ally dadi himidi vs the municipal council of lindi the attorney general 2023 tzhc 19131 27 june 2023

IN THE HIGH COURT OF TANZANIA AT MTWARA LAND CASE NO. 8 OF 2022 ALLY DADI HIMIDI............. ........ ...........................APPELLANT VERSUS THE MUNICIPAL COUNCIL OF LINDI.................!57 DEFENDANT THE ATTORNEY GENERAL.................. .......... .....2nd DEFENDANT RULING Date of Last Order:13.10.2022 Date of Ruling: 27,6.2023 Ebrahim, J. It is true that on 27/04/2023 the court adjourned the hearing of preliminary objection in order to ascertain the presence of Bibie Selemani Mataka whom we were told that at times she is not of sound mind and also that the original powers of attorney be brought. Apparently the said Bibie Selemani Mataka has appeared today presenting an identify card and original Power of Attorney saying that apart from having high blood pressure of which at times she attends medical check up she is able to speak and she knows about the land in dispute and able to pursue her case. Counsel for the defendant has i raised an issue that the power of attorney is general and authorizes two people. Counsel for the plaintiff defends that fact and date that the power of attorney speak about the disputed land hence it should be allowed to stand. He said, considering that Bibie is now present before the court she should be added in the plaint and continue with the case. Firstly, I agree with the counsel for the defendant that much as the power of attorney mention about the disputed land, still it does not specifically state that who appears as plaintiff has the mandate to institute and prosecute Land Case No. 8 of 2022. What surprises this court more is that Ally Dadi Himidi filed the case in his name as if he is an administrator of the estate whilst he has simply been given mandate to stand in the matter on behalf of Bibie. The power of attorney also read Said Ally Dadi Himidi as the one who deponed and not Ally Dadi Himidi. For all purpose and intent since Bibie is alive, she should be the one to file the case and appear as plaintiff then authorizes another person to proceed with the case on her behalf and not otherwise. 2 I would not dwell with the issue of two people being granted the power of attorney but instead instituted by one of then now as it does not serve any useful purpose. Conversely, I do not agree with Advocate Manyanga that Bibie be added as a necessary party while it should be her name as the plaintiff who has filed the case at first place. That being said, much as counsel for the plaintiff has talked so much about interest if justice, the same would have started his observance of the legal procedures as the same would not allow a person who is not a party to a suit to institute a case on behalf of a person who is still alive. That being said, I find this suit to be incompetent before this court. I struck it out because incompetent matter cannot be amended. If Bibie still wishes to pursue her right, she should rightly institute the same of her name even if she would wish to have someone else to proceed with the case on her behalf as per the set legal procedures. I give no order as to costs. R.A. Ebrahim JUDGE 27/06/2023