DAR ES SALAAM: ABOUT 267 residents of Kigamboni in Dar es Salaam have lost their 3.9bn/-, which they deposited with Mr Kuku Farmers Limited as initial capital for running poultry farm scheme to obtain lucrative profit.
This followed a decision of the High Court to dismiss the suit the residents, the plaintiffs, lodged against the company and its Managing Director, Tariq Machibya, the defendants.
Judge Edwin Kakolaki ruled that the plaintiffs failed to prove their claims to the required standard warranting grant of the prayed reliefs.
“Consequently, the only available remedy to them is dismissal of the suit, which order I hereby enter,” he declared.
The judge noted from evidence produced by the plaintiffs that they deposited some money with Mr Kuku Farmers Limited through Mr Machibya in CRDB bank account, where the company accepted 2,098,450,000/= as initial capital for running poultry farm scheme.
It was said the amount collected from the public (plaintiffs) without licence was the base of criminal proceedings instituted at the Kisutu Resident Magistrate’s Court in Dar es Salaam under which Machibya was convicted and sentenced accordingly.
During hearing of the matter, both counsel, Mr Haji Mlosi for the plaintiffs and Norbert Mlwale for the defendants filed their final submission to assist the Court arrive at the just decision.
Advocate Mlosi had argued that, there is no evidence indicating that, the defendants at the time of execution of the agreement with the plaintiffs had no valid licence to collect or accept deposit from the public (plaintiffs).
However, in his judgment delivered recently, the judge had this to say, “With due respect I am not prepared to accept Mr Mlosi’s submission…
“…as the onus of proving the defendants possessed licences for accepting deposits from the public at the time of execution of agreements with the plaintiffs, lies on them who sought to prove to the Court’s satisfaction that the said contracts or agreements were valid,” he said.
Further to that, the judge pointed out that there was evidence, which is an order to the effect that the deposited money by the plaintiffs in the Machibya’s bank account had a total amount of 4,889,445,534/54 that formed part of the money forfeited to the government.
Such amount as proceed of crime was transferred to bank account maintained at the Bank of Tanzania in the name of the Director of Public prosecution.
“Admittedly this piece of evidence stems this court’s finding that, the agreements between the plaintiffs and defendants were illegal and unenforceable in the eyes of the law for contravening the laws,” the judge said.
Thus, he was satisfied and it was the findings of the Court that, as consideration to the said agreements between the plaintiffs and defendants was rendered illegal by operation of law, all agreements were illegal and unenforceable in law.
It was contended by the plaintiff that, Machibya, acting through Mr Kuku Company set up a business initiative for collection of funds from the public to run under profit the poultry farming project (farms) located at Kigamboni area and District within Dar es Salaam.
In so doing various agreements were executed between Machibya through Mr Kuku Company as the beneficiary and the plaintiffs as financiers, under different contractual terms on the period involved, amount deposited with each defendant and number of chickens covered.
The said agreements were executed between January, 2020 to June, 2020, in which it was expected profits for the invested fund or initial capital would be reaped plus capital in between June, 2020 to December, 2020.
However, it turned out that the same were not paid to the plaintiffs as expected or agreed. It was at that point in time when the former decided to file the suit, seeking for various reliefs.
Upon being served with the plaint, the defendants denied the claims on the ground that, the plaintiffs have no cause of action against them as all the averments on whether jointly, severally or otherwise are frivolous, vexatious and baseless.
They stated that Machibya is a separate entity operating and carrying out her business independent of Mr Kuku Company.
It was their defence that, the alleged agreements, if any were frustrated by the Court of law when ruled out to be illegal when Machibya was arraigned before the Resident Magistrate Court of Dar es salaam at Kisutu, convicted and sentenced for offences of conducting and managing pyramid scheme and accepting deposits from general public without licence.
They stated that following such conviction and confiscation of money deposited as proceeds of crime, plaintiffs had no any valid claim of right against them for being engaged in the pyramid scheme and for that matter there was no agreements capable of being discharged.
