civil decision 2024 ALEXANDER WILLIAM BIDYANGUZE

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MWANZA MISCELLANEOUS CIVIL APPLICATION NO. 000012958 OF 2024 ALEXANDER WILLIAM BIDYANGUZE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF

VERSUS HAMIS ATHUMAN .............................. RESPONDENT / DEFENDANT

RULING A. MATUMA, J, “Administration of justice is a noble duty. It should be kindly executed. An administrator of justice like Magistrates or Judges should always be curious to justice whenever executing their adjudication duties. They should not let matters which appears before them detrimental to justice to go unchecked and dully determined” That is what I said in the case of Dastan Elia versus The Republic (DC) Criminal Appeal No. 01/2020 in the High Court of Tanzania at Kigoma. I repeated so in several other cases due to what I observed on some matters I presided through which I noted that some adjudicators acted without curiosity to justice by allowing technical litigants to defeat justice which was otherwise apparent on the face of record. In this particular case I may add that curiosity to justice should not only be to Judges and Magistrates but also all officers of the court are duty bound to be curious to justice. These includes learned advocates, Court Brokers and Court process servers and all those who are tied to the chain of justice administration such as stake holders. Why I have decided to start with such a memorial situation, it is because in the instant case a very pathetic matter as it can be seen in the herein above brief history of the matter, the parties found themselves litigating in court for more than eighteen (18) years unnecessarily. At first the

matter started in the District Land and Housing Tribunal for Mwanza in the year 2006 but stood pending there until 24th September, 2021 when it was decided. That is sixteen good years litigants are made meandering into court corridors without knowing the fate of their case. That is a period from which a child is conceived, he or she is born, he or she is breasting, he or she is attending to a nursery school, he or she is attending and completing a primary school education and he or she is attending secondary education up to form three or form four and some children might be even to High schools. We can’t have such kind of administration of justice. We all know that justice delayed is justice denied. That is what happened in this case because the original parties Page. 1 Constance Banyankabona and Joseph William Bidyanguze who were spouses died without getting their rights. Their respective administrators of estates are the one litigating to date. Yet their respective rights are not finally determined. If a serious intervention is not made, they might find themselves litigating for another sixteen years or more. As that was not enough, after the decision which came after such sixteen years, none of the parties was aggrieved and thus did not appeal. Unfortunately, a third party using the name of the second respondent herein Hamisi Athumani Ramadhan engaged a firm of advocates to

appeal against such decision without the knowledge and or consent of such Hamisi Athumani Ramadhani. The judgment on appeal nullified the proceedings and quashed the trial court judgment and ordered a retrial. When the matter went for a retrial, the parties and the chairman of the tribunal got stranded due to some amendments of the law affecting jurisdiction of the tribunal in which Government institutions are required to be sued along with the Honourable Attorney General and thus the jurisdiction lies to the High Court hence this reference proceedings. Briefly, the late Joseph William Bidyanguze now the first respondent in the year 1997 obtained a loan of Tshs. 18,000,000/= from NBC Bank but defaulted the payment schedule. As a result, in the year 2006 NBC bank sold the collateral which was the house on Plot no. 448 Block “F” at Nyamanoro area to the second respondent herein Mr. Hamisi Athumani Ramadhan for Tshs. 21,000,000/=. Later the businesses of NBC were taken over by Consolidated Holding Corporation, a Government Entity. The late Constance Banyankambona (spouse) now the Applicant through Land Application no. 132 of 2006 in the District Land and Housing Tribunal for Mwanza successfully challenged both the Mortgage Deed for want of Spouse Consent and the sale of the suit plot to the second respondent. The trial tribunal declared that the mortgage deed was invalid and

ordered NBC to refund the second respondent his purchase price at the current value to the time of such refund. Both the applicant, the first respondent and the second respondent became satisfied with the decision. The fourth respondent Consolidated Holding Corporation stood mute as she took no action whose inference is that she was as well satisfied with such decision. Thus, all the parties were not aggrieved by the decision of the trial tribunal. Unfortunately, NBC whose interests were being taken care by Consolidated Holding Corporation decided to act on its own against such decision without consultation with Consolidated Holding Corporation. It hired a legal firm to appeal against the said decision and chose to use the name of the second respondent herein to appeal, again without the knowledge and or consent of the said second respondent. When the second respondent was struggling at NBC offices for refund of his purchase money, he was merely told that there is an appeal to the High Court against such decision but could not know that he was the very one appearing as an appellant in the said appeal. The appeal was determined and the lower court decision quashed as stated supra. Thereafter NBC relaxed because the burden to refund the money has been quashed by the High Court and the retrial order had nothing to do with her because she is not a party thereto despite of having

assumed back her business operations because the parties have not yet been changed to the proceedings. It is Consolidated Holding Corporations who is reading there and not NBC. Page. 2 Yet the said Consolidated Holding Corporation is also no longer in existence and its businesses are being ran by the Treasury Registrar (Msajili Hazina). All these transitions and transformations have made NBC and or Consolidated Holding Corporations to completely relax leaving the Applicant, the first respondent and the second respondent stranded without knowing the fate of their rights. As the District Land and Housing Tribunal chairman hesitated to retry the matter due to existence of a government entity as a party, the matter was referred to this court for guidance hence the matter at hand. At the hearing of this matter, it is when the second respondent lamented that he did not know anything on these proceedings because the matter ended at the tribunal and he obtained an order to be refunded his purchase money. He bitterly complained that he had never appealed against the decision of the trial tribunal and whoever appealed in his name made so without his instructions. Following such complaints I made perusal to land appeal no. 61 of 2021 in which the second respondent appears to be the appellant and noted that two advocates drew the petition of appeal on his behalf and three

advocates appeared at the hearing of such appeal to represent him. Being curious to justice, I ordered the second respondent to file an affidavit stating the facts relating to the matter at hand and the said appeal and summoned the advocates who appeared to have appealed for him and represented him at the hearing of such appeal. I drew the following issues for determination; 1. Whether the 2nd Respondent (Hamisi Athumani Ramadhan) really appealed against the decision of the District Land and Housing Tribunal (Land Application no. 132/2006) vide Land Appeal no. 61 of 2021.

2. Whether this court can exercise its Review jurisdiction to do away its own judgment in case it was fraudulently procured.

3. Whether there was any professional misconduct on the part of advocates who instituted and prosecuted Land Appeal no. 61 of 2021 in the names of the 2nd Respondent (Hamisi Athumani Ramadhan).

4. What relief(s) should this court grant to the parties. At the hearing of those issues, the Applicant was present in person and represented by advocate Chrispine Myeke, the 1st Respondent was as well present and represented by Advocate Dominicus Mlumbe, The 2nd Respondent was present in person without any legal representation, the 3rd Respondent was represented by Mr. Lameck Merumba learned Senior State Attorney. The four summoned advocates who drafted, instituted and prosecuted the appeal by using the names of the second respondent all appeared as ordered and the Branch Manager NBC Bank who was as well summoned was represented by Ester Kahabi (Afisa Mahusiano wa Benki). I have decided not to disclose the names of those advocates and or the name of their legal Firm just to protect their dignity and reputations because of their respective honest submissions made before me apologizing that they wrongly acted for the second respondent without seeking his consent and or consultation as a result causing the second respondent to lose what he had obtained in the lower court. But again, their explanation on how they got engaged to act in the matter the way they acted. I will thus refer them in this ruling as Senior advocate GN, learned Page. 3 advocate LL, learned advocate HR, learned advocate KNK. All the parties to this reference and the summoned parties in their respective

submissions agreed that in fact the second respondent did not appeal nor he was aware of such appeal as he was not consulted. The Senior advocate Mr. GN elaborated that during trial at the trial tribunal the second Respondent and NBC Bank were fighting together with common interest to rescue the house in question and validate the sale of such house to the second respondent. In that regard NBC hired them to act for the second respondent and they drew the Written Statement of Defence on behalf of the second Respondent. The learned advocate tendered a copy of such Statement of defence to substantiate his submission. He went on that sometime in the course of trial NBC withdrew instructions from their firm and thus they did not proceed with the matter. The second respondent stood by his own until when the judgment was pronounced. After the judgment it is when NBC went back to them with such judgment seeking for legal advice on what should they do in the meaning that they were not happy with such judgment which had ordered them to refund the second respondent his purchase price. The firm opined to NBC that there were two options; One, is for the second respondent to appeal against such judgment to protect his purchase of the house and two, it is for NBC to seek Revision because by that time she was not reading as a party to the suit. NBC opted for the second Respondent to appeal and

instructed such advocates through their firm to institute the appeal and proceed accordingly. They heeded to the instructions. The learned advocate tendered a set of compiled correspondences between their firm and NBC to substantiate his submissions. The learned advocate then concluded that they did all these in good faith and honestly believing that they were acting for the second respondent so that he gets out the house he purchased. He however conceded that they lacked the requisite diligence to have acted on the instructions of a third party without consulting the second respondent as to whether he was interested to appeal or not. He finally submitted; “Kwa msingi huo bwana Hamis Ramadhani aliathirika kutokana na hukumu ya rufaa ambayo yeye mwenyewe hakuwa ameamua kukata. Sisi kama mawakili tunaahidi wakati mwingine tutakuwa makini zaidi kupokea maelezo sahihi kutoka kwa wateja wanaohusika” His accompanied advocates Mr. LL, Mr. KNK and M/S HR had no more. They subscribed to what he submitted. In respect of the issue relating to Review, both parties and the summoned one were at per that this court can review its own decision if it is established that such decision was fraudulently procured or illegally obtained. They cited the provisions of section 78 (1) (a) (b) read together with order XLII rule 1(1)(a)(b) of the CPC. They also cited the cases of Theresia Thomas Madaha

versus Jonas Samson Ndawavya, (Administror of the estate of the late Paulina Samson Ndawavya), Civil Application No. 31 /08 of 2023 at page 3, Longututi Metishooki versus Godfrey Melami, Land Review Application No. 2 of 2023, (HC) and that of Pelagia Kokuhirwa Herman versus Japhet Mtani Wang’uba, civil Review No. 04 of 2021 (HC) at page 4. On this issue while the applicant, first and second respondents maintained that the judgment of this court was fraudulently procured and thus liable to be reviews on that ground, the learned advocates who were summoned argued that indeed such judgment was not properly obtained but it was not fraudulently. The senior advocate GN Page. 4 argued that it would be more proper to review the said judgment because it was procured through an appeal which was instituted and prosecuted without instructions from the appellant rather than on the ground of fraud because they acted honestly for the purposes of getting the second respondent the house in question. On whether there was professional misconduct on the part of the advocates who instituted and prosecuted the appeal in the names of the second respondent without his instructions, the second respondent did not chew words. He right away argued that there was professional misconduct because his name was used to appeal to his prejudice without his instructions and even when the judgment on appeal was

pronounced, they did not inform him of the results. The applicant’s counsel, the first respondent’s counsel and the learned Senior State Attorney for the third respondent on their part refrained to submit on the issue and left it for the court to determine in the circumstances of the record at hand. On their part the learned advocates through the mouth of their senior one, argued that they did not commit professional misconduct but rather they lacked due care to have inquired from the second respondent on whether he really wanted to appeal. That their motive was purely to fight for the second respondent’s interest in the house he bought and they didn’t intend to prejudice him. On the reliefs to be given to the parties, all parties argued that the review of the judgment in land appeal no. 61 of 2021 would be the proper and enough remedy to the parties because it is such judgment which was improperly procured all these problems occurred leading the parties to suffer to date. Now, I will determine the issues direct because everything is wide open as reflected above. In respect of the first issue as to Whether the 2nd Respondent (Hamisi Athumani Ramadhan) really appealed against the decision of the District Land and Housing Tribunal (Land Application no. 132/2006) vide Land Appeal no. 61 of 2021, the answer is in the negative. Both parties and even those advocates who instituted

the said appeal admitted that indeed the second respondent did not appeal nor instructed any person to appeal on his behalf. It is apparent on record that it was NBC who appealed disguising herself into the names of the second respondent and throughout the process of instituting such appeal and it’s hearing the second respondent was not aware that there was an appeal pending under his name. Therefore, the issue is uncontested and it is answered in the nagative that the second respondent did not appeal in such appeal despite the fact that the said appeal reflected his name as an appellant. In respect of the second issue as to Whether this court can exercise its Review jurisdiction to do away its own judgment in case it was fraudulently procured, this issue is answered in the affirmative. Both parties argued that under the herein cited provisions this court can review its own decision if it is established that such decision was fraudulently procured. In fact, in the case of Pelagia Kokuhirwa Herman supra there was a quotation of the case of Transport Equipment Ltd versus Devram P. Valambhia, Civil Application no. 18 of 1993 in which it was held that the court has inherent jurisdiction to review its own judgment when there is manifest error on the face of record which resulted into miscarriage of justice or where the decision was attained by fraud or whether a party was wrongly

deprived of the opportunity to be heard. Page. 5 In the instant matter there is no apparent error on the face of record but the impugned judgment was fraudulently procured and it resulted from the proceedings in which the second respondent was wrongly deprived his right to be heard but the results thereof directly affected him by quashing the reliefs he had obtained at the lower court. The learned senior advocate GN tried to argue that although the impugned judgment was improperly procured it was not fraudulently obtained. I don’t agree with him. It was procured both fraudulently and improperly. The fraud is exhibited by the conducts of NBC and these advocates. Mr. GN learned advocate in his submission stated that their advice to NBC was either to use the second respondent to appeal or NBC to seek Revision. But going through the correspondences between NBC and such legal firm I did not find such advice. What is apparent the learned advocate opined that the judgment of the District Land and Housing Tribunal was appealable on four grounds which they highlighted in such opinion. Their advice was for NBC to appeal and not the second respondent. Just to quote, they advised; “We have reviewed the said judgment and we advise the bank should consider an appeal to the High Court on the following grounds ...’ Thereafter they were given go ahead and it is when an appeal was preferred in

the names of the second respondent contrary to the advise given as quoted above. Even the email from NBC seeking advise from these advocates did not tell them that the second respondent was aggrieved but it clearly stated that the bank was aggrieved by the order requiring them to refund the purchase price; “Please see the attached copy (of the judgment) for your reviews on the same. The mortgage was declared null and void for lack of consent. The bank has been ordered to refund the purchase price plus interest from 2006 to the date of payment. Thanks and Regards” In that respect the grievances of NBC was the refund order. The second respondent was not even discussed. I did not even see a phrase in the conversation where NBC instructed the learned advocate to appeal in the names of the second respondent. It might have come later by oral conversations or at the time of drafting the Petition of Appeal the learned advocate considered that the second respondent could be better positioned to appeal than NBC and thus drafted the appeal in his name fraudulently. It was a fraud act because the High Court was deceived that it was the second respondent herein who appealed while in fact he was not. Although NBC were not reading as parties in the trial court, their interests were under the care of Consolidated Holdings. If at all they were aggrieved they should have appealed by themselves

through Consolidated Holdings and not to use the name of the second respondent to appeal. Not only that but also when NBC or the learned advocates made the decision to appeal in the names of the second respondent, they did not consult him nor informed him. They hidden him of their mission. Their interests were just to relieve NBC from the order of the trial court to refund the purchase money to the second respondent. That is why when they obtained the order of this court quashing the trial court judgment they did not cooperate anyhow with the second respondent. In fact, NBC were aware even prior to the judgment of the trial tribunal that the second respondent had lost interest in the house in question and all what he wanted was a refund of his purchase money. That is exhibited in his letter dated 29/07/2021 directed to the Regional Commissioner in which he was complaining against NBC. In that letter which was well copied and received by NBC the second respondent in the last paragraph wrote; Page. 6 “Mhe. Mkuu wa Mkoa; Kutokana na usumbufu na manyanyasiko ambayo nimepitia mpaka leo hii nikipigania haki yangu, naomba lalamiko langu nililete mbele yako ili uweze kunisaidia; kwani hatua niliofikia na migogoro iliyopo mimi nyumba hiyo siitaki tena na nataka nilipwe pesa yangu yote Pamoja na fidia ya usumbufu niliopitia toka mwaka 2006 mpaka leo hii, Pamoja na fidia ya faida ambayo

ningepata kwa kutimiza malengo yangu” The Regional Commissioner forwarded such complaint and required NBC to make the requisite refund but NBC replied through their letter dated 10/08/2021 with reference no. NBCLEAGAL/RC-HAMIS.RAMADHAN; “Maelekezo yaliyotolewa na ofisi yako, inayoitak NBC kumrudishia fedha ya manunuzi ya nyumba, kulipa riba Pamoja na fidia hayataweza kutekelezwa kwa sababu shauri bado lipo mahakamani mkoani Mwanza” From the quotations above it is obvious that NBC were aware that the second respondent was no longer interested with the suit house even prior to the trial court judgment. In that respect when the trial court judgment was delivered requiring NBC to refund the purchase price to the second respondent it favoured the interest of the second respondent. NBC to initiate the appeal was not intending to fight for the interest of the second respondent but to do away the interest already obtained. That is why they made an appeal secretly. Unfortunately, the second respondent was not accorded opportunity to be heard on appeal because the Hon. Judge on appeal was deceived by the presence of four advocates all purporting to represent the appellant (second respondent) who was not even aware of such an appeal. In the circumstances, believing that she had heard the second respondent through his advocates the learned Judge delivered the judgment against the second

respondent’s favour. On the other hand, such judgment favoured NBC who didn’t want to refund the purchase money and that is why once such judgment was obtained, NBC relaxed as the mission was accomplished. Such judgment was thus fraudulently procured because the court was deceived that it was the second respondent as an appellant before it while in fact it was NBC before it in a disguised manner. That being the case the said judgment is liable to be reviewed among others on the ground that it was fraudulently obtained. In respect of the third issues as to Whether there was any professional misconduct on the part of advocates who instituted and prosecuted Land Appeal no. 61 of 2021 in the names of the 2nd Respondent (Hamisi Athumani Ramadhan), no doubt that the learned advocates committed professional misconduct. It is very difficult to draw the line between the ill-will motive of NBC against the interests of the second respondent and the conducts of advocates in deciding to draft the appeal, institute it and prosecuting it to its finality without bothering to meet the second respondent and or inform him of at least that they have been engaged by NBC to represent him. It is thus apparent that the advocates conspired with NBC to make sure that the second respondent is not made aware of such appeal because he was not interested in it. Lack of due diligence to verify the

instructions from the second respondent was by itself a professional misconduct because an advocate is not permitted to institute and conduct proceedings of a client impersonating another. In the instant matter NBC was impersonating the second respondent and the learned advocates assisted her to such impersonation. Page. 7 I draw the attention of these advocates to regulation 92 (2) of the Advocates (Professional Conduct and Etiquette) Regulations, 2018 that the following are professional misconducts which might subject them to the relevant authorities to be dealt with and might put their practice into danger; 1. to institute proceedings which are clearly motivated by malice on the part of the client and are brought solely for the purpose of injuring another party. 2. to assist or permit the client to do anything which is dishonest or dishonourable. 3. to deceive or attempt or participate in the deception of a court or influence the course of justice by offering false evidence. 4. to present in court a false or deceptive, exaggerated or inflammatory affidavit. 5. to assist in any way the commission of fraud, crime or illegal conduct. 6. to permit anyone to impersonate another. The learned advocates have committed all these professional misconducts in the instant matter. I also draw their attention that they have a duty to be carefully against dishonest clients to avoid the

possibilities of being used as a tool to the commission of unethical conducts. That can be grasped under regulation 21 (2) of the Regulations supra which provides; “The advocate has a duty to be on guard against becoming the tool or dupe of an unscrupulous client or of persons associated with the client who have an interest in the client's matter or its outcome and against engaging in unethical conduct” In respect of the reliefs, I find that there being no dispute that the judgement of this court in Land Appeal no. 61 of 2021 between the parties herein was fraudulently and improperly procured, the first relief is to review such judgment. In that respect and in the exercise of my review jurisdiction under the herein above provisions, I do hereby review the judgment of this court in Land Appeal no. 61 of 2021 by setting it aside. In that respect the decision of the District Land and Housing Tribunal for Mwanza in Land Application no. 132 of 2006 is restored and can be executed accordingly unless any aggrieved party thereof successful appeals. I would have suspended the learned advocates who instituted such dishonest proceedings affecting the interests of the second respondent and forward their respective names to the relevant authorities to be dealt in accordance to the law but due to their deliberate honest submissions at the hearing of this matter, I find it in the interest of

justice to agree with their senior advocate Mr. GN that I end by warning them to act more diligently in future instructions. I therefore warn the four learned advocates; Mr. GN, Mr. LL, Mr. KNK and M/S HR not to act on any matter unless properly instructed in accordance to the guiding rules. Should they repeat the misconduct, the necessary steps shall be taken accordingly. Finally, I do not find any interest to condemn either party costs of this matter because all the parties hereon were being dragged into unwarranted proceedings by a none party, a camouflaged party, NBC so to speak. That could entitle this court to condemn NBC of the costs but I find it better to refrain from condemning them of such costs because they also cooperated to the instant matter admitting their wrongs. Condemning them costs would be ignoring their admissions of the wrongs but sparing them would be appreciating that “truth saves a lot” and encouraging them to stand on true facts to future proceedings. Page. 8 With all these, this application is granted to the extent herein above stated. It is so ordered. Dated at MWANZA ZONE this 17th of September 2024. A. . MATUMA, J

JUDGE OF THE HIGH COURT Page. 9