20161118 TZHC Dar es Salaam

.{ ,( , IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM LAND CASE NO .99 OF 2011 SAFIA SHARIF ALWI (Asiholder of Power of Attorney of SHARIF ALWl) •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• PLAINTIFF VERSUS - 1 1. MUSNE SHARIF ALWI }·····························DEFENDANTS 2. FATMA SHARIF ALWI · RU LI NG 11th & 18th Nov., 2016 DYANSOBERA, J: This ruling is on an oral application by Mr. Mtatiro, learned counsel for the defendants that the court orders that this suit abates on account of the death of the plaintiff. The plaintiff Sharif Alwi, on 22 nd November, 2011 instituted land case No. 99 of 2011 against the two defendants above claiming the following reliefs:- !. A declaration that the source of the good treatment to Bibi Bora was the said Sharif Alwi Hassan, the husband and bread earner 2. A declaration that the transfer of the suit house from Easha Sale Daid to Muzni and Fatma Sharif Alwi Hassn was fraudulent and contrary to tenants in Islam. The transfer is null and void. 3. A order to the Registrar of Titles that the suit house should be immediately devided as follows; a. SHARIF ALWI HASSAN ½ b. MUZNI SHARIF A. HASSAN ¼ c. FATMA SHARIF A. HASSAN ¼ 4. Costs 5. Any other and further relief as the Court may deem just In their joint written statement of defence, the two defendants resisted the claims. The plaintiff who sued under the power of attorney given to Safia Sharif Alwi was represented by Mr. El- Maamry, learned advocate while the defendants are being advocated for by Mr. Juma Mtatiro, learned counsel. On 18 th November, 2015 when the matter came for hearing before the Mediator Judge, Mr. El- Maamry informed the court that the plaintiff died on 15th June, 2015. Learned counsel, therefore, prayed for adjournment so that he might consult his daughter in respect of the way forward. The court granted the adjournment order and remitted the record to the trial Judge for necessary orders. The matter then underwent vanous adjournments and was ultimately scheduled to 10 th November, 2016. On that date, i.e. 10 th November, 2016 both parties were duly represented. While Mr. El-Maamry stood for the plaintiff, Mr. Juma Mtatiro represented the defendants. Mr. El-Maamry informed this court that he had an emergent commitment to make that day and prayed the matter to come the following day contending that he had not even a case file. Mr. Mtatiro objected to the request and gave his reasons. He said, first, that in this case the plaintiff Safia Sharif Alwi is suing under a power of attorney. The donor of the power of attorney Sharif Alwi died since June, 2015 which means that the power of attorney automatically comes to an end to operate the suit. Second, that since the death of Sharifa Alwi who is also the father of the defendants there is no any appointment of the personal legal representative/ administrator and there is no even pending application in any court of law for letters of administration. According to learned counsel for the defendants, it is now more than a year and by virtue of the Law of Limitation Act, Cap. 89 R.E. 2002, section 3 of the Schedule Part III item 16 a legal personal representative was supposed to be appointed, on application, within 90 days of the date of the death. Further that by virtue of O.XXII rule 3 (1) and (2) (1) of the Civil Procedure Code, Cap. 33 R.E.2002, the suit should abate against him and the defendants be awarded costs. Responding to Mr. Mtatiro's submissions, Mr. El-Maamry was of the view that he had to get time to read the books so that became conversant with legal provisions. Admitting that some sections are not difficult to reply, he asked for adjournment. This court, aware that learned counsel for the plaintiff was legally entitled to be heard, adjourned the matter to 11.11.2016. ./ On 11 th November, 2016 when this matter was called for hearing on what Mr. El-Maamry had to reply to what Mr. Mtatiro had submitted, Mr. El-Maamry was nowhere to be seen. The matter was therefore set for ruling today. I have considered the submissions made by Mr. Mtatiro in support of his prayer that the suit abates. I take that his submissions have not been controverted. There is no dispute that the plaintiff instituted the suit through power of attorney given to her daughter Safia Sharif. The fact that the plaintiff passed away on 15th day of June, 2015. No appointed legal representative is available nor is there any petition in any court of law for such appointment. I have no doubt that the power of attorney conferred upon Safia Sharif Alwi to prosecute this suit has come to an end. Besides, the time to make an application for appointment of the personal legal representative has lapsed. Death is one of the grounds for abatement of suits but I am aware that no abatement by death if the right to sue survives. Order XXII rule 1 of Civil Procedure Code, Cap. 33 R.E.2002 clearly stipulates that: The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. As stated above, the suit has taken long it having been filed way back on 22 nd November, 2011. The plaintiff is dead. There is no personal legal representative. The time for application of the personal legal representative has elapsed. Mr. El-Maamry who granted time within which to consult the donee of the power of attorney has done nothing in furtherance of the mat\ than a year has passed. He has even failed to come \,. controvert or otherwise, the prayer by defendants,}\ counsel that the suit should abate. As the law, particularly O.XX:11 rule 3 (1) and (2) (1) of the t., Procedure Code, Cap. 33 R.E.2002 read together with Item 1\ Part III of the Schedule and section 3 of the Law of Limitation Act, Cap. 89 R.E.2002, is clear, this court has no option but to accede to Mr. Mtatiro's request that the suit abates. Accordingly, the suit in Land Case No. 99 of 2011 abates. The defendants are awarded costs. W.P. Dyansobera Judge 18.11.2016 Ruling delivered at Dar es Salaam this 18th November, 2016 in the presence of Mr. Juma Mtatiro, learned counsel for the defendants but in the absence of Mr. El-Maamry, learned counsel for the plaintiff. W. Judge 18.11.2016