Omar v Ex-Officio Agent (Civil Appeal No. 26 of 1939) [1942] EACA 45 (1 January 1942)

## APPELLATE CIVIL

BEFORE THACKER, J. (with Chief Kathi as an assessor)

## ALI BIN OMAR BIN OMAR. Appellant (Original Plaintiff)

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## EX-OFFICIO AGENT, wasi of the Estate of HAFSA BINTI OMAR. Respondent. (Original Defendant)

Civil Appeal No. 26 of 1939

Action on Promissory Note—Wakala or Power of Attorney— Not stamped— Registration unnecessary.

The facts sufficiently appear from the Ruling and Judgment.

Held (27-8-42).—That a wakala or special power of attorney to sue on behalf of the grantor • need not be registered, before being admitted in evidence. It is sufficient if it is properly stamped.

Anneal allowed with costs.

Neither the appellant nor respondent appeared at the hearing of the appeal.

RULING.—This Court cannot go into the merits of this appeal until and unless the document called the wakala is stamped and any penalty demanded by the Inland Revenue paid. It was produced in the lower Court and appears to be a special power of attorney to recover on behalf of the plaintiff, given by him to his brother Abubaker bin Omar.

The plaintiff's case in the lower Court was dismissed *inter alia* on the ground that this wakala was not registered. The Magistrate ought to have impounded the document and given the plaintiff an opportunity of having it stamped in this Colony. It is not a matter of registration, as the Magistrate thought, but a matter of stamping according to the laws of this Colony. The document is impounded and if the appellant wishes this Court to proceed with the merits of this appeal he must have it stamped and any penalty imposed must be paid.

We will then consider the matter further.

JUDGMENT.—Neither appellant nor respondent has wished to be present at the hearing of this appeal.

Since the delivery by this Court of the ruling on 13th March, 1942, the appellant has had stamped the wakala referred to in the Ruling and has also paid the penalty demanded by the Inland Revenue namely Sh. 20. The Court is therefore now in a position to go into the merits of this appeal and to consider the arguments thereon.

The promissory note upon which this action was brought appears to be in order and a valid acknowledgment of a loan made by the plaintiff Ali bin Omar bin Omar to the deceased Hafsa Binti Omar.

The plaintiff appointed his brother Abubaker bin Omar as his attorney by means of a *wakala* produced. A *wakala* appears to be equivalent to a Power of Attorney. This particular wakala appears to be in order and valid. It authorizes the Attorney to sue the heirs but of course the Attorney was correct in suing not the heirs but the Wasi of the estate who represented the heirs.

He is the *ex-officio* Agent, the defendant in the lower Court. The case was dismissed in the lower Court because the *wakala* was not registered. I cannot find however any authority for saying that such a *wakala* must be registered. If it is in order, is stamped and is produced at the trial that is sufficient. It was produced unstamped at the trial but the Magistrate should have given the appellant the opportunity of having it stamped. It appears to me that the plaintiff ought to succeed upon the promissory note. There is no suggestion that it was obtained. by fraud and indeed the husband of the deceased, who signed it, admits it is. valid and that his wife did borrow the money from the plaintiff. That evidence is against his own interest as one of the heirs in the estate and therefore. prima facie rings true.

The action ought properly to have been entitled "Ali bin Omar bin Omar" by his Attorney Abubaker bin Omar," but that omission is not sufficient to deprive the plaintiff of his rights.

The appeal is allowed and judgment will be entered for the plaintiff for the amount of the promissory note namely Sh. 260 with costs here and in the Court below.

The costs in this Court of Appeal cannot be much as the appellant has not appeared, and of course do not include the cost of stamping the *wakala* or the penalty of Sh. 20.