pushpaben ambalal patel aka mrs pushpa vishno patel suing through her appointment attorney rev dunstan selvin maboye haule vs tom morio 2012 tzhccomd 38 24 april 2012.

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT ARUSHA COMMERCIAL CASE NO. 6 OF 2010 PUSHPABEN AMBALAL PATEL a.k.a MRS. PUSHPA VISHNU PATEL suing through her duly appointed Attorney REV. DUNSTAN SELWIN MABOYA HAULE........................ PLAINTIFF VERSUS TOM MORIO.................................................................. DEFENDANT Date of the last Order: 16/12/2011 Date of final submissions: 27/01/2012 Date of Ruling: 24/04/2012 RULING MAKARAMBAr J .: In the written statement of defence filed in this Court on the 24th day of September, 2010, the Defendant raised a Preliminary Objection on two points of law as follows: (i) That this Honourable Court does not have the jurisdiction to determine the matter as provided for in the High Court Registries (Amendment) Rules 1999 R.E 2002. Alternatively Page 1 of 17 (ii) That the su it is incompetent for want o f a valid instrument on the part o f Rev. Dustan S e i win Maboya Haute to institute the suit. Mr. NKOKA learned Counsel for the Plaintiff and Mr. OMARY for the Defendant argued the preliminary objection, which by their consent was disposed of by way of written submissions and hence this ruling. The facts of this case as are relevant briefly are that on the 8th day of January 2008, the Plaintiff entered into a Sale Agreement with the Defendant for the sale of landed property situated on Plot N o .l Block "B" Area "F" within the Arusha Municipality, held under a Certificate of Title Number 1746, Land Office Number 44654. Under the said Agreement, the Defendant imperatively was required to pay the Plaintiff the amount of USD 450,000 (Say Four Hundred and Fifty Thousand United States of America Dollars) only as consideration for the purchase of the said landed property. Out of this amount a sum of USD 20,000.00 (Say United States Dollars Twenty Thousand was paid on execution of the Sale Agreement. The remaining balance of 430,000 (Say United States Dollars Four Hundred and Thirty Thousand) was mandatorily required to have been paid by the Defendant to the Plaintiff in two year's time of the date of execution of the said Sale Agreement. By the 8th day of January, 2010, the Defendant had paid the Plaintiff USD 150,000 (Say United States Dollars One Hundred and Fifty Thousand) only. The amount of USD 300,000 (Say United States Dollars Three Hundred Thousand is still unpaid to the date of filling this suit. Page 2 of 17 The Defendant has reneged on his consensual agreement with the Plaintiff as to payment of the entire remaining balance of USD 430,000 (Say United States Dollars Four Hundred and Thirty Thousand in two year's time of the date of execution of the said Sale Agreement, and this constitutes a breach of a fundamental term of the Sale Agreement entitling the Plaintiff to, inter alia, the right to rescind the contract upon restitution to the Defendant of USD 150,000) (Say United States Dollars One Hundred and Fifty Thousand) by the Plaintiff, being the amount the Plaintiff had received as at the date of essence of payment under the Sale Agreement, thereby the parties are to be restored to the status quo ante. In the suit which gave rise to the preliminary objection, the Plaintiff prayed for judgment and decree against the Defendant for the following reliefs: (i) A finding o f fact that by reason o f the matters averred under paragraphs 6 o f the plaint, the Plaintiff is entitled to the right to rescission o f the contract dated January, 2008 entered into with the Defendant upon restitution to the latter o f United States Dollars One Hundred and Fifty Thousand (USD 150,000.00) thereby restoring the parties hereto to their status quo ante; and (ii) That, alternatively, by reason o f the matters averred under paragraph 7 o f the Plaint, the Plaintiff is entitled to a total repudiation o f the contract dated January, 2008 entered into Page 3 of 17 with the Defendant, by an order o f this Honourable Court declaring the said contract null and void. Mr. Omary submits that this is a land suit in terms of section 167 of the Land Act, Cap. 113 R.E 2002 and section 3 and 37 of the Courts (Land Disputes Settlement) Act Cap.216, which is triable by the High Court Ordinary Registry and not the Commercial Division of the High Court. Mr. Omary further submits that the reliefs sought by the Plaintiff in the Plaint and the contract sought to be rescinded and repudiated is a contract for the sale of landed property at Plot No.l Block "B" Area "F" within the City of Arusha. Mr. Omary cites the decision of the High Court of Tanzania Commercial Division in Commercial Case No. 1/2006 CHARLES AKWILINI MAKOI VERSUS GAPOIL TANZANIA LTD (unreported), which dealt with a dispute arising from breach of contract for which damages for rescission of the contract of fuel supply was at issue. In that case, the contract the subject of rescission was formed through a lease and fuel supply agreement and the Court held as follows: "I reject that suggestion and hold that there was a lease agreement between the parties by which the Defendants became a lessee o f the petrol station erected on the Plaintiff's premises. I therefore hold that there was a land lord-tenant relationship between the parties. The supply o f fuel is in my view, subsidiary to the lease agreement." The Court then went on to hold as follows: Page 4 of 17 "Z do n o t agree with Mr. Oo/a because under the Land Disputes Courts A ct (S.37) the High Court has more powers to deal with any m atter on land other than recovery o f possession. Under S.167 o f the Land A ct the Courts are vested with exclusive jurisdiction........ to hear and determine a ll manner o f disputes, actions, and proceedings concerning land. So recovering possession is only one o f the items, b u t n o t the only one on which the land courts have exclusive jurisdiction." The Court then concluded thus: "For the above reasons, I am satisfied th a t this is basically a land dispute and n o t purely a fuel supply contract. A t most, i t is a mixed land and commercial dispute, and I agree with Mr. Baravuga that on the analogy o f the KLM case even i f the court was to split the claim there is a real danger o f adjudicating on the terms o f the /ease agreement, o f which admittedly, this Court has no jurisdiction. On the other hand, i t is safer i f the suit was lodged in the land Division o f the High Court, where the court's jurisdiction is wider in terms o f section 37(b) and (e) o f the Land Disputes Court A ct." In response, Mr. Nkoka submits that the dispute arose from breach of contract of Sale Agreement and hence makes it a case of breach of contract and not a dispute on ownership of land. Mr. Nkoka submits further that the Plaintiff does not claim ownership of the landed property either Page 5 of 17 partly or totally, but claims for breach of the Sale Agreement in which the Defendant did not pay to the Plaintiff the money agreed to in the contract, which makes this Court to have jurisdiction to entertain the matter. Mr. Nkoka submits further that the High Court Commercial Division and the General Registry of the High Court are vested with jurisdiction to entertain land disputes under section 167 of the Land Act, Cap.113 R.E. 2002 as amended by Act No.2 of 2010, and section 3(1) and (2) and section 3 and 37 of the Courts (Land Disputes Courts Settlement) Act. Mr. Nkoka distinguishes the facts in the case of CHARLES AKWILINI MAKOI V. GAP OIL TANZANIA LIMITED, Commercial Case No.1/2006 (unreported) which shows that although there was a breach of contract, but primarily there was a lease agreement which made the matter in that case to be a land settlement dispute. Mr. Nkoka submits further that in the instant suit, the cause of action is purely a breach of Sale Agreement. The relationship of the parties to the Sale Agreement was that of a "vendor" and "purchaser." The nature of the Sale Agreement was a contingent sale agreement. Mr. Nkoka submits further that even the remedies sought by the Plaintiff in this suit are different from a land dispute settlement since they are based on a frustrated contract. In rejoinder, Mr. Omary submits that section 167(1) of the Land Act and section 37(e) of the Courts (Land Dispute Courts Settlement) Act confer exclusive jurisdiction to Land Courts to determine all matters pertaining to land. Mr. Omary maintains his position as to the case of CHARLES AKWILINE MAKOI V. GAPOIL (T) LTD, Commercial Case No.1/2006 where it was stated that the High Court jurisdiction is not Page 6 of 17 limited to claim for possession or recovery o f land, the jurisdiction is over all actions concern land. The present matter raises yet again contest over the jurisdiction of this Court. I wish to point out here that jurisdiction is a question of law, which is why the law enjoins a court upon noticing a question relating to jurisdiction, to raise it suo motu and invite the parties to address it at any stage in the suit and even on appeal. The Commercial Court is a Division of the High Court of Tanzania vested with jurisdiction to determine all matters which are considered to be of "commercial significance." The jurisdiction of this Court is well established in the High Court Registry (Amended) Rules, G.N. 141 of 2009 as amended by G.N. No.96 of 2005. Rule 2(a) of the High Court Registries Rules. These Rules define what a commercial case is. The Rule also contains a list of commercial cases triable by this Court. The "commercial list" as Hon. Mruma, J. observed in Commercial Case No.22 of 2010 between GF TRUCKS & COMPANY LTD VERSUS METRO STEEL MILLS LTD is not exhaustive. In that case His Lordship Mr. Mruma, J. observed further that: "A presiding judge has discretion to decide whether or not a particular case falls under the definition and he can apparently add other matters. However, the Court cautioned that this discretion must be exercised judicially. The Court went on to observe that because the Commercial Division o f the High Court does not have exclusive jurisdiction to hear and determine commercial cases this division Page 7 of 17 must exercise utmost care in enlarging the categories o f commercial cases." His Lordship went on to state as follows: "In order for a case to be able to fall under the categories o f a commercial case in terms o f GN 141 o f 1999 (as amended) and/or within the ambit o f the phrase "including but not limited to "or categorized as such, the cause o f action thereof must arise out o f commercial or business activities or arising in the cause o f business or commercial relationship o f the Plaintiff and that other person." In NATIONAL OIL TANZANIA LTD V. THE NATIONAL BANK OF COMMERCE LTD AND STANDARD CHARTERED BANK (T) LTD, Commercial Case No. 120 o f 2005 (unreported) Hon. Masati, J. as he then was held that: "From the definition under rule 2 o f the high court registries (amendment) rules o f 1999, it is dear that the list o f commercial cases is not exhaustive, which is to say, not limited to those enumerated in paragraphs (a) to (k) under the definition o f that term, it is open to this court to accept any cases which in its view could be classified as ejusdem generis to those shown in the list, being guided by test that it must be one of "commercial significance... "the definition o f "a commercial case"are wide enough Page 8 of 17 to accommodate any liabilities be they tortuous, o r contractual, arising o ut o f a contract relationship between the parties, provided, o f course, they are o f a commercial significance." I wish also to quote the words of Hon. Mruma, J. in M isc. Cause N o .l Of 2008 betw een G .K .H O TELS & R ESO RTS (PTY) A N D BO A RD OF TR U S TEES O F TH E LO CA L A U TH O R ITIES PEN SIO N FU N D where his Lordship added that for a case to qualify to be a commercial case within the said GN, it must at least pass/have the following tests: I. In the firs t place, i t m ust be a civil case. I don't need to define what is a civil case here, b u t suffice to say that a criminal case o f case o f commercial significance (th a t is involving say fraud in buying and selling o f goods and/or services) cannot be a commercial cases within the am bit o f GN No. 96 o f 2005. II. That civil case m ust be o f commercial significance, in other words that case m ust have connection with buying and selling o f goods and/or services. This excludes cases like matrimonial causes (which are civil in nature b u t are n o t commercial) from categories o f commercial cases. As a matter of general principle, although parties in their pleadings must state facts as relating to cause of action, the prayers sought and facts as conferring jurisdiction on the court in which the suit is being lodged, they Page 9 of 17 cannot confer jurisdiction on the court. As we saw earlier in this ruling, in so far as commercial cases are concerned, the presiding judge has discretion to decide whether or not this Court has jurisdiction to entertain the matter before it as a commercial case. In the present case, the cause of action is the alleged breach of contract by the Defendant of the Sale Agreement in that the Defendant has not caused payments to be made to the Plaintiff as consideration for the sale of landed property as could be gathered from paragraph 4 and 5 of the Plaint. Among the reliefs sought by the Plaintiff is rescission o f the contract dated the & January, 2008 entered into with the Defendant upon restitution to the latter o f USD 150,000 (Say United States Dollars One Hundred and Fifty Thousand thereby restoring the parties hereto to their status quo ante, or alternatively, repudiation o f the contract dated the January, 2008 entered into with the Defendant, by an order o f this Honourable Court declaring the said contract null and void. The cause of action in the present suit and the prayers sought are neither rooted on land nor do they depend on land ownership. I am at one with Mr. Nkoka on his regard. In my considered view the present dispute is not a land dispute. In terms of paragraphs 4, 5 and 6 of the Plaint, the cause of action could be traced on the breach of contract by the Defendant as alleged by the Plaintiff. The crux of the matter is that the Defendant has failed and/or neglected to effect payments to the Plaintiff as consideration for the purchase of the said landed property as agreed in the Sale Agreement. Page 10 of 17 In the event and for the foregoing reasons, I shall accordingly dismiss the first point of preliminary objection that this Court lacks jurisdiction to entertain the present suit. I now turn to consider the second preliminary objection the Defendant raised in the alternative, that the suit is incompetent for want o f a valid instrument on the part o f Rev. Dustan Seiwin Maboya Haute to institute the suit. Mr. Omary submits that the suit has been irregularly filed by one REV. DUSTAN SELWIN MABOYA HAULE since the said Reverend did not have a valid instrument allowing him to institute a court action. Mr. Omary quotes paragraph 1 of the Plaint thus: 1. THAT, the Plaintiff, is an adult female person o f Asian origin resident at Arusha suing through her duty appointed Attorney Rev. Dustan Seiwin Maboya Haute by virtue o f legal instrument in the name and style o f a Special Power o f Attorney, a copy thereof, thereto annexed marked "PUSHPABEN-ONE." Mr. Omary argues that the said SPECIAL POWER OF ATTORNEY only donates general authority for the donee to take care of all the donor's properties in Arusha. The said Special Power of Attorney does not even remotely authorize the donee to institute a law suit and enter appearance in a court of law on behalf of the donor, Mr. Omary further submits. Mr. Omary further submits that a person holding Powers of Attorney to sue or Page 11 of 17 be sued in Court as recognized agent is governed under Order III, Rule 2(a) of the Civil Procedure Code, Cap. 33 R.E. 2002 which provides that: 2. The recognized agents o f parties by whom such appearances, applications and acts may be made or done are:- (a) Persons holding powers-of-attorney, authorizing them to make appearances or applications and to do such acts on behalf o f such parties." Mr. Omary also cites the provisions of Rule 6(1) and (2) of Order III of the Civil Procedure Code, which provide that: 6(1) Besides the recognized agents described in rule 2 any person residing within the jurisdiction o f the Court may be appointed an agent to accept service o f process. (2) Such appointment may be special or general and shall be made by an instrument in writing signed by the principal, and such instrument or, i f the appointment is general, a certified copy thereof shall be filed in Court." Mr. Omary further submits that a holder of Power of Attorney must be specifically appointed/authorized by the donor to make and do such appearance, applications and acts on behalf of the donor. Mr. Omary cites Sakar's commentaries on the Indian Code of Civil Procedure, Act Page 12 of 17 Number V, 9th Edition, Wadhwa & Company, Nagpur, 2000 Volume 1 at page 891 thus: "The document appointing an agent would be construed strictly and the agent would only have such powers as a conferred expressly or by implications. Whereas the functions and duties o f an advocate are not those o f an agent sipiiciter, and his authority cannot be confined to specific powers." Mr. Omary cites the decision in the case of K. RAM AC HAND RAN V. BAGAWATHI C.R.P. (NDP) No. 2472, 2473, 2474 and 2475/2009 (a copy of which he availed to this Court) where the Court dismissed an application for having been filed without leave of the court for the petitioner to prosecute the matter under Power of Attorney. The Petitioner ought to have moved an application to grant leave. Mr. Omary concludes that Rev. Dustan Selwin Maboya Haule who is suing on behalf of Pushpaben Patel is acting without any authority, be it expressly or by implication as such this case was irregularly instituted for want of authority and should be struck out with costs. In response Mr. Nkoka submits that the interpretation given by Mr. Omary on the Special Power of Attorney is so narrow. Mr. Nkoka submits further that the Special Power of Attorney gives special powers to the Donee to act and take care of the properties of the donor on her behalf. That means whatever shall happen to the properties, the appointed person with powers of attorney shall act on those properties just like the owner Page 13 of 17 which includes suing on the properties. The appointed attorney need not to have another Power of Attorney authorizing him to sell or sue on the properties on behalf of the Donor unless the Donor could have withdrawn or rescinded her authority from the instrument, Mr. Nkoka concludes. The representation by the party holding the Power of Attorney, as rightly submitted by Mr. Omary, is governed by Order III, Rule 2(a) of the Civil Procedure Code Cap. 33 R.E 2002 Sakar in his commentary at page 1234 which was quoted by Hon Werema, J. as he then was, in Misc. Commercial Court Cause No. 17 of 2007 between AHMED IBRAHIM BORA AND MEHBOOB ABDULKARIM SHIVJI & ZAHID MUNEER, the word "Power of Attorney" is defined as meaning: "A document executed by a person in favour o f another empowering the tatter to do any lawful acts for and on behalf o f the donor... "(the emphasis is o f this Court). As a matter of general practice, the "power of attorney" is normally used to represent persons who are absent from the local jurisdiction of the Court, or with physical disability. This was restated by Hon. Masati, J. as he then was in Commercial Case No.52 of 2007 between HAMIDU NDALAHWA MAGESHA MANDAGANI V. RAYNOLD MSANGI & REDA FARM (unreported) and by Hon. Dr. Bwana, J. as he then was in Commercial Case No.217 of 2002 between THE NATIONAL BANK OF COMMERCE LTD AND CYPRIAN TWEVE & 2 OTHERS (unreported). The "power of attorney" may be special/limited to one Page 14 of 17 specified act or type of act or it may be general. All depends on the wish of the donor. It is always open to the donor of a power of attorney to specify in detail the powers conferred on the attorney. A donor can authorize the attorney to enter into one transaction or can be so wide as to permit the attorney to do anything the donor could have done. These principles were restated in the persuasive case of MIDLAND BANK LTD V, RECKITT [1933] AC 1. In the instant case, the Plaintiff is being represented by REV. DUNSTAN SELWIN MABOYA HAULE who holds a Special Power of Attorney, the contents of which are as follows: "SPECIAL POWERS OF A TTORNEY" "I, MRS. PUSHPA VISHNU PATEL o f Postal Office Box Number 267 Arusha Tanzania, doth hereby ordain, nominate and appoint REV. DUNSTAN SELWIN MABOYA HAULE o f Postal Office Box Number 15307 Arusha to be my lawful ATTORNEY and to act on my behalf to take care o f all my properties situated/located at Arusha Tanzania. AND I, MRS. PUSHPA VISHNU PATEL doth hereby agree to confirm and ratify all whatever my said ATTORNEY shall lawfully do or cause to be done by virtue o f these presents..." Emanating from the above, clearly the Power of Attorney conferred on the donee by the Special Power of Attorney seems to me to be general as to vest powers on REV. DUNSTAN SELWIN MABOYA HAULE "to take care o f all o f the Plaintiff's properties situated at Arusha. "In addition, the donor of the power of attorney, MRS. PUSHPA VISHINU Page 15 of 17 PATEL has agreed to confirm and ratify "a// whatever" the donee, Rev. Dustan Haule, "shall lawfully do or cause to be done"by virtue of the power of attorney in respect of "all the properties of the donor situated/located at Arusha, Tanzania." On the basis of the Special Power of Attorney, the donee, REV. DUNSTAN SELWIN MABOYA HAULE is therefore authorized by the donor, to do all what is considered to be lawful in respect of all of the properties of the Plaintiff at Arusha. This general power in my view would be construed to mean and include also the institution of the present suit, which powers fall within the ambit of the general power of attorney "to take care of all of the Plaintiff's properties situated at Arusha" and to "lawfully do or cause to be done" in relation to all the properties of the donor situated/located at Arusha, Tanzania, which the donor has expressly and unambiguously undertaken to confirm and ratify. In the event and for the foregoing reasons, I shall dismiss the second point of law the Defendant raised in the alternative that the suit is incompetent for want o f a valid instrument on the part o f Rev. Dustan Seiwin Maboya Haute to institute the suit. This effectively brings to rest all the two points of preliminary objection raised by the Defendant in the Written Statement of Defence, which are hereby dismissed with costs, to be in the cause. It is accordingly ordered. R.V. MAKARAMBA JUDGE 24/04/2012 Page 16 of 17 Ruling delivered this 24th day of April, 2012 in the presence of M/S Hokororo, Advocate for the Plaintiff and Mr. Omary, Advocate for the Defendant. JUDGE 24/04/2012 3,910 Words Page 17 of 17