KIPATI safii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 21766 OF 2024 MOHAMED JUMA KIPATI suing under power of attorney of SULTAN JUMA KIPATI, RAMADHANI JUMA KIPATI, MAYASA JUMA KIPATI and LAILA JUMA KIPATU............................................................... ....PLAINTIFF VERSUS WASTARA JUMA KIPATI sued as administrator of estate of late JUMA KIPATI................................................................................................. 1stDEFENDANT ALLY AHMED ALLY.................. 2nd DEFENDANT MWAFRIKA GROUP LIMITED........................................................................ 3rdDEFENDANT CHARLES K. SENGO................................................................ 4th RESPONDANT THE HONOURABLE ATTORNEY GENERAL DEFEN DANT/NECESSARY PARTY........................................... 5th DEFENDANT TEMEKE MUNICIPAL COUNCIL................................................ 6th DEFENDANT RULING 30/10/& 28/11/2024 N.E. MANDIA, J This is a ruling on a preliminary objection taken at the instance of the 5th and 6th defendants, attacking the competence of the suit which is pending in this court. The plaintiff instituted a suit against the defendants, claiming for a declaration that the plaintiffs' late father is the bonafide owner of the landed property registered and held under Residential Licence No. TMK/MT0/S8 S27/13 alias MT/SB/194 located at Sabasaba Street, Mtoni kwa Azizi Ally, Mtoni Wards, Temeke Municipality Dar es Salaam. The suit has encountered an impediment, coming by way of i preliminary objection raised by the 5th and 6th defendants while filing their written statement of defence. The objection is to the effect that: - i. The suit is bad in and untenable in law for being Res Judicata contrary to the provision of section 9 of the CPC Cap 33 R.E 2019 ii. The plaint is defective for lack of locus stand. Hearing of the preliminary objection was done through written submission. The plaintiff appeared in person and was represented by Mr. Douglas Mmari, learned counsel whereas, the 5th and 6th defendants had the legal service of Ms. Frida Mollel, learned Senior State Attorney. The 1st and 2nd respondents appeared through the representation of Mr. Reginald Shirima, learned counsel while the 3rd and 4th respondents enjoyed the services of Mr. Swedi Samadani, learned counsel. In disposing the point of preliminary objection, the 1st, 2nd, 3rd and 4th respondents opted to remain silence. As the practice of the court, I had to determine the preliminary objections first before going into the merits or demerits of the suit. In her submission, Ms. Mollel decided to abandon the first point of preliminary objection and went on to submit on the second point. The learned state attorney started her submission by founding comfort on whether the point of law she raised was worth being a point of law 2 capable of disposing the suit. She referred to the case of MUKISA BISCUITS MANUFACTURING COMPANY LTD VS. WEST END DISTRIBUTORS LTD (1969) EA 696 where it was held at page 701 that: - "A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is the exercise ofjudicial discretion" In support of the objection that the plaint is defective for lack of locus standi, the learned state attorney submitted that a person may file a suit under a special power of attorney when the person granting the power (the principal) authorizes the person receiving the power (the attorney in fact) to act on their behalf in specific legal matters. That, power of attorney is governed by Order III rule 2(a) of the Civil Procedure Code [Cap 33 R.E 2019] which provides that recognized agents of parties by whom appearance, application and act may be made or done as long as those people holds power of attorney to do such acts on behalf of such parties. That a recognized agent may appear and make application or conduct proceedings through a power of attorney. 3 Ms. Mollel submitted further that the plaintiffs suit is defective due to lack of locus standi as the purported power of attorney is fatally defective as it does not empower the plaintiff to institute the instant suit. That the plaintiff, purports to act under a power of attorney representing four individuals to wit: SULTAN JUMA KIPATI, RAMADHANI JUMA KIPATI, MAYASA JUMA KIPATI and LAILA JUMA KIPATU while the power of attorney submitted is expressly limited to Land Application No. 232 of 2019, filed in the Land and Housing Tribunal for Temeke. The learned state attorney was of the view that the said power of attorney does not extend to the instant suit because it lacks the proper authorization extending to the present case. Therefore, the plaintiff has no locus standi to initiate these proceedings, rendering the plaint defective and the suit incompetent before this court. Ms. Mollel contended that locus standi, requires that a party initiating a suit must demonstrate a legal right or interest in the subject matter to bring a claim. She cited the case of GODBLESS JONATHAN LEMA VS. MUSAHAMIS MACHINA & OTHERS, Civil Appeal No. 47 of 2012, CAT, to bolster the argument that locus standi is a foundation to the initiation of any legal action. She contended further that the 4 plaintiffs standing was exclusively based on a power of attorney that was limited to Land Application No. 232 of 2019 in the Land and Housing Tribunal for Temeke. That there is no authority under the said special power of attorney authorizing the plaintiff to represent the parties in the present suit hence, the plaintiff is incapable of representing the interests of the people named in the power of attorney in the instant suit. She referred in the case of RAYA SALUM MOHAMED (BY VIRTUE OF SPECIAL POWER OF ATTORNEY FROM SHERDEL GHULAM REND) VS. REGISTRED TRUSTEES OF MASJID SHEIKH ALBANI, Civil Application No. 340/18 of 2019, CAT at Dar es Salaam (unreported) in which the court stated that: - "The applicant has no locus standi to lodge and prosecute the present application on the purported 'specialpower of attorney'. Thus, the application is incompetent" The learned state attorney also referred in this case of NAJMA HASSANALI KAN JI (SUING THROUGH MOHAMED HASSANALI KANJI, BY POWER OF ATTORNEY) VS. RAMADHANI HAMIS NTUNZWE, Land Case No.93 of 2016 at page 10, where the court held that: - 5 "In the circumstance that the defects in respect of power of attorney are fundamental, it renders the plaintiff to have no locus standi to lodge the present application on behalf of Mohamed Hassanaii Kanji, hence the application is declared incompetent and therefore, such a case should be struck out". Ms. Mollel submitted further that it is clear from her submission that the plaintiff lacks locus standi as the special power of attorney issued does not authorize him to act in the instant suit and hence, the defect renders the plaint incompetent and incapable of standing before this court. That, the appropriate remedy for such a defect is to strike out the suit. She prayed that the objection be upheld and the suit be strike out with costs. Rebutting the submission, Mr. Mmari, learned counsel for the plaintiff admitted that a party to a case may appear and make application or conduct application through an agent appointed by a power of attorney. Mr. Mmari contended that the instant suit has its origins in the Land and Housing Tribunal for Temeke of which the registered power of attorney vested powers to the plaintiff to sue on behalf of other children or relative of the plaintiff. That, the power of attorney granted the power to the plaintiff to any other legal applications raised other than the said 6 Application No. 232 of 2019. That the wording of the said power of attorney attached as annex F to the plaint are as follows: - "To all whom under these present shall come, we the undersigned SULTAN JUMA KIPATI, RAMADHANI JUMA KIPATI, MAYASA JUMA KIPA TI and LAILA JUMA KIPA TI (hereinafter referred as Applicant in Land Application No. 232/2019 at Land and Housing Tribunal for Temake) of P.O Box 50038, Dar es salaam Do hereby appoint, constitute and nominate one, MOHAMED JUMA KIPATI of P.O Box 50038 Dar es Salaam (hereinafter referred as the " the Attorney" to be our lawfully attorney with full power and authority on our behalf to execute and do all such deeds and things which shall deem necessary or appropriate with the same effects as if we have done, execute or performed it by us in all matters concern Land Application No. 232/2022 at LAND AND HOUSING TRIBUNAL FOR TEMEKE on matters pertaining to defending the said application or any Legal Application may raise on our behalf", [emphasize added] Mr. Mmari contended further that from the wording of the power of attorney, it gives the locus standi to the plaintiff to defend or sue on any legal application that may raise on behalf of his relatives. He was of the view that the plaint is not defective and the plaintiff has locus standi to sue because the present suit resulted from the withdraw of the plaintiff's application at Land and Housing Tribunal for Temeke as an option of shifting the matter to High Court Land Division due to fact that the case 7 required the joining of Attorney General. That as to whether the instant suit is an application as contemplated in the said power of attorney, the counsel submitted and prayed for the court to look on the intention of the plaintiff and his relatives as they meant any legal matters that may raise inclusive of the present suit. He invoked the concept of overriding objective principal as enshrined under section 3A of the Civil Procedure Code (supra). Also the counsel referred in the case of Yakobo Maqoiqa Gichere v. Peninah Yusuph (Civil Appeal No. 55 of 2017) CAT (unreported). That, since the power of attorney provided cater for any other legal applications that may arise, Mr. Mmari prayed for the court to overrule the preliminary objection as is misconceived and unfounded. There was no rejoinder filed as previously ordered by the court. I have dispassionately considered the submission by the learned counsels for both the plaintiff and the 5th and 6th respondents in response to the preliminary point of objection and, the question for determination at this point is whether the plaintiff's special power of attorney extends to the present suit. At the outset, it is a settled principle of law that power of attorney is an instrument in writing whereby one person called the donor gives another person called an attorney in fact authority to act on his behalf and in his name. It may be issued to a recognized agent in order to represent the donor. Black's Law Dictionary (9th Edition) define power of attorney as an instrument granting someone authority to act as agent or attorney-in-fact for the grantor. Similarly, special power of attorney may literally be defined as a legal document outlining the scope of authority given to an attorney in fact by the principal. Under the special power of attorney, an agent is given limited powers to act on behalf of the principal to make specific decisions. The basis for the preliminary objection in the matter at hand is that the plaintiff purports to act under a special power of attorney that is expressly limited to Land Application No. 232 of 2019, filed in the Land and Housing Tribunal for Temeke hence, has no locus standi because the power granted does not extend to proceedings in Land Case No. 21766 of 2024 filed in this court. After examining the special power of attorney attached to the plaint, I have noted two things. One, that it was granted to one MUHAMED JUMA KIPATI who I am not sure if is the same with the plaintiff MOHAMED JUMA KIPATI, and two, the special power of attorney was limited to Land Application No. 232 of 2019 at the Land and Housing Tribunal for Temeke. 9 I have also noted the following words to wit: "on matters pertaining to defending the said application or any legal application may raise on our behalf. In my names and on our behalf to take charge and deal with all matters on the above mentioned matter including adducing evidence." In my view the wording of this special power of attorney refers to any legal application and all matters on the said land application including adducing evidence in the Land and Housing Tribunal for Temeke. In other words, the special power of attorney does not give locus standi to the plaintiff to go beyond the parameters of the authority issued in it. It is my considered view that the institution of the present suit required another power of attorney in order to give the plaintiff the required locus standi to act on behalf of the others. Again, on the first observation that the name that appears on the special power of attorney does not match with that of the plaintiff, although it was not raised, but I find it to be of importance and which need to be looked at in order to be certain as to who was exactly granted with the power of attorney. Likewise, on the prayer that this court may invoke the overriding objective principle in order to ensure fair and just proceedings, in my view it does not hold water looking at the nature of the present suit. Locus 10 standi, in my view, is not a technicality issue but a substantive one. In THE REGISTERED TRUSTEE OF SOS CHILDREN'S VILLAGES TANZANIA VS. IGENGE CHARLES AND 9 OTHERS CIVIL APPLICATION NO. 426/08 OF 2018 it was held that locus standi is a principle which is governed by common law according to which, a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with. With this holding it is clear that locus standi is a substantive issue and should not just be ignored. It is trite law that overriding objective principle cannot be applied blindly and in total disregard of the mandatory provision of the law. (see ALEX MSAMA MWITA VS. EMMANUEL NASUNZWA KITUNDU & ANOTHER Civil Application No.538 of 2020[2022] TZCA 649 (20 October, 20222). Having said so, and without prejudice to my observation, i hereby sustain the point of preliminary objection that the plaintiff has no locus standi to file the instant suit. The suit is hereby struck out. I make no order as to costs. It is so ordered.