CIVIL APPLICATION NO 665 17 OF 2023 PAUL MUSHI VS ZAHRA NURU

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 665/17 OF 2023 PAUL MUSHI (SUING AS AN ATTORNEY OF SALIM ALLY) ... APPLICANT VERSUS ZAHRA NURU.............. ............................ ................................ RESPONDENT (Application for stay of execution of the decree of the High Court of Tanzania, (Land Division) (Maevekwa. 3.) dated 13th day of December, 2022 in Land Case No. 152 of 2007 RULING 13th & 20th September, 2024 NGWEMBE. J.A.: The applicant, Paul Mushi, suing as an attorney of Salim Ally, through the legal services of Aretas Stephen Kyara, learned advocate from Golden Law Attorneys, moved this Court for an order of stay of execution of the High Court's decree in Land Case No. 152 of 2007. The application is made under Rule 11 (3) (4) (5) (6) & (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules) by way of a notice of motion supported by the applicant's affidavit. The decree which is subject of this application is related to the dispute of ownership of a plot of land No. 800 located at Msasani Beach Dar es Salaam. The brief background of this application emanates from the claims of the respondent over the suit land which ended in the High Court Land Division, whereas the respondent sued the applicant seeking declaratory order of ownership, injunction, mesne profit and interest. The High Court (Mgeyekwa, J), in its decision, granted the sought reliefs. The applicant being aggrieved with that decision, timely lodged notice of appeal to the Court and requested for certified copies of the High Court's judgment, decree and proceedings. While the applicant was still waiting for the High Court's certified document for the purpose of lodging his appeal to the Court, the respondent initiated the execution proceedings in Execution Application No. 76 of 2023 before the High Court Land Division. The applicant indicates that, upon receipt of the notice of execution, he lodged this application for stay of execution. It is on record that the respondent prays for eviction of the applicant and demolition of the premises built in the suit land. The applicant's affidavit avers that he will suffer substantial loss if the execution of eviction and demolition of the suit house is not stayed. He also foresees the risk of being sued by the tenants in the suit premise and any other interested persons. Even the appeal will be rendered nugatory, which will cause miscarriage of justice. Equally, the applicant's affidavit offers firm undertaking to give security for the due performance of the decree. In turn, the respondent through her advocate Ashiru Hussein Lugwisa, affirmed an affidavit in reply by contending that the applicant lacks locus standi to make this application on behalf of Salim Ally without authorization recognized by law. Further he averred that there is no pending application before any court of law which is capable of being stayed. He added that the application for execution No. 76 of 2023 before the High Court was withdrawn by the respondent long time ago (02/11/2023). He thus averred that the application lacks merits. On the hearing date of this application, the applicant was represented by Mr. Aretas Stephen Kyara, learned advocate and the respondent was represented by Mr. Ashiru Lugwisa and Gasper Mwakanyemba, learned advocates. In brief submission, Mr. Kyara argued by referring to rule 11 (3), (4), (5) and (7) of the Rules and that the notice of motion has been attached with an affidavit accompanied with notice of appeal and a letter requesting for necessary document from the High Court for purpose of filing an appeal. He also submitted that the application has complied with rule 11 (7) of the Rules. Thus, he urged the Court to grant stay of execution. On the respondent, Mr. Lugwisa opposed the application by its form and contents. That, the application is misconceived contravened rule 11 (7) of the Rules because as of now there is no pending application for execution to be stayed. He added that, since the application for execution No. 76 of 2023 was withdrawn long time ago the application is overtaken by events. Moreover, he argued that the applicant lacks locus standi to institute the application on behalf or as attorney of Salim Ally without authorization from him. In rejoinder, Mr. Kyara conceded that the applicant did not attach the authorization from Salim Ally to appear and proceed with the matter on his behalf. Also, he admitted that in the absence of notification of execution or an application for execution pending in court is not practical to reckon time of 14 days prescribed in rule 11 (4) of the Rules. Upon critical review of the contents of the notice of motion, its affidavit and the arguments advanced by both counsels, I view the critical issues for determination are whether the applicant had jurisdiction to lodge this application as attorney of Mr. Salim Ally and second is whether the application is merited to be granted. In view of the two issues, the first one goes to the capacity of the applicant to lodge this application and the second issue goes to the merits of the application itself. I therefore, intend firstly to determine the capacity of the applicant himself. At the introduction of his affidavit, the applicant clearly stated as quoted hereunder: 7 Paul Mushi, suing as an attorney o f Salim Ally, m ale, adult and a Christian do hereby take oath and state the follow ing The contents of the quotation above indicates that from the beginning and in this application, the applicant Paul Mushi is stepping in the shoes of Salim Ally suing as his attorney. Rule 30 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) expressly allow a person not resident in Tanzania to appear in Court by lawfully authorised attorney. As such, Paul Mushi has indicated in the introduction of his affidavit as quoted above that he is lawfully authorised to represented Salim Ally. However, apart from the introduction, the rest of the paragraphs of his affidavit did not explain as to how he became an attorney of Salim Ally in this application and did not attach that authorization from Salim Ally to act as his attorney. Lack of that authorization, the respondent's affidavit in paragraph 2 contended as follows: "Paragraph 1 o f the affidavit is vehem ently disputed. Paul M ushi lacks the capacity/iocus to file the current application because he does not have the authority to represent Salim Ally. He has introduced him self as an attorney o f Salim Ally. But there is no p ro of anywhere in h is application o f any authorization from the said Salim A lly to act as h is attorney." It is evident, as was admitted by the learned advocate for the applicant, that the applicant did not indicate or attach any authorization from Salim Ally to act as his attorney. Nonetheless, it is settled legal position that where a person commences proceedings in a representative capacity, the instrument constituting his appointment must not only be pleaded but it must also be attached to the application. This position of law was reiterated in many decisions of the Court including the case of Aidan George 6 Nyongo v. Magesse Machenga & Others (Civil Application No. 205/01 of 2022) [2024] T7CA 147 (1 March 2024; TANZLII) and Ramadhani Omary Mbiguni (a legal representative of the late Rukia Ndaro) v. Ally Ramadhani & Another, (Civil Application No. 173/12 of 2021) [2022] TZCA 267 (12 May, 2022; TANZLII) in the latter case, though the Court was determining a case related to probate and administration, yet the principle is the same and the Court observed that: "Letters o f adm inistration being an instrum ent through which the applicant traces h is standing to commence the proceedings, was in our view an essential ingredient o f the application in whose absence the Court cannot have any factual basis to im ply the asserted representative capacity. I t is now a settled law that, where, like the instant case, a party commences proceedings in representative capacity, the instrum ent constituting the appointm ent m ust be pleaded and attached. Failure to plead and attach the instrum ent is fata l irregularity which renders the proceedings incom petent fo r want o f the necessary stan d in g" See also the case of Ally Ahmed Bauda (Administrator of the Estate of the late Amina Hossein Senyangwe) v. Raza Hussein Ladha Damji and Others (Civil Application No. 525/17 of 2016 [2020] TZCA 1763 (2 September, 2020; TAN Z LI I). Besides, it is a settled law that since the applicant claimed to have been authorised as an attorney of Salim Ally, then he had a legal duty to prove without being prompted or queried on it and would have instituted the application on behalf of Salim Ally. I think, this is the spirit behind a cherished legal principle in our jurisdiction that he who alleges must prove as stipulated in sections 110 and 111 of the Evidence Act. In this regard therefore, the absence of authentic authorisation from Salim Ally, the applicant lacked capacity to lodge this application for stay of execution correctly as Mr. Lugwisa observed. Consequently, even this Court lacks jurisdiction to entertain the application which was instituted by a person having no capacity to act on behalf of another person. Therefore, this ground alone is capable of disposing of the whole application. I find no need to venture on the merits and demerits of the application itself which will not change the already arrived conclusion. 8 In the up short, this application must fail accordingly, I struck out the application with costs payable to the respondent. DATED at DAR ES SALAAM this 19th September, 2024. P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 20th day of September, 2024 in the presence of Mr. Kyara Aretas, learned counsel for the Applicant and Mr. Ashiru Lugwisa, learned counsel for the respondent is hereby of the original. 0. H. KINOTELE: DEPUTY REGISTRAR COURT OF APPEAL 9