hashim hassan mussa vs dr crispin semakula and another 2021 tzhccomd 3342 14 september 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF THE

TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM MISC.COMMERCIAL APPL. N0.40 OF 2021 (Arising from Commercial Case No.31 of 2019) HASHIM HASSAN MUSSA.................................. APPLICANT

VERSUS DR.CRISPIN SEMAKULA......................... 1stRESPONDENT STANDARD CHARTERED BANK LTD........2nd RESPONDENT

RULING Date of Last Order: 12/07/2021 Date -Judgement: 14/09/2021 NANGELA, J:, On the 25th day of March 2021, Mr Gabriel Simon Mnyele, the learned counsel for the Applicant, filed this application under a certificate of urgency. He certified that the matter at hand is of utmost urgency, given that the 1st Respondent is on the move to illegally access the accounts and dialysis equipment in a Company known as "Access Medical Dialysis Centre Limited", and at the detriment of the Applicant. The Chamber Application was filed under Order XXXVII Rule 2 (1), (2); section 95 of the Civil Procedure Code, Cap.33 [R.E 2019], and section 2 (1) of the Judicature and Application of the Laws Act, Cap.358 [R.E Page 1 of 25 2019]. It is supported by an affidavit of Mr Abdullah Nur Guled duly affirmed, attested and filed in this Court. In his Chamber summons, the Applicant seeks for the following prayers, to wit, that: 1. this hounourable Court be pleased to grant an injunctive order against the 1st Respondent restraining him from changing the particulars of Account No. 8702021856400 (USD); and Account No.0102021856400 (TZS), held by and In* the 'sama; Z\ name of Access MedicaL Dialysis v r-— X 'Y Centre Limited^7^^.2d^&^ 2na Respondents "international House Branch,/including^the .change of £ signatories ofr^tne^ said accounts, piling tfte-filing^and determination th^intended appeal to the

Court ^^^^o^ppeaK Ti^t/ the hounourat>le Court be j pleased to grant a restraint order, --^7 restraining the 1st Respondent from taking possession of dialysis equipment kept at lease premises by the said Access Medical Dialysis Centre Limited in Mwanza, Upanga and Mikocheni Dar-es Salaam, pending the filing and determination of the intended appeal to the Court of Appeal. Page 2 of 25 3. That, this honourable Court be pleased to direct the 2nd Respondent not to operate or make any changes of operation of the aforementioned accounts herein above pending the determination of the intended appeal.

4. Costs of this Application. On the 22nd day of April 2021, the 1/^Respondent filed a counter affidavit deponed by oneXDorothea Joseph Rutta. Besides, the 1st Respondent raised a notice of preliminary legal issueftthatValied for the attention of this Court. Th^^^^pondtegt aid not file a counter affidavit. The ^^r^dsx^fobjection raised by the 1st Respondent are as^followsMhat':/ 1. tti^ppJIcatio^fo’r' injunction and /Restraint orderis misconceived and ^\untenabfeas it has no main suit k \and"iszbased on a Miscellaneous Commercial Application which has J long been decided on; 2. the application is an abuse of court process as it is pre-empting the execution of a decree held by the 1st Respondent and, further that, it is a stay of execution in disguise; 3. the application is misplaced and improper before this Court and its affidavit (in support) has been Page 3 of 25 sworn by a person with no locus to sue or swear the same, having been based on a defective power of attorney. On the 7th day of June 2021, this application was scheduled for mention. On the material date, the Applicant enjoyed the legal services of Ms Anna Dismas Kailole, learned advocate, holding the briefs of Advocate Mr Gabriel Mnyele. Ms Dorothea Rutta and 4^Ema^nuel Saghan, learned advocates, app^arefl the Respondents. Upon being invited by the-Couif^Ms^ailole prayed that, the preliminary objections raised by

the I51 Respondent be disposecrof by way ofzwritten submissions. I granted the prayer, as it was\pnceded to by the parties, and I issued a schedule^of,.filing, which the parties have duly compli^wifh^£w^ll?therefore proceed to summarize and assess. tlSirSjubmissions before I address the f Sy pertinent issue. x K ) iM^submission, Ms Rutta submitted, in support of the preliminary objection, stating, in regard to the first object, that, the current application has been based on a winding up petition which has long been decided and, for that matter resjudicata. She has attached, for reference, the Decision of this Court in the Misc. Commercial Cause No.31 of 2019 and a Drawn Order in respect of it. Page 4 of 25 Ms Rutta submitted, as a matter of legal principle, that, all applications for injunctive or interlocutory reliefs must arise from a pending suit. She contended that, contrary to that principle, in this present application before this Court, there is no main suit for there to be a prima facie case as it was articulated in the case of Atilio vs. Mbowe (1969) HCD 284. case was long disposed of. She furthei^reli'ed,on the case of The Registered Trustees oKSunni-Muslim Jammat vs. Sayed Mazar Kadii^8t Others^Civii App. No. 18 of 2002, TZCA 248; ((18th May '20t)7), to support her A 'K submission. In that case, the; Court of Appeal stated, on page 7, in respect totthe matter that

was placed before it, that: fe orders which were orders which were being sought by the respondents, ought to have been based on an existing suit. Indeed, Order XXXVII of the C.P.C speaks for itself. There must be an existing suit before a temporary injunction and/or any interlocutory order could be lawfully granted by any Court." Page 5 of 25 As regards the second ground of objection, Ms Rutta submitted that, following the dismissal of the winding up petition (the Misc. Commercial Cause No.31 of 2019), the 1st Respondent proceeded and commenced execution proceedings before this Court. To that effect, she attached, as proof thereof, the Court's summons on the execution of the Orders of this Court in the Misc. Commercial Cause No.31 of 2019. Site held her ground, contending that, the orders^sough¥\^>the Applicant are meant to forestall arrd mate^duo^lmit the efforts to execute the decree, which^efforts are currently underway. In her view, the Jav^ is^er^categoricai that, upon filing for an executionby an Applicant, the only open course to challenge itxis^jyay of stay of execution and not otherwis^^ Besid^s^Ms^Rutta upped her tempo of argument submitting that/?even though the Applicant herein has prefer^d^an^\ppeal through a Notice of Appeal already filed in the Court of Appeal, he must in the first place comply with the requirements of Rules 11 (3), (4), (5)(a)(b), and

(7)(a),(b),(c) and (d) of the Court of Appeal Rules, 2009 (as amended by GN.344 of 2019). Ms Rutta contended, therefore, that, the current application is nothing but an abuse of the court process and a circumvention of the procedures of this Court. Page 6 of 25 As for the third ground of objection, it was Ms Rutta's submission that, this application is misplaced, improper and the affidavit supporting it has been sworn by a person who has no locus to sue and or/swear the same, it having been based on a defective power of attorney. To elaborate on that, Ms Rutta contended that, the fact that the application was brought under a power of attorney ought to have been reflected in its heading. She contended that, nowhere is this fact^refleitedK in^the chamber summons. Ms Rutta contended that, in suits uridgj; a power of attorney, a person, not j^resident-of\Tanzania, may appear by a lawfully authorized^at^rney. It was Ms Rutta's submission that, in the present^application, there is no evidence the ApplicantXlMrJHasnim Hassan Mussa) whose address as^penpage\l paragraph 1 of the Power of Attorney is Dar-es-Salaam, Tanzania, is out of Tanzania or not a^resident of'Tanzania. She argued, therefore, that, Mr Abdul^JNur^Guleid lacks locus to sue and cannot rely and swear arraffidavit on the basis of the power of attorney. To bolster her submission, Ms Rutta has relied on the case of Rayan

Salum Mohamed (by virtue of special power of attorney of Sherdel Ghulam Rend) vs. Registered Trustees of Masjid Sheikh Albani, Civil Appeal No.340/18 of 2019) TZCA at Dar-es-Salaam, (Nov.2019) noting that, in that case, the Court of Appeal Page 7 of 25 was of the view that, a person not a resident of Tanzania, may appear by a lawfully authorised attorney. Ms Rutta was of the view that, the power of attorney did not authorise the deponent in the affidavit the mandate to institute the current application. She argued that, the special power of attorney he held gave him power with respect to the conduct of the Misc. Commercial Cause No.31 of 2019 and Misc. Commercial Gause No. 147 ^\\ % <9/202.9 only, if one is to look at paragraph 1 of the special power of attorney dated 4th February.

2020. In view of the above, Ms Rutta submitted that, since the power of attorney was^ "Special Power of Attorney" and not a '-Genera Power of Attorney", * W V then, the donee lacks locust ancZcannot handle issues which are foreignt^notsi^^ded in the power of attorney. Ms ^Rufta^furtl^r^ contended in a pre-emptive approachjh^'inunsteinces as this one, some tend to seek the aid of the^overTriding objective principles. However, she calleoxto thej attention of this Court that, the oxygen principle/as it is also referred to, cannot be used to help a party to circumvent the mandatory rules of the Court. She called to her aid, the case of Martin D. Kumalija and 117 Others vs. Iron and Steel Ltd, Civil Appl.No.70 of 2018, CAT, (unreported) which supports that legal position. Page 8 of 25 That being said, Ms Rutta closed her submissions by observing that it will be absurd for this Court to entertain an application which is defective and against the rules of procedure. The only remedy, she contends, is to dismiss it with orders as to costs. In response to the 1st Respondent's submission, Mr Mnyele, the Applicant's learned counsel contended, as his preliminary observations, that, in between the authorities relied upon by the 1st Respondent, there iT'attached^ an application for execution filed on 13th Apri£gQ21<as an annexure. He submitted that, it is "now settled that, no annexure can be

tendered before—the Court during submission stage. M^Mhy^^^ubmitted that, the respective annexure ought foJiaye*been attached to the affidavit and/or ^counter-affidavit in order that it may be referred to during tna?submission stage. To sup|DoC^that submission, he relied on the reported^ase^of^rUlCO vs. Mbeya Cement Company Ltd and Another [2005] TLR 41. Mr Mnyele was of a further view that, aside from the fact that the 1st Respondent's attachment of the annexure to the submission and reliance on it was erroneously, the practice also went against the established principle that govern preliminary objections as articulated and followed in various decisions including those of the Court of Appeal. Page 9 of 25 The principle, he argued, is to the effect that, a preliminary objection ought to be a pure point of law which does not need the ascertainment of facts in order to determine it. To support that view, he referred to this Court the decision of the Court Appeal in the case of Shahida Hasamali Kassim vs. Mahed Mohamed Gulamal Kanji, Civil Appl.No.42 of 1999, (unreported) and Mukisa Biscuits Manufactires Company Ltd vs. Westland Distributors Ltd [1969] EATOO^Fx^^ It was Mr Mnyele's submissicjn, tqat^efe^ence to the impugned attachment renders^the^ preliminary objection a matter of fart^tfiat^equires^ ascertainment, thus disqualifying the^same frorn^ipg referred as

such. Consequently, he urged this Court to disregard the annexure attached\to\th^j^tten submission filed by the 1st Respondent^andargued” that, since the 2nd objection is premised or^h^annex^re, it must crumble as it has no legs dpoiT^^ch tcrstand. y^R^sporiding to the first ground of objection, Mr Mnyele~submitted that, since there is no statutory definition of the term "suit" but that, section 22 of the CPC provides that a suit may be instituted by presentation of a plaint, or in such other manner as may be prescribed, presentation of a Chamber Summons/Application, originating summons, petition or reference to the Court amounts to the filing of a suit. Page 10 of 25 In view of that, he urged this Court to make a finding that the Misc. Commercial Cause No.31 of 2019 was a suit submitted in a prescribed manner by way of a petition under the Companies Act, Cap.212 and the Insolvency Rules, GN. NO. 43 of 2005. He contended, therefore, that, an application for injunction can be applied under that suit (i.e., Misc. Commercial Cause No.31 of 2019) in accordance with the CPC/t Secondly, Mr Mnyele submitted that, Order^O^VII, upon which this application for^injur^tipQ^Xmade, provides for three scenarios under which ar^pplication for an injunction can be made. TheseThe*pointed out, are: first, under Order XXXVII Rule> 1 (a) in regard to a^propei^/that^nay be in the danget/jof bejng

wasted, damaged, or aliena^dsb^anotherparty to the suit or 'Whe^he property is about to be sold in ^xecution-of';the decree. ^eawMjfunder Order XXXVII Rule 1 (b) where the defendant threatens or -intends to remove or dispose his property in order to defraud his creditors, a litigant may apply for an injunction. Third, under Order XXXVII Rule 2(1) where a party to the proceedings may apply for an injunction if the Defendant threatens to commit a breach of contract or other injury of any kind at Page 11 of 25 any time after the commencement of the suit and either before or after judgement. It was Mr Mnyele's correct submission that, the two scenarios presented by Order XXXVII rule 1 (a) and (b) there must be a pending suit. He relied on the case of Seedcap Limited vs. PSRC and Another, Misc. Civil Cause No.244/2003, (unreported) to support his Z\ submission. He contended, however, that, thereKare some lingering doubts regarding the correctness^^^Cpurt of Appeal Decision in the case of The^egistereci^Trustees of Sunni Muslim Jammat (supraJ^S^V* Mr Mnyeie submitted4iat,\nder Order XXXVII rule A 2 (1) an application ijnay bemade^even after a suit has been concluded. He contended?for that matter, that, since the present applicationxwas>brought under that rule and not under^RuleJ. of Orzder XXXVII, pendency of a suit is not yneGessity'an^the first objection should be dismissed in

its^entiretyJ 'AsAregards the 2nd objection, it was Mr Mnyele's submission that the same should be disregarded. He reiterated his earlier submission that the annexure referred to by the Applicant were wrongly annexed to the submission. He maintained that, the current application was filed in Court because the 1st Respondent is attempting to change particulars of the account and withdrawal monies there-from and take possession of Page 12 of 25 equipment not decreed in the Court's ruling dated 15th December 2020. He contended that, the process of payment could only be triggered if the parties had signed a share purchase agreement followed by the share transfer deed. To him, those two documents should, had they been there, proved to the 2nd Respondent that the Applicant no longer has interest in the company. Mr Mnyele contended further that, under Rule 11(4) of the Court of Appeal Rules, an applicationTor-stay could V only be made if an applicationifor^ex^ution, is filed and notified to the judgement ,debtdr.^He-argued that, this application was filed ^on 22^Mareh 2021 while the appended copy of applSp^fo^execution was filed on 13th April 2021 afid servgdjjpon the Applicant herein on 28th April ^2021^ He\argued, therefore, that, since the current ap|lication;^was filed before an application for execdfGS^as filecf and served upon the Applicant, it was asked thisXourt to; therefore,

dismiss the 2nd objection as well. As regards the last objection, Mr Mnyele submitted that, the argument that the application is improper for having not indicated that it was brought under a power of attorney is misconceived. He argued that, the person applying to the Court is the Applicant himself only that the Page 13 of 25 affidavit in support has been sworn by a person having power of attorney. Mr Mnyele argued that, clause 1 of the power of attorney read together with clause 3 give power and locus to the deponent to affirm affidavit. He submitted that, reading the power of attorney it will be erroneous to contend that it ended with Misc. Comm. Appl. No. 31 of 2019 and 147 of 2019. As regards the applicability of the Court of Appeal Decision in the case of Rayat Salum Mohamed (supra) A\ X Applicant in Tanzania aLthe time ofxflljng will amount to a purely matter of fact ^/hich^rann’of be determined as if it was a matter of Jaw. \x J He conten'dea'Turther that, though at the time of AX 1 V signing they^Weryof attorney the applicant was temfD^raSiy^ D^i?es-Salaam, he has indicated where he would-be, a fact confirmed in paragraph 1 of the affidavit in suppb'rt'6f the chamber summons. He maintained that, the averments that the Applicant is in Tanzania have not been substantiated by the 1st Respondent. Finally, Mr Mnyele submitted that, under Rule 30(2) of the Court of Appeal

Rules, it is clear that the Rules do not apply in the High Court as they regulate the procedure in the Court of Appeal, as per Rule 4(1) of the Rules. He Page 14 of 25 contended that, appearances and representation in the High Court is regulated by Order III Rule (1) and (2) of the Civil Procedure Code, Cap.33 R.E 2019, and, that, Order III Rule 2(a) justify the acts of Mr Abdillah Nur Guled's to affirm an affidavit by virtue of the power of attorney. He urged this Court, therefore, to dismiss the third preliminary objection as well. Having heard the learned counsel appearing for the parties and having considered the materials on re^o^ the question of law falling for my consideration^is^hether the three preliminary objections raised^dheXj* Respondent have any merit in them.^In its^ first—objection the 1st Respondent contends that sioce^the^current application has been based on a^suit whicfbfias long been decided, K * i.e., the Misc. CommerciaLCause No.31 of 2019, the W application JsHncompetent. In other words, it is being alleged that^ih^this^resent application before this Court, there^Tnomaimsuit for there to be a prima facie case as it wassarticulated in the Atilio vs. Mbowe (supra). OrTthe other hand, the Applicant contends that, since the present application was brought under Order XXXVII Rule 2(1) and not under Rule 1 of Order XXXVII, pendency of a suit is not a

necessity. In the first place, it is indeed a correct general legal position that, all applications for injunctive or interlocutory reliefs must arise from a pending suit. The cases of Atilio vs. Mbowe Page 15 of 25 (supra), The Registered Trustees of Sunni Muslim Jammat (supra) and that of Morities Corporation Limited vs. CRDB Bank PLC (Misc. Civil Application No.24 of 2018) [2018] TZHC 2700; (28 June 2018) apply to that principle. As I indicated herein, the Applicants contention is that the prayer for temporary injunction sought for in the chamber summons, comes within the provision of Rule 2 of Order XXXVII, and not Rule 1 of that order. Urjder Order XXXVII Rule 2(1) of the C.P.C, the^^is^ear that, a party may: p/ "at any time ... after^iiiciqmenL^aDDlv to the court ^fok aXtemporarv injunction ^to restrain\the defendant form ^comiplttlng^Xthe ... injury complained oXrinjury of .. relating to ^t^s^ne^pro^ty or right." ^--^sto^pWsent application, it is true that the Mis&Confntercial Cause No.31 of 2019, was long dispose^oTby this Court and its ruling was delivered on 15th December 2020. It is also true that the current application has been brought not under Order XXXVII Rule (1) of the C.P.C, but under Order XXXVII Rule 2(1) of the C.P.C. It means therefore, that, the application can still stand because it was brought under Order XXXVII rule 2(1) of the C.P.C. As such, the

first objection is devoid of merits and I hereby overrule it. Page 16 of 25 As regard the second objection, the main contention is that the application is an abuse of court process as it is pre-empting the execution of a decree by the 1st Respondent and, further that, it is a stay of execution in disguise. So far the Applicant has contended that, all documents relied upon and which were not attached to the affidavit filed by the 1st Respondent should not be counted or relied upon. In essence, it is trite, as it was held in the^case of TUICO vs. Mbeya Cement Company\Ltdz and Another [2005] TLR41; that, anrfexurei^t attached to an affidavit cannot be renderecRand~relied upon in Court during submission stage.-4ndeed tney-ought to have been attached to the affidavit ajjd^fjjXounter-affidavit if one intends to refer t^hermduringthe submission stage. In this/application, the 1 Respondents counsel has argued thaf'therthasjbeen already filed an application for execdtfoF^d^^haf, the Applicant wants to pre-empty it. She ha^terrped that to be amounting to an abuse of the court process. Agreeably, it is the law that, upon filing for an execution by an Applicant, the only open course to challenge it is by way of stay of execution and not otherwise. However, as correctly contended by the learned counsel for the Applicant, the current application was filed on 22nd March 2021 while it is shown

that the application Page 17 of 25 for execution was filed on 13th April 2021 and served upon the Applicant herein on 28th April 2021. In view of that, I tend to agree with the Applicant's submission that, since the current application was filed before an application for execution was filed and served upon the Applicant, it was impossible to file an application for a stay orders. Besides, having been filed under Order XXXVII rule 2(1) of the C.P.C, I do not find the^rationale to turn it down on the ground that it was intended tojpre- empty the application for execution^which^was-not in the Court, in the first place, when this "application was filed. For that reason, I find that^fi^Seoi^objection will as well fall flat. \\ vy As regards the jthird obj^ctipn, the gist of it is that this application/is^misplaced,/improper and the affidavit X''\\ supporting Hrhas been sworn by a person who has no locus to sue and'or/swear the same, it having been based on ^defSdve^ower of attorney. Ms Rutta, the learned counsel for the 1st Respondent has maintained a view that the powerdf attorney relied upon by the deponent of the affidavit supporting the application was special and in respect of Misc. Commercial Cause No.31 of 2019 and, for that matter, did not extend to the filing of the current application. For his part Mr Mnyele, the learned counsel for the Applicant has vehemently denounced

such submissions Page 18 of 25 calling upon this Court to dismiss the third objection as one which is misconceived. He argued that, the person applying to the Court is the Applicant himself, only that the affidavit in support has been sworn by a person having power of attorney. He relied on clause 1 of the power of attorney read together with clause 3, contending that, such clauses give power and locus to the deponent to affirm affidavit. A Besides, Mr Mnyele was of ^the View that, appearances and representation to the£HigruGourt is regulated by Order III Rule (1) and (2)^of the Civil Procedure Code, Cap.33 R. E ^Sl^ra^Xthat, Order III Rule 2(a) justify the acts dfcMr Abdillah Nur Guled to affirm an affidavit by virtue of^the)power of attorney. a K Let me statextha^J^pijinciple, Mr Mnyele is correct when he said^hat the. Court of Appeal Rules, 2009 (as amended 2019)<lcrnpf apply in this High Court because they^are~^ant^7regulate the procedure in the Court of Appeal,^as^er Rule 4(1) of the Rules. However, as regards' the applicability of Order III Rule (1) and (2) of the C.P.C, Cap.33 R.E 2019, let me state that, all that Order III, rule 2(a), requires in relation to a person holding a power of attorney is that, whatever be the power of attorney, that power of attorney must confer the necessary power upon that person. Page 19 of 25 Having said that, the question that follows out

of the above rival arguments is whether the power of attorney relied upon by the deponent of the affidavit which supports this application was or could be relied upon to authorize the deponent to swear an affidavit in respect of this application or was it only confined to the Misc. Commercial Cause No.31 of 2019 as contended? Essentially, a power of attorney can either be general power of attorney or a specific power of^attorpey. When a general power of attorney is gfem^itapplies to everything in which the grantor is interested in, but when a special power is given it appfiesjo'a^specific" matter. In this applicate,^U^xpa^and clause 1 of the Power of Attorney dated 4thzday oj>February 2020 reads as follows:

THE REGISTRATION OF DOCUMENTS ACT (CAPfll7 R.E 2002)

SPECIAL POWER OF ATTORNEY

KNOW ALL MEN TO WHOM IT MAY

CONCERN ^X^-_-THAT I, the undersigned HASHIM HASSAN MUSA with Danish Passport No.211872584, the resident of Dar-es-Salaam, Tanzania, but on temporary visit to Griffenfildsgrade 10, 2200 Copenhagen, Denmark. DO HEREBY ordain, nominate and appoint ABDULLAH NUR GULEID of Dar-es-Salaam with Passport No.TAE 07346 to be my lawful Attorney and for me and in my name and for my use to do the following acts, that is to say: Page 20 of 25 1. To Institute any further proceedings, appear in Court and execute any document required in Court or in any other institution, adduce evidence on my behalf, attend the Court proceedings in respect of the Miscellaneous Commercial Cause No.31/2019 for the Petition for Winding Up of the ACCESS MEDICAL & DIALYSIS CENTRE LIMITED (hereafter referred as "the Company" and "Miscf Commercial Cause Nov.147/2019" for the Appointment of the^ntenm Liquidation of the Company and Comply- with any order of the Court issued towards the proceedingsTor-WindingjUp of the Company^. 2 /X V7 3. For purposes aforesaid-to-do every other act^atter^or thin^i^the court which the Attorney ma^dee^ujt necessary or proper ^<dnTeIation^otfie said hearing and final A>\determination of Applications." ■ From the above caption, it is clear that the power of attorney^referred to by the Applicant was "a specific power of attorney". As I stated earlier, a specific power of attorney is meant

for doing a specific act. In this regard the power of attorney in question was specifically for purposes "in respect of the Miscellaneous Commercial Cause No.31/2019 (for the Petition for Winding Up of the ACCESS MEDICAL & DIALYSIS CENTRE LIMITED) and "Misc. Commercial Cause Page 21 of 25 Nov.147/2019" (for the Appointment of the Interim Liquidation of the Company)". The learned counsel for the Applicant has contended that, the respective power granted to Mr ABDULLAH NUR GULEID (the donee) included powers to swear affidavit in respect of the present application. He has placed reliance on paragraph 3 of the power of attorney. However, as I look at paragraph 3 ofjKat particular ^\\ \ document, it becomes clear to me that,^paragraph three, and if read with paragraph one, deariy^howsjhat, the donee was authorised "to doj^e^^ther;act, matter or thing in the Court which'theAttorney may deem it necessary or proper sih. relation to the said hearing and final ^etermlrmtion of Applications." n K K - The underline phraseojogyjs/ very clear that the border line withiiy4JBich^ihe donee was to operate was demarcat^and-did^n^t extend to new borders in the form/Sfnew'appli^ations as the one at hand. Bom., the Bombay High Court was of the view that: "However full the powers may be which are conferred upon the donee, if they relate to one particular matter, if they are not general in the sense

as referring to his whole business or a particular section of his business or to all his litigation, then the mere fact that wide and full powers are Page 22 of 25 conferred upon the donee with regard to one specific matter will not make the power of attorney a general power of attorney. The connotation of the word "general" is that the power must be general with regard to the subject-matter, not general with regard to the powers conferred in respect of subject­ matter. What one has got to look at before one decides whether a power is general or special is what is the subject-matter in respect of which this power is conferred^ and if the court comes to the conclusion that the subject-matter is not general,%that it is restricted to something specifi<^some> things particular, then the power<ofattorney would not be a generakpower of-attorneyH^ As I stated here above, thevpower granted to Mr XX Yv Gulein, (the donee), he~was hobgrarited a general, but a specific power of attorney ’ang^which applied for specific proceedings (and not all^litigations). That being said, I cannot buynyhat Mr Mnyele has endeavoured to submit, arguinglthat, tnejTower of attorney also extended to the f \Z filing^of the current application. \yhatjhhen, is the effect of the finding that the power of attorney which Mr Gulein relied upon when swearing the affidavit which was filed in support of the current

application? The response to this question is very obvious. The supporting affidavit becomes incompetent for being deponed by a deponent who held no such powers as he stated in the affidavit to be holding. Being Page 23 of 25 incompetent, it cannot support the application. It is as if no affidavit was filed to support the application. And, in the absence of an affidavit which can effectively support the chamber summons, then, the application becomes invalid as well as incompetent by reason of the fact that it becomes noncompliant with the relevant provision of Order XLII Rule 2 of the Civil Procedure Code, Cap.33 R.E 2019, which/require such application to be supported not only by grounds^in^the body of the application, but4 a Isa'^by^.affidavit. Consequently, once found that the supporting affidavit is incompetent, and once the chamber-summons stands without a supporting ^da^i^the^only remaining course to be taken is to havefit strudtout/* In view ottqe abovejdeliberations, it my finding that the third ground of\objection has merit and I hereby } ’if uphold it. Since-the-2 Respondent did not appear in court^oFfl&clocbment in respect of this application, I only gran^^rastst^the 1st Respondent. Airsaia and done, the current application is hereby struck out-with costs to the 1st Respondent. Xt is so ordered SALAAM, this 14th SEPTEMBER 2021 Page 24 of 25 HON. DEO JOHN NANGELA JUDGE, Page 25 of 25