jabir hassan ndumballo vs hassy bessen kitine 2022 tzhclandd 12744 19 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO.197 OF 2022 JABIR HASSAN NDUMBALLO (Adminstrator of the Estate of the late Hassan Ndumballo)............................. PLAINTIFF VERSUS HASSY BESSEN KITINE............................................ DEFENDANT RULING Date ofLast Order: 12.12.2022 Date of Ruling: 19.12.2022 T.N. MWENEGOHA J On the 12th of December, when the case came for defense hearing, Ms. Lydia Susuma, counsel for the defendant prayed orally to proceed with the defense through a Power of Attorney, owing to the reason that the defendant is sick. Mr. Batton Mayage for the plaintiff, objected the prayer by the defendant's counsel to proceed with the defense by power of Attorney. He insisted that, there is no proof that the defendant is really sick to qualify him to be represented through a Power of Attorney. In her rejoinder submissions, Ms. Susuma insisted that, under Order III Rule 2 (a) of the Civil Procedure Code, Cap 33 R.E 2019, the Power of Attorney allows the donee to act on behalf of the donor. Since the donor is sick, the donee is allowed to step into his shoes and testify for the defendant. i I have considered the arguments of both parties with regard to the issue prayed by the defendant's counsel, that the donee, one Khaletsi Hassuma Kitine, be allowed to testify on behalf of the defendant, by virtue of the Power of Attorney. I will start addressing the validity of the Power of Attorney itself, as the same is defective. I have read the document in question and found the same to be confusing as to whether the said Power of Attorney was given by the defendant alone or together with other persons. On the face of it, this Power of Attorney has given to the donee by more than one donor, the defendant and others. However, it has been signed by one donor only. In addressing the issue it was the contention of the applicant that the same is just a typing error. It is my opinion that the defect on the power of Attorney is not minor capable of making a right-thinking person to believe that it is an accidental typing error. Rather, it communicates what I have already explained above. In that case, I allow the objection by the counsel for the plaintiff and reject the prayer by the defendant's counsel of allowing the donee in the defective Power of Attorney to defend the suit on behalf of the defendant here in above named. The defendant is ordered to appeared and present his defense on the dates scheduled for the same. . Mwenegoha. Judge 19/12/2022 2