20190531 TZHC Dar es Salaam 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM LAND CASE NO. 94 OF 2017 KAWAIDA MANDWAGA .........................................................PLAINTIFF VERSUS CARLOS RICKY WILSON KILIMBAI ..................................... DEFENDANT RULING Date of last Order. ........... 27/3/2019 Date of Ruling................. .31/05/2019 MLYAMBINA, J. When the matter came for hearing on 27th March, 2019 Dr. Zakayo, Lukumay Advocate for the Defendant reminded the Court that on 28th November, 2018 this Court directed the plaintiff to appear in person because the one who wanted to represent him had no locus standi. Counsel Zakayo Lukumay was of submission that Order III Rule 1 of the Civil Procedure Code Cap. 33 (R.E 2002) requires appearance of parties or recognized agents or advocates. In view of Counsel Zakayo Lukumay, Maalim Abeid is not a recognized agent because the pleading before the court was not drafted by the recognized agent. At the same pace of argument, Counsel Zakayo lukumay advanced a number of doubts: One, the pleadings here were prepared by the applicant herein. The signature of the applicant in the pleadings is quite different from his signature signed before the Ward Tribunal. Counsel Zakayo Lukumay 1 had big doubts that the applicant's signature in the pleadings herein has been forged. Two, in paragraph 1 of the plaint, the Plaintiff alleges that he is a resident of Mbagala Rangitatu working for gain in Dar es Salaam. Three, the relationship of Maalim Abeid Mikongo and of the applicant are doubtful. Four, the pleadings were prepared in 2017 while the Special Power of Attorney is of 2018. Five, the signature in the Special Power of Attorney is quite different from the plaintiff's signature before the Ward Tribunal and that in the chamber summons. Counsel Zakayo Lkumay, told the Court that it is a crime to forge court pleadings and he reminded the Court to warn the applicant and the alleged attorney. He winded up by praying the case be dismissed with costs because his client has been disturbed un-necessary as he won the case before the Ward Tribunal and at the Kinondoni District Land and Housing Tribunal. In response to the fore submissions, the alleged attorney of the applicant one Maalim Abeid conceded that the pleading was drafted on 08/09/2017. But he denied the allegation that the documents were drafted prior representation by recognized agent. It was the reply submission of Maalim Abeid that Section 18 (2) of Cap 216 (R.E 2002) gives powers of representation by an advocate, recognized agent or a relative. Maalim Abeid stated that it is him and the son of the Plaintiff who were given right of representation. According to Mr. Maalim Abeid, Mohamed Kawaida Mandwanga is the 2 one who filed the case before the Msigani Ward Tribunal. Thus, the owner of the case is Kawaida Mandwanga. Maalim Abeid went on to tell the Court that Kawaida Mandwanga studied up to class IV. That, it is possible his signatures are different. In view of Maalim Abeid, Kawaida Mandwanga might have signed in Arabic. Maalim Abeid further stated that, it is him who represented the said Kawaida Mandwanga before the Kinondoni District Land and Hosing Tribunal. The Ward Tribunal's decisions were overruled and the Court ordered the case be filed here. Thereafter, Maalim Abeid submitted that the Plaintif's lawyer was from TLS but he has been employed by AG Chambers. On residence of the Plaintiff, Maalim Abeid stated that the Plaintiff is not the resident of Mbagala. He is the resident of Kimanzichana which is more than 70 km from Dar es Salaam. It is his son Mohamed Kawaida Mandwanga who resides in Mbagala Rangitatu. In view of Maalim Abeid, it was the advocate mistake to plead that the Plaintiff resides in Mbagala Rangitatu. According to Maalim Abeid, Mandwanga and him are relatives. Maalim Abeid's mother is Mmatumbi. Mwandwanga is Mmatumbi, Maalim Abeid's father is Mgindu. He is also Mgindu for that reason. He further asserted that Special Power of Attorney does not require one to be a relative. 3 Besides, Kawaida Mandwanga went to the Ward Executive Officer (WEO). He also went to adduce evidence one day at the Ward Tribunal. In view of Maalim Abeid, if the Court will dismiss this case, it will not be in the interests of justice because the Plaintiff is an old person and residing far. It is also not true that the Plaintiff does not have interests to prosecute the case. Maalim Abeid submitted that the Plaintiff personally went to the Ward Executive Officer of Msigani to claim his shamba. The Plaintiff went to file a case at the Ward Tribunal through his son. He went to adduce evidence. He also went to the TLS. He filed a form and they gave him representation. The Plaintiff was supposed to pay One Million as fees for filing a case by himself. That is why the Plaintiff sought for a letter from TLS for the case to be filed under forma pauperis. Lastly, Maalim Abeid stated that, if his representation is found not valid, let the case not be dismissed. In rejoinder Dr. Zakayo Lukumay submitted that, it is the case of the said Kawaida Mwandwanga and not of Mohamed Kawaida Mwandwanga. Also, it is Mtaa Executive who referred them to the Ward Tribunal. Furthermore, Dr. Zakayo Lukumay did tell the Court that the Ward Tribunal got suspicion that the signature of the Plaintiff was forged. It summoned him and he signed. This is reflected at page 77 of the Ward Tribunal proceedings. On relationship, Dr. Zakayo Lukumay rejoined 4 that the Plaintiff is a Matumbi by tribe. The agent here is Mgindu by tribe. They are not related. TLS cannot appoint the agent hereto represent it here. The Plaintiff's efforts done shows that he should appear by himself. From the fore going arguments by both sides, it should be noted that, a party to the Court Proceedings may be represented by a Power-of Attorney holder duly authorized by the Party/Principal. As submitted by Maalim Abeid, Section 18 (2) of the Land Disputes Courts Act Cap 216 {R.E 2002) gives powers of representation by an advocate, recognized agent or a relative. Similarly, under Order 3 Rule 1 & 2 of Civil Procedure Code Cap33 {R.£ 2002) any appearance application or act in or to any Court except otherwise provided by any law made or done by the party in person or by his recognized agent or by a pleader on his behalf. Order 3 Rule 2 of Civil Procedure Code ( supra) specifies the Power-of-Attorney holder as recognized agents for the Party. Therefore, the Power-of-Attorney holder who is authorized to appear on behalf of the party can appear, file application, engage advocates and act on behalf of parties. I'm of further view that the issue whether the Plaintiff lives at Mbagala Rangitatu or not or he lives at Kimangichana or not; and the issue whether Maalim Abeid is the relative of the Plaintiff or not are not issues which should detain this Court. In fact, such are issues of evidence. It is premature to entertain them at this preliminary stage. 5 I have no doubt in my mind, however, that the pertinent foremost issue in this matter is on the alleged forgery of the signature of the Plaintiff himself in various pleadings involving this matter including the Plaint and the Chamber summons which initiated the proceedings. I say it is important because it goes to the legality of filling the suit and the miscellaneous application antecedent thereto. I do understand that forgery is a crime offence. The Defendant's assertion that the Plaintiff's signature has been forged calls for proof on the standard that is higher than that is required in ordinary civil proceedings. That position can be found in the case of Omary Yusufu v. Ahmed Abdulkadr TLR {1987) at page 169in which the Court held: When the question whether someone has committed a crime is raised in civil proceedings that allegation need be established on a higher degree of probability than that which is required in ordinary civil cases. The Plaintiff's attorney Mr. Maalim Obeid has told the Court that the Plaintiff sent someone to sign complaint form at the Ward Tribunal. However, there is nothing in record to authenticate such assertion. Worse, the signature in the alleged power of attorney authorizing Maalim Abeid to be his attorney in this case and that in the chamber summons on their face do not need verification from forensic bureau for one to note that there is forgery of the Plaintiff's signature. Here I do not intend to show that I posses expertise in forensic studies. But 6 there are circumstances where on the faces of the documents shows that the signatures are different. This is one of such situations. More so, it is true there is a letter from Tanganyika Law Society (TLS) dated 22 nd November, 2017 certifying that the Plaintiff herein was granted legal assistance and Jainess Kihwelo was assigned to represent him. However, the Plaint initiating this matter was signed by both the Plaintiff and Jainess Kihwelo. The Plaintiff's signature in the Plaint on the face of it is quite different from that in the chamber summons and the two signatures are quite different from the Plaintiff's signature appended before the Ward Tribunal. Another doubts as stated by Counsel Dr. Zakayo Lukumay, the Plaintiff enjoys legal aid from TLS but the Plaint indicates that; "for the purpose of service of the suit the address to be used is Webstrong Advocates and Counsellors A Law of P.O.Box 72338'. This leaves much to be desired. The other confusing element of representation in this matter can be found at paragraph 3 of the Plaint which states: That the Plaintiff has appointed MMLIM ABEID and MOHAMED KAWA/DA MANDWANGA to represent him in this Court to pursue his claim stated herein. Attached herewith and marked KMJ is a copy of a deed of appointment {HAT/ YA UWAKILISHI MAHAKAMANJ}. 7 The above representation makes things worse as to whether the Plaintiff enjoys legal representation of TLS or of Webstrong Advocates and Counsellors A Law or of Maalim Abeid or all of them. Indeed, it is not known as to whether it is Maalim Abeid or Mohamed Kawaida Mandwanga who forged the signature of the Plaintiff in the Plaint and in the Chamber summons. Even if I may reason that Maalim Abeid is the legal representative of the Plaintiff, still Maalim Abeid could not sign by forging the Plaintiff's signature. He could append his signature in his capacity as a legal attorney and not imitate the signature of the Plaintiff. It is my findings, therefore, that in instances that are obvious. In situations that any reasonable person would be satisfied at the standard of proof that a crime has been committed, the Court should render necessary orders. I'm satisfied in this matter, the Plaintiff's signature in both this main suit and Miscellaneous Land Application No. 11 of 2018 has been forged. With such forgery, nothing can salvage both the suit and the chamber summons application. This Main suit and Miscellaneous Land Application No. 11 of 2018 are therefore dismissed with costs for been incompetent before the Court. Order accordingly. 8 Y. J. YAMBIN JUDGE 31/05/2019 Dated and delivered this 31st day of May, 2019 in the presence of Maalim Abeid (by way of special power of attorney) for the Plaintiff/Applicant, and Counsel Ndaga Emmanuel holding brief of Zakayo Lukumay Advocate for the Defendant/Respondent. JUDGE 31/05/2019 9