charles bocco as power of attorney for david bocco vs steven marcea as administrator of the estaste of the late perpetua boco deceased 2006 tzhc 287 18 april 2006

IN THE HIGH COURT OF TANZANIA : AT TANGA ' PC MISCELLANEOUS CIVIL/APPEAL NO. 1/2005 . (ORIGINAL CIVIL APPL NO. 1/2004 TANGA DISTRICT COURT ORIGINAL CIVIL APP NO. 30/2003 OF TANGA D/C AND ORIGINAL ADMINISTRATION CAUSE NO. 9/2002 TANGA URBAN PRIMARY COURT ' . i CHARLES BOCCO (as Power of Attorney for David Bocco) — APPELLANT VERSUS STEVEN MACREA (as Administrator of the Estate o f-............... RESPONDENT the late Perpetua Boco Deceased) JUDGEMENT SHANGALI, J. This appeal originates from the Adminisration cause No. 9 of 2002 of Tanga Urban Primary Court, where the appellant CHARLES BOCCO was acting under powers of Attorney for DAVID BOCCO who was the objector thereto for the appointment of the respondent STEVEN MACREA as Administrator of the Estate of the late PERPETUA BOCCO. That objection was overruled. The objector was aggrieved by that decision and filed ajn appeal before the Tanga District Court gamely Civil appeal No. 30 of 2003. * While the above mentioned appeal was pending in the appellate District Court, the respondent STEVEN MACREA filed objection proceedings in the Civil Application No. 1 of 2004 of Tanga District Court attacking the appellants appeal on the following grounds: l •! 1. That Civil appeal No. 30 o f 2003 was wrongly filed because the appellant CHARLES BOCCO omitted to indicate the record that he was acting and appealing under the Power of Attorney for DAVID BOCCO. . '2 . The appellant CHARLES BOCCO unceremoniously an wrongly amended his petition o f appeal without seeking and obtaining leave of the Court to amend his petition of appeal. 3. That the Civil appeal No. 30 of 2003 was filed out of tii ; ; 4. That the time the appellant CHARLpS BOCCO swore 1 affidavit he had already changed his faith to a Moslem. tfi In its decision dated 18 October, 2004 the Tanga District Court upheld the objection proceedings on the first and second grounds and dismissed the third and fourth grounds. Consequer the District Court strike out the Civil appeal No. 30 of 2003. The appellant CHARLES BOCCO was aggrieved by that decision of the District Court hence preferred this present appea Being represented by Mr. Akaro, learned advocate, the appellant lodged four grounds o f appeal namely; 1) That the learned Resident Magistrate ered in law in titli his decision “JUDGEMENT” whereas the same should have be< labeled “RULING”. 2) The Learned Resident Magistrate erred in law and fact i absolutely holding that the appellant had no Locus Standi. 3) Without prejudice to ground No. 2, the Learned Residei Magistrate erred in law and fact in not finding that the irregulari of the Appellant lodging the appeal in his own name was curabl for purposes of administering substantive Justice. . * 4) The Learned Resident Magistrate erred in law and fact in striking out the entire appeal whereas the Coiirt could have proceeded with the un-amended petition of appeal or otherwise grant leave for formal presentation or admission of the amended petition of appeal. : ' •' - The respondent STEVEN MACREA- was represented by Mr. Sangawe, Learned Advocate. By consent of the parties the appeal =was argued by way of written submissions which were duly filed in accordance to the Court schedule. It is important to point out here : that in his written #submission, Mr. Akaro i Learned counsel for the appellant opted, with a leave o f the Court to consolidate grounds three and four and argue them together. On the first ground of appeal Mr. Akaro submitted that it is trite procedural law which does not require support of express legal authority* that “Judgement” emanates from final decision of a case or an appeal but decision emanating from interlocutory proceedings are called “rulings”. The counsel contended that the distinction is vital for purposes of execution or further proceedings. Therefore mixing-up the two is fatal. On the second grand of appeal Mr. Akaro submitted that from the very beginning of the case the appellant was all material time acting under Power of Attorney for DAVID BOCCO. Therefore the mere fact that appellant failed or omitted to indicate on the face of the record that he was acting under Power of Attorney for DAVID BOCCO in Civil Appeal No. 30 of 2003 is a curable error and not fatal to the Justice of the case. The counsel contended that since it is undisputed that the appellant had that Power of Attorney then his apparent lack of Locus Standi was not as absolute as it was held by the District Court; Mr. Akaro argued that such irregularity on the part of the appellant, who is a layman was curable and not fatal to the proceedings. On the third and fouth grounds of appeal, Mr. Akaro insisted that if this Court uphold the second ground of appeal that the appellant had a Locus Standi in the understanding that he was at all material times acting as Attorney for DAVID BOCCO, then the . third ground of appeal will be automaticaly allowed for purposes of administering substantive justice. Mr. Akaro.!submitted that even the fouth ground of appeal will be automatically allowed because the effect of it all is to hold that the District Court should have proceeded acting on the un-amended petition of appeal. .On the other hand, Mr. Akaro contended,, if the Court agrees with the District Court that it was fatal for the appellant to amend his appeal without prior leave o f the Court, then for the ends of justice the District Court should have allowed or otherwise directed the appellant to formally present an amended petition of appeal to the effect that he was appealing under Power of Attorney for DAVID BOCCO. Finaly, Mr. Akaro submitted that the procedural and apparent minor technicalities involved in the case should not be allowed to take upper hand which would results in defeating justice. He cited the case of GENERAL MARKETING CO. LTD VS. A. SHARIFF (1980) TLR61. In reply, Mr. Sangawe Learned counsel for the respondent started by narrating the historical perspectives of the whole case and how the appellant CHARLES BOCCO acting under Power of Attorney for DAVID BOCCO adduced evidence before the primary court as SM2 and at the sametime his representee DAVID BOCCO adduced evidence in the matter as SM 14 in the original Administration cause No. 9 o f 2002 at Tanga Urban Primary Court. In my view the issue of representation and appearance of the holder of Power of Attorney and his Principal party before the trial Primary Court may be argued in the appeal No. 30 of 2003 if j this present appeal is allowed. At this stage it is imperative and necessalry to determine the merits of the presentappeal only. On the first ground of appeal Mr. Sangawe, counsel for the respondent attacked that ground as a ridiculous one in the sense that what matters in any decision is the contents of the decision, points of determination and the reasons of the said decision but not the title o f the decision. He insisted that the.mistitllng of the decision ils an issue o f form which is not fatal to.th£ proceedings as it never occasion any miscarriage of justice to the parties. Nonetheless, Mr. Sangawe conceded that “judgments” emanates from final decision of a case or an appeal while “rulings” rises from interlocutory, proceedidngs but concluded that mixing the two titles is not fatal. The counsel cited the case of ATLANTIC ELECTRIC LTD VS. MOROGORO REGION COOPERATIVE UNION (1984) LTD (1993) TLR 12 where it was held that format given may! be disregarded but not the substances o f {he information given. On the second ground of appeal Mr. Sangawe submitted that from the beginning of the mater at the Primary Court it is expressly that the appellant CHARLES BOCCO was appointed and given Powers to appear and represent DAVID BOCCO under Power of Attorney. Therefore the appellant should have lodged the said appeal as attorney of DAVID BOCCO and not in his own personal capacity as CHARLES BOCCO. Mr. Sangawe contended that the Distirct Court had properly decided that the appellant Mr. CHARLES BOCCO had no Locus Standi to file an appeal No. 30 of 2003 on his own capacity. Coming to the third and fourth grounds of appeal Mr. Sangawe submitted that on the third ground the counsel for the appellant was merely furthering the arguments on the issue of Locus Standi. He submitted that the irregularity featured in the District Court appeal, is not one of form but substance, which is not curable. Mr. Sangawe conceded with the Principles enunciated in the case of GENERAL MARKETING CO. LTD (Supra) that the rules of procedure should not be used to defeat justice, but he emphasized that where the irregularity arising out of procedure has gone into the crux and root of the matter as the present case, the court’s hands are tied-up and they have no choise on that but to declare the proceedings null and void. Finally, Mr. Sangawe prayed for the Court to disniiss the appeal .with costs for devoid of merits. \ In his rejoinder, Mr. Akaro, Learned counsel for the appellant re-interated his submissions and insisted that the irregularity apparent on the appeal record was merely formal and not substantive. Having recapitulated, albeit briefly the submission and arguments advanced by both side, I now turn to determine the grounds of appeal. On the first ground o f appeal I earnestly depart with Mr. Sangawe th a t, that ground is ridiculous. The learned counsel will agree with me that the decisions of the Court are titled differently depending with its nature, type of the mater before the court and relief sought. Incidentally, after labeling that ground of appeal-ridiculous, Mr. Sangawe later agreed with his learned friend’s submission and conceeded that judgments emanates from final decision of a case or appeal while the ruling rises from interlucutony proceedings. Therefore, the Resident Magistrate was wrong to title his decision as a ‘judgement instead of a ‘Ruling’. The question is whether such irregularity is fatal to the whole decision or proceedings. Without much ado the answer is in negative. In the circumstances of the case the irregularity has not prejudise the parties nor occasioned any miscarriage of justice to them. It is a formal, minor and curable irregularity. That means the first ground of appeal fails. ; On the second ground of appeal, I earnesty join; hands with Mr. Sangawe’s submission that it was wrong and incurably wrong for the appellant CHARLES BOCCO to lodge the appeal in his personal capacity without indicating that he was representing and acting under power o f attorney for DAVID BOCCO. I do agree with Mr. Akaro, learned counsel that it is true that at all material times the appellant had been acting under power of attorney for DAVID BOCCO but it is not apparent on appeal record as to exactly why He suddenly changed his minds and opted to lodge that appeal in'his own name and capacity leaving his principal ■ aside. One is entitled to question and probably guess the intention of the appellant. It must be known that legal representation of . anykind demand a high standard of openness, honesty, and integrity. It is mandatory for anyperson representing another person under Power of Attorney to disclose that fact whenever dealing with the interests of his principal party at any stage. i i The fact that the appellant CHARLES BOCCO is undisputed holder of power of attorney for DAVID BOCCO does not gurantee the former to lodge an appeal or engage in any transaction under that capacity without revealing that fact on records and all transactions. In my view, since the record of appeal does not indicate that the appellant CHARLES BOCCO was appearing under Power of Attorney for DAVID BOCCO and since CHARLES BOCCO in his own capacity had no Locus Standi to lodge the appeal, the District Court was justified to struck out the appeal. Likewise, I do concur with Mr. Sangawe’s submission on the third and fourth grounds of appeal. The irregularity of the appellant lodging the appeal in his own name and capacity is fatal and incurable because it goes to the roots of the whole matter as lack of Locus Standi on his personal capacity was absolute. Furthermore the appellant was proceduraly wrong to unceremoniously amend the plaint without seeking and obtaining leave of the Court. Moreover, the District Court could njot have proceeded with the un-amended petition of appeal because it was highly defective and it could neither grant leave for formal presentation or admission of the amended petition of appeal because there was no application to that effect. To say-the least, the whole appeal was haphazardly prepared and lodged before the Disttrict Court. Even in the present Civil appeal the appellant is not free from difficulty because the parties are CHARLES BOCCO (As Power of Attorney for DAVID BOCCO) Appellant Vs. STEVEN MACREA (As administrater of the Estate of the late PERPETUA BOCCO) Respondent. -It means the Appellant CHARLES BOCCO as a representantive of DAVID BOCCO is appealing against a decision in which DAVID-BOCCO was not a party nor represented. The record is clear that in the Civil Application No. 1 of 2004 which originates from Civil Appeal No. 30 of 2003 of Tanga District Court, the parties were • CHARLES BOCCO Vs. STEVEN MACREA. All in all this appeal must fail for devoid of merits. The • appeal is accordingly dismissed with costs. It is so ordered. M.S. Shangali JUDGE 18/4/2006 Judgement to be remitted to the District Registrar, Tanga High Court for delivery before the parties as soon as practicable! M.S. Shangali JUDGE 18/4/2006.