Case file and judgment forwarded to the District Registrar HC Mwanza, for delivery o f the judgment to the parties and subsequent necessary action. R M Rwc Jud 29/5/; AT Mt w__