Chariman Mazao ya Kuku (Shafraeli S. N'gunda) vs Rogate Meena (Civil Appeal No. 25 of 1995) [2000] TZHC 629 (14 April 2000)

,, IN THE HIGH COURT OF TANZiNIA AT MOSHI CIVIL APPEAL NO. l5 OF 1995 CHl\illMAN MAZAO YA KUKU SHAFRAELI) APPELLANT s. NG 1 UNDA ) ROGATE MEENA I<ESPONT"lENT JUOOEMENT BEFORE:. HON. E. No MUNUO J .. _,__., ___ ,,... ____ • ___ ·--""-···· ••• ~ ... - ............ , ..... .-a:,. ln Hai District Cml,;lj; Ci:v:il ,Ga..ae.llo-, 5- ~ the plaintiff sued: the. defendant fc.r1- a) Vacant possession; b) R$po.s.sssdon ..Qf.J-.hs, Poultry and Bakery project; o) Costs of the suit; and . d) Any .other .relief de€med fit by the court. The dti'endant deni the 41,aim. Tb.e trial .oom:-t dismisse~ the sui?- with costa whereupon .the plaintiff l.adg,ed this.appeal to dislodge the decision of the court below. Somet::.me in 1980 thf:. plaintiff Shafl!ael Ngunda 1 the then Cba.irman of yirika wa Mazao ya Kuku na Duka la Mikate (Poultry and Hatchery Unit and Bakary Co-operativ~ Society) registered on the 22.9.1981 per the certifieate of Registration Exhibit D.8 differed ,with the other members of the Society, Some members withdrew -tha~ memb.e;N;hip and their .shares were accordingly refunded per the receipt €xhibit P•2• The problem culminated in the. defendant seizing the office of the plaintiff chairman, throwing the later out and g!ving ri~ to this wit• The :plaintiff is &9eking the repo.s.s.esaion of the project and the eviction of tha defendant who took over the chairmnship of the society plus costs. ln the amended Memorandum of Appeal and in his written -submission, Mr• A. Shayo learned advocate for the appellant stated that the appellant_ Shafrael Ngunda wag in Hai District Court Criminal Case No., 8 of 1994 jailed for stealing from the material co-operative Society but he was in Criminal Appeal No. 84 of 1997 acquitted and set free. With regards the merits of the appeal Mr. Shayo contended that the trial Resident Magistrate wrongly dopted the issues framed by Mr. Mwanga, the late '· District Magistrate The coUI't noteethat the coram was ·,,rongly recorded by inserting the name of the late Distric\ Magistrate tor the issues, trial, ; ' judgement and decree were dealt with by Mrs .• s. Mwandoloma, Resident Magistrate 1 I Mr 1 Mwanga., District Magistrate last handled the case on the 20/1/95 by way of I mention. :.J.i.e lea:;;''.:-A trial '!',s,.:i.s~~cEc '.s.- .:..;nc"'~~ .:.;.;.:-.:;r..:.;;. · .. ;.·:<:-;;the ,:·" - ,·· .. ''-.- ~~~/.' . • , •. 1: r.-? ... 3:..s+~r,... - ~ ::·--:} .. ~. :_ ~~ ... -· ~ _;,}. ~c.

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2/- The learned trial magistrate commenced the trial by framing the issues and recording evidence on the 3/2/95. She dismissed the action the 1/8/950 etween the 3/2/95 and the 1/8/95 no other magistrate handled the case. What is more the record shows that previously Mr. Lamtey and .Mr. Mwanga, District Magistrate, at Hai_District Court had disqualified themselves from hearing the case. The record also shows that the lower court allowed the defendant to file a Written Statement of Defence on the 23/12/94 thereby -waivitzlr the order for ex pa.rte hearing. Under those circumstances grounds 1 an_,2 of the Amended Memorandum of Appeal have no merit. They are accoi°d:i.ngly dismissed. ,:· Mr. Shayo further submitted that the learned trial magistrate erred in holding that there was.a co-operative society in existence which had no'members. As Mr. Urio learned advoate for the respondent rightly pointed out, the co-operative society was founded legally and registered as evidenced by the Certificate of Registration, Exhibit D.8. The co-operative Society has not been dissolved so it does exist under the co-operative Society Act 1991. Mr. Urio cited the case of Solomon versus Solomon & Co. Ltd.(189'(') A. c. 22 wherein it was held that once a company is fol'."'.rned? it becomes RN entirely a different legal person from the persons who composed and controlled ito This concept was approved in the case of Transport EquiPnment Ltd. and Another versus D.P. Valambia Civil Appeal No. 44 of 1994 1 Court of Appeal of Tanzania at Dar es Salaam which counsel for the respondent also cited. As it is a Co-operative Society which is duly registered as is the case with the Poultry, Hatchery and Bakery Co-operative Society in question, is a legal p0rson with powers of suing and being sued. The certificate of registration, Exhibit D.8 is conclusive evidence of the existence of the material Co-operative Society Ground three of the appeal therefore fails. G,ing to ground five (befot-e tackling ground 4) of the appeal under the Amended Memo, 1 already noted above that the late Mr. Mwanga, District Magistrate disqualified himself from hearing the case on the 11/11/94 while Mr. Lamtey, District Magistrate followed suit on the 23/12/94. ln that regard ground 5 of the Amended Memo of Appeal is totally lacking in merit and is accorcinly dismissed. On ground 4 of the appeal Mr. Shayo maintained that the defendant seized the plaintiff chairman's office plus shsG 585,000/= which was in the drawer. He prayed that the defendant be ordered to restore the money to the appellant because the said cash personally belonged to the appellant: the it did not belong to respondent. On this Mr. Urio submitted that the defendant is an employee of the Co,,.operative Society so the society and not ·' the defendant in person would be ltable to refund the claimed sum of shs. 585,000/=. .,. .--~~~·,,:-+:::--- -.=.. .• ::<, -.,,-;lfflll'I-----·· •-·-~,·· ,- • •••• /3

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3/- That is so. The respondent evicted the ex chairman, the plaintiff from the business premises of the Co-operative Society and took over the chair:mahahfp 0·1· the so-ciety--pitt~--the--o-:ffiee--and perty- tnerein for the society. Since the defendant did not deny that the take over of the premiaes of the society included the take over o.f shs• 585.-000/-... f:r>om t drawers, the appellant would be entitled to a refund of the said money upon proof t,hat the -Gaid money personally belonged to the appellant. But money recovered at the office of the society would irrebuttably be . presumed to belonz, to the socity rathe than to th~ ex-oha.irman., Tha.t being the pos.iti.~ and in the absence of evidence that the money did not belong to too socie~ this -et o.t allow ground four oft he appeal. In the light of the ab th.&- trial .court pr.o-psrl: <li.smisSitd th.sdt., Th appeb.l__ is .devoid cl merit, ( The. appeal i,s.. aa.cordingly It is 30 order--4 At Moshi this 1.4/4/2000 Appellant: Mr. Ao Shayo far Reupondent: Mrt Urio for /2~):, ,, ' ·'· /.- -''":- , / ' i Eo No MUNU01 JUDGE, tll-/4/2000 ~ , . ~~--:;. ··•:4t<'') Eo N. MUNUO, :, , / • JUDGE, 14/4/2000