20121122 TZHC Dar es Salaam 1

·. :j'cp4;'.: :!"' '.~\- f :,::J:-;>~'..:{ }'./, ·"'i)' :<:(: :: ·,,,> ,:; ';;;;._,ti':F;' tc+ · ·• '<{,- ": .· •· :, ,: ,/., - ,,_,,. . _.,-c\. • IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE N0.167 OF 2010 FATMA MOHAMED .................................................... PLAINTIFF VERSUS SOSPETER KAMUGISHA ..................................... DEFENDANT RULING A.F. Ngwala,J. The Plaintiffs suit has been instituted by one Orestick Lembo Ngulimi, in the Capacity of a holder of a Power of Attorney of Fatuma Mohamed. The claim in this suit is against the defendant for a legal declaration that the Plaintiff is the legal owner of Plot No. 309, Block "C" Boko within Kinondoni Municipality in the City of Dar es Salaam, The Defendant, has objected the appearance of Orestick L. Ngulimi under the ·Umbrella of a Power of Attorney. Mr. Buberwa, the learned advocate for the defendant has submitted that the Plaint, discloses the Plaintiff to be a resident of Dar es salaam, but the Power of Attorney so issued to Orestick Lembo Ngulimi does not give the reasons for issuance of such a Power of Attorney. The Plaintiff or the said Orestick Lembo Nguljmi did not contest the Objection. 1 After going through the record I have noted that the Plaintiff, Fatuma Mohamed signed a Special Power of Attorney to Orestick Lembo Ngulirni. The defendant has also objected to this document on grounds that it is not stamped by the Notary Public. -Indeed it is not stamped. The Plaint too has been wrongly verified by the said Orestick Lembo Ngulimi, and the verification is not in accordance with the provisions of Order VI Rules 14 and 15 of the Civil Procedure Code. [Cap. 33 R.E. 2002]. On this, I also do not agree that one Orestick L. Ngulimi should appear for the Plaintiff or to represent the Plaintiff in this suit. The Plaintiff herself, as stated in the Plaint, is a natural person who resides in Dar es Salaam. It is my considered opinion that having Power of Attorney alone cannot entitle a person to institute, prosecute or defend a case for someone in the High Court. A Power of Attorney in the High Court is only permitted if the person executing the Power of Attorney is out of Tanzania or is incapacitated in one way or another. The reason has been expressly stated by the Court of Appeal of Tanzania in Naiman Moiro Vs. Nailjiet K.J. Zablon [1980) TLR 274 which has settled out that "A Power of Attorney in the Court of Appeal, the High Court and Lower Courts doesnot apply where the · party concerned is present in court''. In another case of George Celestine of Dar es salaam Nursery School and Another [1998) TLR 512 the Court of Appeal of Tanzania held that "Appearance by Power of Attorney by a person who is a resident of Tanzania is not permitted". 2 In view of the above, I do not see any reason for the Plaintiff to assign one Orestick L. Ngulimi to represent her in this Court while· she is a resident of Tanzania. The Plaint too which is defective because it has been wrongly verified by the said Orestick Lembo Ngulimi is rejected. I therefore uphold the objection. Consequently this suit is struck out with costs. ~· A.F. Ngwala, JUDGE, 22/11/2012. Delivered in Court this 22 nd day of November, 2012 A.F. Ngwala, JUDGE, 22/11/2012. 3 .··· ..-....... · :. .. -~-~·.~!:_:; ~,.."- 22/11/2012. Coram A.F. Ngwala,J. For Plaintiff Absent For Defendant Absent Court: Ruling delivered in absenti~parties to be notified accordingly. ~~ A.F. Ngwala, JUDGE, 2211112q12. 4