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    JOSEPH GIDION-The Law On Granting Power of Attorney

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    JOSEPH GIDION-The Law On Granting Power of Attorney

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    nemynemo620
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    Original Title

    JOSEPH GIDION-The Law on Granting Power of Attorney (1)

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    JOSEPH GIDION-The Law On Granting Power of Attorney

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    of 8

    IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

    IN THE SUB-REGISTRY OF MTWARA


    AT MTWARA
    LAND APPEAL NO. 7233 OF 2024
    (Originating from Land Application No. 82/2022, the decision of the District Land and
    Housing Tribunal for Mtwara at Mtwara)
    HAMISI ABDALLAH SAMORA.......... ............... APPELLANT
    VERSUS
    MWINYILAWI YUSUPH MCHOMA.... .................. RESPONDENT

    RULING

    12h & 19h June, 2024

    MPAZE, J.:

    On 12th June, 2024 when the matter came for hearing, the appellant

    raised a concern regarding the legality of Mr. Maalim Abeid Mikongo

    representing the respondent through a special power of attorney/ despite

    the respondent being present. The appellant questioned why the

    respondent should not handle the matter himself.

    In response to this issue, Mr. Maalim argued that he legally

    represented the respondent through a valid special power of attorney. He

    stated that he had represented the respondent at the District Land and

    Housing Tribunal (DL'HT) and continued to do so in this appeal, as the

    power of attorney granted him the power to prosecute even the appeal.

    1
    Mr. Maalim further added that Sections 18 and 30 of the Land

    Disputes Courts Act (LDCA), Cap 216 [R.E 2019], empower any party to

    be represented by an advocate, an attorney, or even a member of the

    household. With this insight, he prayed the court to acknowledge his

    representation as lawful in this case.

    In his brief rejoinder, the appellant, being a layman, stated that if

    the law allows such representation, then the matter should proceed with

    the hearing.

    After the submissions by both parties, I adjourned the matter to

    scrutinize the validity of the power of attorney granted to Maalim Abeid

    Mikongo.

    To satisfy myself on this issue, I first examined the records of the

    District Land and Housing Tribunal (DLHT). Within the file, I found a

    special power of attorney signed by the Donor, Mwinyi Alawi Yusuph

    Mchoma, and the Donee, Maalim Abeid Mikongo, on 1st February, 2023

    which was received by the DLHT on 27th February, 2023.

    I also examined the DLHT proceedings and noted that on 31st July,

    2023 when the matter was called for a hearing, the records indicated that

    both the applicant and respondent were present. The DLHT recorded;

    'Wadaawa wote wapo. MJibu Maombi anawakilishwa na


    Maalim Abeid akiwa na power of attorney (AH parties are

    2
    present. The respondent is represented by Maaiim Abeid
    with a power of attorney).'
    The issue raised by the appellant centred on the legality of the

    power of attorney given to Maaiim Abeid Mikongo by the respondent.

    While the appellant questioned its validity, the Donee of the power of

    attorney argued that it was genuine, citing Sections 18 and 30 of the

    LDCA.

    Indeed, Sections 18 and 30 of the LDCA permit a party to the

    proceedings to appear in person, or be represented by an advocate, any

    relative, any member of the household, or an authorized officer of a body

    corporate. The only exception is at the Ward Tribunal, where advocates

    are not allowed. I have no issue with these two sections.

    Likewise, I have no issue with acknowledging that the power of

    attorney was legally registered and followed all the required procedures

    for registration. The question, however, is whether there were any good

    reasons for the respondent to grant a power of attorney to Maaiim Abeid

    Mikongo despite it being lawfully registered.

    It should be noted that the primary purpose of a power of attorney

    is to ensure that the Donor's intentions are carried out when he is unable

    to do so himself due to medical incapacity or illness, travel or living

    abroad, old age Or any other circumstances specified by any law.

    3
    Various cases from this court and the Court of Appeal have

    explained the circumstances under which a power of attorney can be

    granted. For example, in the case of Monica Panto Mwansasu (by

    virtue of powers of Attorney from Atupaksye Kapyela

    Tughalagha) v. Esrael Hosea & Another, Land Revision No. 2 of 2021

    HC Mbeya, reported in Tanzlii, this court had this to say;

    '/Is to which are the legal conditions (genuine reasons) for


    a proper representation by power of attorney, in my settled
    view, are all reasons which may, before the eyes of the law,
    legitimately cause undue hardship for a party to appear and
    defend his case. They include, and not limited to;
    established long-standing absence from the country or
    jurisdiction of the court, and inability for prolonged serious
    illness or old age... Other factors of the like, being beyond
    the control of the party to proceedings, may form genuine
    reasons for the representation!
    Yet, in the case of Jacqueline Tibamanya v. Maximillian Ponsion,

    (PC) Civil Appeal No. 26 of 2022, HC Bukoba it was stated;

    'It is common knowledge that there must be reasons to


    grant the power ofattorney; for instance, where the grantor
    is outside the country, or that he/she has encountered a
    serious accident which has caused incapacitation or the
    grantor is seriously sick or too old, and any other reasons
    recognized by the law as the case may be'

    4
    Again, in the case of Abdul Rahim Jamal Mohamedf suing

    through his lawful Attorney Fauzia Jamal Mohamed1) v, Watumishi

    Housing Company Ltd, Civil Appeal No 54 of 2021, CAT reported in

    Tanzlii, the Court of Appeal underscored that;

    ' With respect, we agree with the learned counsel as we are


    satisfied that notwithstanding the provisions of Order III rule
    2(a) of the Civil Procedure Code (the CPC) which allows
    court representation through an attorney, that provision
    must be limited to persons outside the jurisdiction of
    the court. As alluded to earlier, both the Donor and
    Donee of the power ofattorney were within the same
    jurisdiction of the court. Accordingly, the prosecution of
    the suit by Fauzia Jama! Mohamed as an attorney of the
    appellant was highly Irregular. Any of her actions in the trial
    court was /77z<3/Z</...'[Emphasis Added]
    Reading through the special power of attorney presented in the

    DLHT, nowhere did the Donor specify the reasons for granting this special

    power of attorney to the Donee. The document simply states that he

    nominated Maalim Abeid Mikongo to;

    'Prosecute the suit, application, and appeal or seek other


    legal remedies if the need arises, also to sign, execute, and
    endorse ail documents, negotiable instruments like checks,
    etc., related to the payment of the suit, and to do all things
    which shall seem necessary or appropriate with the same

    5
    effect as if we have done, executed, or performed together
    to institute, prosecute, appeal, or seek other remedies.'
    Despite the Donor indicating in this power of attorney that he has

    given the Donee the power to carry out these duties as specified therein,

    this alone was not enough. The Donee was required, in the power of

    attorney, to explain why he is unable to carry out these tasks as specified

    therein and instead decided to grant the power of attorney to the Donee.

    Apart from stating any reasons in the power of attorney, at least on

    the day, the matter went for hearing and before the commencement of

    the hearing of this case, the DLHT would have been informed of why the

    respondent was being represented by power of attorney. However,

    despite both the applicant and the respondent being present and Mr.

    Maalim Abeid also being present, no reasons whatsoever were provided

    as to why the power of attorney was issued.

    Not only that but also, the DLHT records indicate that from the

    beginning of the proceedings until the day the decision was delivered, the

    respondent, who is the Donor of the special power of attorney, was

    present. If this is the case, then why was a power of attorney necessary?

    The cited Court of Appeal case, when determining the validity of a

    power of attorney, posed the question of whether a person who is within

    6
    the court's jurisdiction could appoint another person to prosecute a case

    in court on their behalf. The court observed that this would not be proper.

    In the case at hand, as I have stated, the records reveal that both

    the Donor and Donee live in the same area. Therefore, it was not

    appropriate for the Donor to grant a special power of attorney to the

    Donee. Besides, it was unjustified to grant the power of attorney without

    providing sufficient reasons for doing so.

    Furthermore, the DLHT proceedings reveal another issue; Mr.

    Maaiim, who was granted the power of attorney, was conducting cross-

    examinations of the applicant's witnesses and re-examinations of the

    respondent's witnesses. This conduct went far beyond the scope of his

    power and amounted to acting as an advocate, which was improper.

    It is important to note that a power of attorney does not

    automatically grant the Donee the right to represent the Donor in legal

    proceedings as an advocate. The conduct taken by Mr. Maaiim in this case

    clearly shows that he was acting like an advocate, which is improper and

    illegal.

    The purpose of having criteria for granting a power of attorney is

    not by chance; it is intended to assist a party who is incapable of attending

    the court or tribunal due to the reasons stated above, allowing them to

    grant power of attorney to represent them in specific issues. It is not

    7
    meant to appoint someone as their advocate while the Donor is present

    as in this case.

    In light of these considerations, the court invokes its revisional

    powers under Section 43 (1) (b) of the Land Dispute Courts Act, Cap 216

    R.E. 2019. Consequently, the court nullifies the entire proceedings,

    quashes the judgment, and sets aside the resultant decree issued by the

    trial court on 26th January , 2024.

    With these findings, there is no competent appeal before this court.

    Therefore, I proceed to strike out the purported appeal with costs. Anyone

    wishing to pursue this matter further may reinstate it afresh in a court or

    tribunal with competent jurisdiction to hear the case.

    Jfris^o ordered.

    Judge

    CourtT Ruling delivered in Mtwara on this 19th day of June 2024 in the

    presence of Hamis Abdallah Samora the appellant Mwinyilawi Yusuph

    Mchomba respondent and Maalim Abed,Mikongo

    Judge

    19/6/2024

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