Joel Aminiel Kiangi vs Zahira Kakere (Civil Appeal No. 140 of 1997) [1998] TZHC 2140 (2 September 1998)

'\ Il; THE HIGH COURT OF TANZANIA DAR ES SALA.Alvi DISTRICT REGISTRY AT DAR ES SALAAt 1 1 CIVIL Ai-FEAL hO .ll-t00F 1997 (from Origin3.l Civil Case io "13/1994 at Kisutu) JOT::L Af·'iINIEL KIAl·JGI • • . • • • • • • • • • AFFELLANT VERSUS ZAHIRA KAKCRE . . . . . . . . . . . . ~ . .. ~ RESIONDENT BUHSSHI 1 J: This is an appeal filed by the appellant against th<.: Ruling delivered by th= trial ma 6 istrate elated 8/7/94 in Course of hearirli_~ a lliatter filed by th2 plaintiff. Thor2 is only c)n2 ground. of appGal raised, na11iely, that the trial court erred to allow the done of a power of attorney to represent the donor who was also present in court .• In his written submission filed in court· .• Mr. Gambet representing the app2ll3.nt, attacked the position tak:::·n by the trial court , . ...,ho had sought to distinguish the ratio decidendi in the cas0, of NAiiviANI MAIRO VS NAILEJIETI K. J. ZABLON - (1980) TLR 274 - as b.:::ing based on Rule 28 of the Court of Appeal Rules. Mr Gamba submitted that it was held expressly in the Naimani case (supra) that powers of attorney in the High tourt and courts those below do not apply where the donor is present in cou~t as it happened in this co.se •· That the doree had no locus to conduct the case on behalf of the donor who was present in court •. That it was against the spirit of O 3 RR (1) and (2} Rule (b) and O 9 (1). Mr •. Gai:.ba subiliitted that it was wrorig for the ' learned trial magistrate to alJ.ow the doI18e to cor.d.ucji the case in the presence of th8 donor ah1 that the proce2J.ings were therefore rull and void. He prayed for the app.-:?aJ to be allowed an:i judgmc nt of the trial court set aside. • ••• /2 /

Th(;: Respondent objected to th<~ ground 9.f appeal. Th, r0spondcnt submitted that·the appellan.:/:1id n'Jt appeal imG,2di::1t2ly after the Ru:Lin; ani infact 1·:;:cocceded with . ' ~ ' : . : ::·; ....... ,- the h2aring o:f th, case. _Th::f "the'!'.!Jpc'a-t j'lL.t.he ·_Ruling i,; · · -· : . I 1 · · --: • . . .. - brred by limi tatcn in rtyit the appellant ought, to have lodged an peal_ aga}nst the Ruling wi thir,. 90 days o.nl not fil an 'ppcai. tifter 650 days• . In response t•J.r. Gornba ·submitted that h<'.: could not have npp2alcd becr1usc the. Ruling. is not on:: of those where c.n appeal lies to the rligh Court in terms of OXL a11d Section 74 of the Civil Procedure Code. · He subi.1i tt'·•rl_ th3.t only those orders which have the. efi'Gct · of disPo.:' 0 0- the case are appellable on the date of Ruling. It is nc,t in dispute that the appzllant :·in·· this appeal is n0t challenging th2 decision of the trL1l court. bi.it the Pfpcedure adopted by the trial court in allowing trw d·ner.:?" to ape·ar- whil2, .. ;,1.;f1_g dinor -.ras also present • · - ·, ,. , .> . ·• >• ._"i. ; •. '"· l j". • rI'he issue this court ha:s to ask itself is whethe:r the appellant '4as. prejudiced by the pr·occdu·rG adoph:,-d by the trial court .• ·. _The appllant then i-ilJ.intiff p~:e: t ,.l his cas(: anl after he had been cross exanlinad, thats \t'.1en •• • • ,!I' his counsC?l made an .ooservation challeng·rig the presence of the donee appearing i.n court.. That was not an objection properly filed but merely an observation· and he sought directions from the court. Tne trial court ,; : .. , ,.' . gave her Ruling and. did not .. bar·respon;.1ent .;f,rom.P-tterr'tng court h(;arings. 1'he · appel:1-rint -th.en .c0ntir.ed with hie·· case by calling fo,Ji:,:·· ·more wi tnes-s-Gs·. . .. ,.· Then the ·,te'fpondtnt thon defendant testified, calling two t:iore vii tnsses. As obs~rved, .the/ appellant . . . . : is not 3.ggrieved by the decision of the court. Can we th2refore sny that he was pre.judice.d by th.e procedure ad.opted by the trial court? I think n0t. The situation could have been different had the appellant complained that due to the donor's proceser..e in court, the appllant was denied a fair trial • . . . . . /3

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I. see none of such complaint here. : The procedural irregularity if there was ol'lG irrlGed did not occasion a failurE: of justice, R,t to mention the fact that what the app2llants counsel did llia not to rai.se nn objection but a mere observation seeking directions of the court. In the~ en.::1 I find that the appeal filed which laclrn merit cannot suce2d·• I dismiss the saff,e with costs·. Presence of respondent; appellant absent though qWarE• of todays date, ' •• ' . I •. •,.. t: ., JUDGE 2/9/98 ;

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