20070518 TZHC Dar es Salaam

········~.., 4 IN THE HIGH COUllt O.F TANZANIA, At DAR ES SALAAM (CORAM: MLAY, J., LONGWAY, J .. AND RUGAZIA, J.) MISC. CIVIL APPEAL N0.18 OF 2004 DR. MASUMBUKO it.M. LAMWAI ........................ APPELLANT

VERSUS 1. THE ADVOCATES COMMITTEE 2. BERNARD REUBEN MREMA ... ...... ............ RESPONDENTS

JUDGMENT Longway, J. In this appeal, the. Appellant Masumbuko Roman Mahunga Lamwai who was convicted and sentenced by the Advocates -~·· Committee in respect of a complaint for misconduct by Bernard Ruben Mrema, is now appealing against the Advocates' Committee's decision on 14 grounds viz: 1. That the Honourable Chairman and Members erred in law_ and fact in entertaining matters which were not properly b~fore the Committee. Had the Comrnittee ·addressed its mind to the mandatory provisions of Rule 3 of the Advocates (Disciplinary) Rules, they should have held that they did not - , , have jurisdiction to entertain the matter since the complainant never filed the prescribed Form No.1 nor was there any affidavit in support of the application as required. by the said Rule.

2. That the Honourable Chairman and Members erred in law and in fact in fixing a hearing d'ate for the application without having before it material sufficient to enable the Committee to decide that there was a prima facie case against the Appellant.

3. That the Honourable Chairman and Members erred in law and in fact in holding that there was a proper service on the appellant while in fact the Appellant 'had not been served with either an application or any affidavit. The Committee should have found as a fact that there was no application r--- before it and that the pleadings had not even commenced.

4. That the Honourable Chairman and Members erred in law and in fact in holding that the Appellant was Responsible for the dismissal of the 2nd Respondent's cc1se after it was clear that the· 2nd respondent accepted Mr. .Deo Ringia's appearance in court on :his behalf and his advice that they should concede to the prel.iminary objection raised by the Defendi;lnt without h·aving ·properly :looked at the record. 2 • . ' ., .. •'<··.·-......,'-.~-·· - ........ -····-- l: -········· ············-··-·--·--···-·-··--····-·--····-·-·---·- ................_ . /4, -----·-"" ·. . .....,..,....~ ·-----······.

5. That the Honourable Chairman and Members erred' in law and in fact in holding that the Appeliant had beeh served with a complaint while ih fact wh·at was served on him was a copy of a letter to the Tanganyika Law Society, and no formal complaint was indeed served on· the appellant.

6. That the Honourable Chairman and Members erred in law and iri fact in holding that the Appel!_~nt had filed a defence to the complaint while in fact, what he did was to reply to the copy of the letter to the Tanganyika Law Society. Had it been a defence, he should have filed a Counter Affidavit.

7. That the Honourable Chairman and Mernber5 erred in law and in fact in acting on the letter rather than on. a formal complaint as required by the Advocates (Disciplinary) Rules.

8. That the Honourable Chairman and Members erred in law and -in fact in beHeving that there was a second suit filed I subsequent to the one dismissed, without being shown copies of the pleadings and without looking at the record of the High Court. The Committee should have required the 2nd Re~pondent to supply these documents before the hearing date was fixed. 3 I , i, 9·. That the Honourable Chairman and Members erred in law and in fact in accepting Mr. Deo Ringia 1s testimony without corrobo~ation w·hile apparently he was a co-Respondent in the application.

10. That the Honourable Chairman and Members lacked jurisdiction to order a refund of Tshs.2·s,ooo,ooo;= to the Respondent while in fact the 2n 9 Respondent had spent nothing.

11. That the Honourable chairman and Members did not have jurisdiction to award any damages and/or compensation to the t 1d Respondent.

12. That the Honourable Ch·airman and Members erred in law and in fact in holding that there was any misconduct on the p:art of the Appellant. Had they- properly addressed their minds to the whole iss'ue, it would have been clear that the dismissal of the suit happened when the Appellant was under suspension and that the 2nd Respondent had consented to Mr. Deo Ringia acting on his behalf.

13. That th.e pun'ishment of .suspension for one year is excessive in any circumstance. 4 14. Request for a copy of the decree was made and the Secretary to the 1st Respondent informed the Appe.llant that the Committee did not have the practice of issuing decrees. On these grounds, the Appellant prays that this court allows the appeal and order that the conviction and sentence for misconduct be ,- set aside; that the suspension from practicing for ,one year be set aside as well as the order that the .Appellant pay the 2nd Respondent Tshs.25,000,000/= be quashed and set aside with costs and any other order that the court may deem fit. The background to the decision now sought to be impugned is that the 2nd Respondent had instructed the Appellant to conduct or represent him in a claim he -had against Attorney General and the Inspector of Police, for loss suffered as a result of his motor vehicle · having been .impounded by the Traffic Police in Dodoma, and which had been returned to him in a dilapidated state, such that it was only worth scrap. Instructions having been given a17d taken for the Appellant by Mr. Mchome, process had to be ·set in motion with the preparation and ·service of a 90 days notice to the Defendants, but which d.id hot ta.ke place. On f:ollowing up ·th·e: Appellant, the 2 nd 5 -:-------------~---.......................................................

___ '"'""MOU..HUrnMOUH ,,..,.,_,.M•"""" • ''''"'""""'""""' ; , respondent was informed of the Appellant1s- being a Member of Parliament and could be found at his office in Kinondoni. On finding the Appellant the 2nd Respondent had to give a second set of documents for the issuance of notice. Thereafter he was attended to in respect of the suit by advocates in Dr. Lamwai's (Chambers), who appeared in court to adjourn the suit for the Appellant who never appeared. Later, the 2nd Respondent discovered that the Appellant had been suspended from practicing and on calling on Mr. Deo Ringia he was advised to withdraw his suit for lack· of notice of intention to sue. Later, upon informing the Appellant of his· case's dismissal, th.e Appellant told him that Mr. Ringia must have taken a bribe from the other side. In all, the 2nd Respondent pressed on with/ insisted with his complaint against the Appellant by reason that the Appellant was the advocate he had instructed to r_epresent him, so he was responsible for what he claimed. It is part of the background information that Mr. Deogratias Ringia was ·joined to the charge by the 2nd Respondent and that he 6 ... ,¥WH~••,.•' •~•¥•~ ., .... , . . . . . . . . . . . , _ • . , _ ,.., OM&&•----.... • - - - • - - • - - • • - - - • • • •...... •-•-c. . •-•>••-• ~ ... -• • ;, • • - - ~ .... -"••<A-,0••-•---♦•-- ,~ ...- - - • - - • ·

--•-ri<oHA••-~-•-•--• •• 00 had fi.led his defence and testified in response to the complaint. The base line of Mr. Ringia's defence was to the effect that he had attended to the 2nd Respondent on behalf of the Appellant who had instructions and denied receiving any bribe from the State Attorney. It is useful to note that as background knowledge for th•is appeal and was indeed observed at the hearing of the complaint, that . the 2nd Respondent had no claim against Mr. Deogratias Ringia but the Appellant. The Appellant did not .appear before the Committee to defend himself nor did he file his defence as was -availed time to do so on 28/11/2001, rescheduled to the 31/12/2003 and another reschedule on 15/3/2004 that the defence be filed on 22/3/2004 after asking for _.,..·.-.. a week's extension reasoning a failure to obtain documents relevant to the tomplaint. That by the 21/6/2004 when hearing was to take place, rio defence had been filed as ordered on 22/3/2004 and the Appellant was absent with no word to the Committee, so the prosecution proceeded in his (Appel-lants) absence. Parties to this appeal Were scheduled to file Written Submissions in argument of the appeal. Following the order of the 7 1· 16/3/06 the Appellant was to file his Submissions on the 6/4/06 and he did so. It is noted that the reply by the Respondents was in defaulted of the date scheduled and was

rescheduled to 31/5/2006 with the Appellants· rejoinder to be filed on 14/6/06. What are the arguments? At a glance, the grounds given by the Appellant on the memorandum of appeal, are attacking the process followed by the Committee and the 2nd Respondent in bringing the complaint to the trial that took place and therefore the consequences that should have been. Some grounds have similar arguments too as has been shown by the parties' submissi~ns, in order to avoid repetitions, groupings may be necessary. In his submissions on the ground number I it is submitted that had the committee addressed itself to the mandatory provisions of Rule 3 of the Advocates {Disciplinary) Rules it would have been found that the Committee had no jurisdiction to entertain the complaint which was not· couched in the formal of Form No 1 - a prescribed form. Worse still that there was no affidavit to support the application. It was contended that the 2n·d Respondent's letter of 4/12/2000 to the Secreta:ry to Advocates Committee which asks the 8 0 . . . , . , , . , . , . , , . • . , . . . . . . . . . . . . . .- , .. •M•O,o"n" •MmHMOMO" . . . . . . . . . . . . . _ _ _ __ Secretary to take action. •against the appellant and Mr. Deo Ringia for the withdrawal :of his case, does hot suggest the type of action to .be taken against them. In a similar· manner the appellant contended that the Acting Secretary's

.letter to the Advocates Committee of the 15/10/2003 requiring him to answer the 2nd Respondent's complaint ' ' in the lettet and atten.d hearing on the 28 th November, 200'.3 ,only purported to be a notice, since there was no affidavit to support the application. The appellant insisted in his submissions that contrary to the requirements of Rule 3 of Advocates (Disciplinary) ·Rules, there was no formal process setting in motion of the action sought to be taken . as per Rule 5 of the Rules and that clearly1 no prima fade case had been shown. The appellant submitted that a prima facie case could not have· been made on a were letter from a complainant. As such that the notice was premature since no formal pleadings were before the committee. Further, the appellant submitted 'that Rule 6 required an exchange service of documents by parties which process the Secretary did not comply with, so th·e proceedings were not properly before the 9 Deo Ringia state that he had instructed h,im to do so, with the knowledge of the 2nd Respondent. From th.e foregoing, and the fact that the 2nd Respondent had followed Mr. Deo Ringia to his office in Kariakoo because he wanted him to still represent him and was asked to pay fees, the Appellant submitted that the 2nd Respondent .had withdrawn his representation since being on suspension he could not practice. As such, the Appellant submits th·at

.he could not have failed to render legal services. The Appellant pointed out in his Submission that no materials/documents were shown to the Committee respecting process of the civil case, so that a finding could be made. On the observation by the Committee that the Appellant had not been served on 28/11/200l; because as complained that he had not been served with a copy of the complaint and extending time for the Appellant to file defence, but did. not do so, is that the Appellant had not been served With a copy of Form No.

1. That the same had not been filed because it was non existent. The Appellant therefore submitted he had not misconduct himself and he prayed that the 12 ............ ,-~---· ............... . • • - - -.. ., • - • ~ u ~ - . ' • ·----····. - ··- .. ·-f: ..,~--··•--· ·······-··• ..... _, ,,_,,_.,,_, " ......... - ... ----·· ..... _,_ ·------····--··-- '.·•-i.. ..........._,, _ ,,, ___ - - ,-·-----..------------....... .,,,.,__ . court should hold that the 2nd Respondent's suit had been processed atth<; instance of Mr. Deo Ringia after accepting the advice he had given. In ground five, the Appellant complains that he was wrongly held to have been served with the Complaint. He .submitted that what were served on him was the letter to the Secretary of the Advocates Committee of 4/12/2000 from the 2nd Respondent, complainihg. against him and Deo Ringia. Indeed as submitted in respect of ground one on this point, the Appellant repeats that the committee was informed of .his non service of the complaint on him· on 28/1i/0l and had ordered s.uch service as well as giving him extensions to file his defence. The Appellant further repeated that contrary to the provisions of Rule 5, no copy of form 1 · and supporting affidavit were served on him, so he could not have answered as required in law. The Appellant's ground number 6 is a tag on the previous ground, that he was wrong'ly

held to have filed a defence when in fact he had· only made a reply to the Gopy of_ the letter to the Tanganyika Law Society, not a Counter affidavit. It is_ argued, that 13 the Committee in requiring the Appellant to reply to the letter by the 2nd Respondent, was asking him to do the impossible especially as the .letter did not comprise of an application properly before the Committee. The Appelilant's submission on groµnd seven repeats those made on grounds 1 and 2 and also What 'is in ground 6 above, in that the letter of complaint did not comply with the strict requirements of Rule 3; so It did not expose the nature of the case against the Appellant, for him to be able to defend himself. On the Submission in the ei.ghth ground, the appellant adopts the submission on ground 4 to state that, since no records of the proceedjngs of the 2rid Respondent's second suit which was dismissed for non-appearance were produced in evidence, the Committee wrongly held that such a case existed. This flaw is blamed on the improper institution of the proceedings now sought to be impugned, on grounds that had there been an affidavit .supporting the complaint as provided by the Rules, such facts rn~y have been put in place by the Cornmitte;e. The ninth ground is .that the tornrnitte.e should not have accepted Mr. Deo Ringia's testimony without corroboration.

The 14 --------------------····································-. ······················-----··-··· ... Appellant submitted that Mr. Ringia was recorded to have stated that the Appellant had a firm of advocates, which he did not. ihat he had appeared on his behalf, when the 2nd Respondenes •complaint shows that Mr. Ringia's role was discussed, but went on to give advice and take action by withdraw the suit. That Mr. Ringia had said he perused record of suit and had observed that the Appellant had not served the Attorney General with a 90 (ninety) days statutory notice of intention to sue. But that the identity of the file ·is not disclosed. That with regards to the misunderstanding aileged by Mr. Ringia, the Appellant found out that during his suspension, Mr. Ringia and others had worked under his name when he was not a registered firm and were not even accountable to him. Further, the Appellant submitted that according to the t 1d Respondenfs letter of complaint, Mr. Ringia ( was the 2nd person complained against and is referred to as a second Respondent by the Committee. Mr. Rfngia's evidence was taken and acted upon without the support of independent evidence. That Mr. Ringia's statement on his association with the Appellant without evidence -of the same, was !Jnrenable and intended to shift the burden of th~· mistake ih withdrawing the .case to the Appellant

an.d 15 ·-········-··•· ......................................... ---------·-··--··················-···-·························································•·•-······ attempting to show that the Appellant still had inst(uction$ while the 2nd respondent appeared in court with Mr. Ringia. On the Appellant's tenth ground, it is submitted that .the committee had no power to order that the Appellant refund the 2nd respondent 25,000,000/= for reasons given, because no evidence was led on the issue of his negligence and especially that the 2nd Respondent had spent nothing. It was submitted that the Committee's powers we:re limited to the provisions of section 13 (4) (v) of the Advocates Act, whereby in his view, the Committee can only order costs which would not include compensation for a claim recoverable in a suit. That even if the same was recoverable, it would have to be in a civil suit for negligence., when the amount of damage would be assessed. This submission applies to complaint ain ground eleven. O.n the: twelfth ,gro.und the Appellant adopted the. submission on ground four that he had nothing to d:o with. the misconouct sir1ce the suit was dismis$ed during his suspension. 16 ____ ................ · - - - - - - - - - - - ~ ,..............................,......................................... -,----- In the thirteenth .arid last ground; it i's submitted that the

one years suspension was excessive considering. that what is complained to have happened, happened when he was in suspension,· therefore unable to contract the events. Also; as submitted in the foregoing, the 2 nd Respondent's suit was terminated by the decision of Mr. Ringla and the 2nd Respondent without the Appellant's instructions. The Appellant also submitted that no reason has been given for the punishment metted out, when his livelihood depends on ·his practice. Reference was made to section 13 (4)(b) of the Advocates Act as to. the Committee's powers to punishment. In a.II the Appellant prayed that the appeal be allowed. The 1st respondent, the Advocates CommJttee, is represented by the learned State Attorney from the Attorney General's-Chambers. The learned State Attorney expressed his/her intention to submit .in parts, in accordance with the nature of the Appellant's submissions. It was point out that the grounds 1-3, 5-7 and 9 were objections rather than grounds which .could have been raised under rule 14 of the Advocates {Disciplinary) and other Proceedings :i~ules. 17 --················ .. ················-------------·············,····· ·······--- It was submitted that because he did not take advantage of the several instances he was avatled, he was now time barred .. The 2~d portion of the learned State Attorney's submission in reply, was that the court was.now

trying the , records of evidence and what transpired at the trial. As such, that grounds 4, 8 and 12 and their submissions would have been good defence at the trial, not now when the new evidence cannot be replied to. It was submitted that the Appellant had been availed several opportunities to defend himself, but did. not take them up. That he had ignored process until the judgment was given. It was further humbly submitted therefore, that, grounds 4, 8 and 12 were not worthy of consideration, alternatively, that grounds 10, 11 and 13 will be dealt with as a 'th.ird' part of their Submissions for purposes of this appeal. The 1st Respondent opted to reply to grounds 1,2,3,5,6 and 7 generally. These are related to the existence of a complaint before the Committee and. that no enquir-les were conducted to establish a prima facie case. On th·ese grounds it was submitted that the Complainant did not have to. fill ,in the 'form No.1 · becaus~ what was . . contained .in the complaint bore '.the address of the Secretary to 18 - .. -· ................. _., ........................_.......................·--·-·-"·--- .....·-····-···... ................._.............................,.......·-·--............. -· .......................... the Advocates Committee, the titie; content that disclosed a cause of action, the Complainant's name and. that of the .Appellant'. Further, it was

submitted that while it is agreed that rules have to be complied to strictly, they should be so strictly construed as against advocates and not 'the poor laymen who might not jump the 'huddles n they wish to seek reli'ef through the same letters of the Law;. It was reasoned that otherwise the rules would never serve the laymen·: It was noted that the Committees and Tribunc1ls abide by the principle of natural justice , . rather than technicalities. From this premises, it was submitted that a complaint which did not conform to Form No.1 cduld still be accepted and acted upon, so long as the Committee was of the opinion that a prima facie case had been established. It was added in subriiission here that the affidavit wa!? not mandatory in view of the provisions of Rule 22 of the Advo-cates (Disciplinary and other Proceedings) Rules, which use the Committee in its wisdom decided upon discretionally and reasonably. So the Appellant could have responded to what document was served on him as a complaint so long as his response (defence) was reduced to writing. On the 19 complaint that the Committee did not enquire as to the existence of a prima facie case, it was submitted that Rule s does not impose a duty on the Committee to find a prima facie case if on the face of the complaint the Committee was of the opinion that such a case had been established. Responding to the grounds 4 and

8, the learned St~te Attorney submitted that the record was clear that the Appellant was handling and was responsible for the 2nd respondent's case and further that as testified by both the 2nd respondent and Mr. Deo Ringia, the letter acted on behalf of the appellant who had now and then directed him to follow up the case. That the record also showed that Deo Ringia and other people worked in the Appellant's office. Attention is drawn to the fact that wh.ile denying Deo Ringia the appellant does not say to whom he handed the 2 nd respondent's case during his suspension. As regards non production of documents of the second case, it was submitted for the 1st respondent that th.e members should not be faulted bec,n.Jse they had believed the witnesses' evidence. Also that what was still a fact:, was the dismissal of the 2 nd respondent's· case 20 drawn in the claim as the worth of the 2nd Respondent's claim on the evidence availed. on the powers of the Committee, it was submitted that these were unlimited depending. on the nature and proof of the complaint tried. That no Complainant who had successfully proven their allegations would be left without a remedy, and those in subsection S of section 13 were additio·nal~ to cater fot an order of costs. Lastly, repeating Submissions on the grounds 4 and 8, the learned State Attorney submitted that the complaint that the dismissal of the

2 nd Respondent's case took place during the· Appellant's suspension when 2nd respondent consented to · Mr. Deo Ringia to act on his behalf, was more of a defence that would .have been raised at trial.. It was learned State Attorney's Submission that ,.. Mr. Deo Ringia acted on the behalf of the AppeJlant, thE= suspension having nothing to do With the 2nd Respondent whom the (appellant) could have informed of the position but did not. Concluding his submission, \earned State Attorney shouldered the Appellant with the Responsibility of the 2 nd Respondent's case dismissal because he had not made arrangements for it. As such, thatthe one year suspension 22 was not excessive considering that the Committee's powers under section 13{4) of Cap. 341 are discretionary, and were exercised reasonably and judicially befitting the nature of the misconduct. Finally, that the Committee did not er~, so its decision and sentence should not be interfered with. In reply Submission to the 1st Respondent's submission, the Appellant argued that the Rule 14 of the Advocates (Disciplinary and Other Proceedings) Rules does not :concern the advocate against whom a complaint is made, but 'any person' who must give notice to 'the advocate·'. That even if it were to be used to raise objections it would not bar· him from raising objections at the Appellate level and no authority has been shown to this

effect.. The Appellant went on to argue that the learned State Attorney's observations did not reflect what was in the memorandum as against the evidence of Mr. Deo Ringia and the 2nd Respondent. On the response to ground 8, that the appellant did not have to prove that no second suit was filed, rather that the 2 nd Respondent to prove the withdrawal of the original suit by Mr beo Ringia and a second suit filed. The appe.llant pointed out that the 2nd respondent had told the committee of his information 23 from the appellant that he was· suspended, a ·fact within judicial notice of the Advocates Committee. From the above, it was submitted' by the appellant· that there was no question ;of fresh evidence the 2nd Respdndent would have to answer. The appellant urged that the learned State Attorney misunderstood his main complaint That he was quiet abo.ut the coverage of Rule 22 on .,.:A-""; Form No ..1. It was the Appellant's submission that it. was not a question of negligence, rather as he submitted, -it was whether the Committee had found a prima facie case disclosing the claim against him to require him to answer the complaint against him in accordance with the rules. The appellant asserts there was no_ proper application and. therefore that he should not be condemned for not having defended 1 himself. Respondi.ng to the learned State Attorney s submissions on grounds

1,2,3,S,·6 and 7 that the .c:ommittee had power to dispense with requirements of service of notices, -affidavits and documents under Rule 22 and that the complaint need not be as prescribed in i=orm No 1 but rather could be moved on the principles of natural justice; the Appellant submitted that Rules vyere to be followed and 24 . ......... .. .................... , -~ ..........~. .. -~--- ....., . . not broken. It ·was further submitted that compliance· with the Rules was important to curve the complaint in a format which would enable the advocate to defend himself/herself properly and for the committee to find if there was a prima facie case. The appellant went on to submit that the Committee had no power to dispense with the requirements of Rule 3 of the Advocates (Disciplinary) Rules and that, one can only defend oneself when the accusations are clear, which the appeal was not the case in the instant matter. Having made reference to Rule 5 of the Rules that the Committee has to make a finding of a prima facie case, it was submitted by the Appellant that the Committee can only make such a finding when the necessary documents have been filed and the finding recorded, not otherwise. On the argument by State Attorney that Mr. Dea Ringia had acted on the appellant's instructions when the appellant was on suspension, the appellant referred to sections 26 and 39 (1) of the

Advocates Act Cap 341 and submitted that while suspended, the appellant was in no position to direct or issue instructions because he would not have his practicing certificate operating. The appellant points out that the complainant had 25 acknowledged his suspension and that he would be helped after reinstatement. Otherwise that the complainant had :acquiesced in what Mr. Dea Ringia did for him in court without consultation of the appellant. On the arguments that the Committee did not have to require proof of filing of the :second suit1 the appellant submitted that he who alleges must prove, so the finding required proof of the second suit and that it was dismissed through the appellant's neg:!igence. With regards to the first suit, the appellant submitted that in fact the same had been withdrawn with leave to file a fresh suit subject to service of notice of intention to sue. He contended that in the instant case, the negligenGe qlleged in respect of the dismissal of second suit was insufficiently proved. With regards to the learned State Attorney's submissions on ground 9, the appellant submitted in reply that he had not at any stage in his submissions conceded giving directions to Mr. Dea Ringia. "That :in any case he had no capacity to act whether by appearing in court, or giving briefs because he had no valid practicing 26 . -- - ~----.......-... --- ------- ---

..... certificate .. The .appellant reiterated that Mr. Ring(a's denial o{ being under the 2nd Respondent's instructions needs independent evidence for it to be. acted upon. In fact the appellant submitted that the issue was the dismissal of the second suit, whose existence has not been proved, not the one withdrawn by Mr. Ring.la with the 2nd Respondent's consent when well aware that the Appellant was suspended. We propose fo deal with grounds 1, 21 3, 5, 6 and 7 which are procedural followed by the remainlng grounds. On the first ground of appeal, it is contended that there was no application filed in the prescribed form .and supporting affidavit. The question is whether a formal application supported by affidavit is necessary. The answer to this lies under Section 13 of the Advocates Act, Cap 341 which provides as follows.: 11 S.13 (1) The Committee shall ha.ve jurisdiction to heaiand determine - (a) :any application by an advocate to procure the removalof his name from the Roll; (b) any application by any person to remove 27 the name ofanyadvocate .from.the Roll; or (c} any allegation ,ofmisconduct made against any advocate by any person. (2) Where an application or allegation of misconduc;t is made underparagraph {bJ orparagraph (c) ofsubsection (1)/ the , .... Committee $hall have power to require the advocate in respect of whom such appiication is made, orin respect of

whom such a/legation is made, to show cause why·his name should .not be removed from .the Roll of advocates or to answer the allegation mad!!/ as the case maybe: Provided that ,where/ in the opinion of.the Committee; an application ondet paragraph {b) of sJ1bsection (1)/ or an allegation under paragraph {c} of the subsection does not disclose a prima tacie case, the Committee may refuse .such application or may dismiss the allegation without requiring the advocate to whom .the applica.tion or allegation relates to show cause why his ni!lme shouldt1ot be removed from the Roll or to answer the 28 ........· ·················· · · · · - - - · -············-····-·········· .•... ········•······ allegation .as the case may be. ,. (3) On the hearingofanapplication-under. paragraph {b)ofsubsection {1) or.any allegation under paragraph (c) of that subsection - {a) the -Committee shalf give the advocate to whom the .application relates oragainst whom the .allegation is made an opportunity to appear and be heard by it and for that purpose shall, not less than seven :day before the date fixed for the hearing, inform him of such date and-ofthe-patt:iculars of the application or allegation, furnish .to him a copy of any affidavit.made in respect of the application or allegation, a11d notify him of the time and place when. and where he may inspect and make a copy of any other document in the

possession of the Committee which it deems relevant to the application or allegation; {b) the Committee may in the course .of the hea.ring; hear such witnesses and receive such documentary evidence as in its opinion 29 · ·: may assist it in coming ta a co11clusion as to the truth or othetwise of any allegation · made against the advocate''. It is noted under Section 13 (1) (c) of th.e Advocates .Act the Committee has jurisdiction to hear and determine not only formal applications for the removal cf an advocate from the. roll but a·1s0 any allegations of misconduct made against any advocate by any person. The provisions of Rule 3. of th.e Advocates (Disdplihary and Other Proceedings) Rul.es apply to formal appl.ications under S.13 (1) (a) and (b) and not to an allegation of misconduct made against an advocate under S.13 (l) (c) as it was in this case. The Rule provides as under: "13 (1) The Committee shallhavejurisdietion to hear and determine {a} ,,1·•···· ••.•..•••••••:,,, .,, ····-··••··•·•:·••.-~····· •• '!NA {bJ .. ······ ·. ··•·• ••-•·•·· .. Ill•·••···''"'"*••·.·-·· •• -.-NA {c) Any allegation ofmisconduct made against any advocate by any person" 1t would appear that with due respect to the Co111m1ttee, it was a mi,sdirection to refer to the proceedings before it as an application 30 rather than an allegation of misconduct against an Advocate. However, we do -not think

that this misdirection occasioned a failure of justice because the appellant was served with a copy of the complaint letter and required to answer as required by S.13 (2) of the Act. _,, ..... It is on the basis of the foregoing that we find the •first ground of appeal to have no merit and dismiss it. By the same token and pursuant to the proviso to sub-section 2 of 5.13 above quoted, we find the second ground of appeal to have no .merit because the letter of complaint constituted prima facie case which enabled the committee to proceed with the hearing of the complaint. The ground is accordingly dismissed. Since we have held that no formal application was required and that the appellant was served With a letter of complaint, the complaints in the third ground that he was not served with an application supported with an affidavit is misconceived and without merit. Consequently, this ground is also dismissed . As for ground five, it has already been found that a formal tomplaint was unnecessary in the circumstances and that service of 31 the letter of complaint was sufficient. As such, this ground is also found to have no merit. In the sixth ground the appellant contends not to have filed a defence but a reply to the letter to the Tanganyika taw Society. Again, we find this a misconception in that as already found, the Committee has power to require the advocate to answer

the allegations made against an advocate by ·way of a complaint. Subsection 3 (a) of section 13 give the Committee power to give the Advocate the opportunity to appear and be heard. There is no requirement where there is no formal application for an advocate to file a defence by way of Counter Affidavit. In our considered opinion the Advocate's reply and any evidence he would have given had he entered appearance constitutes a defence. The sixth ground is therefore found to have no merit and dismissed. Likewise, we cannot be deta:ined by ground seven because we note that the appellant is still t~lking of a formal complaint when as we have already _held, there was no need for a formal application .. The ground also crumbles and accordingly dismissed. 32 , ' On the ·fourth ground of appeal, we note that the Committee found .no reason to doubt the veracity of the complainant and Deo Ringia. This is what the Committee said in part: "Dr. Lamwai had not appeared before the Committee to defend himself against the complaint·though duly a.ware of the date of hearing. In the absence of any ,defence by Dr. Lamwai before the Committee and given the :e.vidence adduced by the complainant and Deogratias Ringia on what had transpired, the Committee issatisfied that the complainant had indeed instructed Dr. Lamwai to represent him in court and that Dr. Lamwai failed to render legal services of

representing the complainant in his case, leading in the dismissal of.the complainant's case. " That said, we can on'ly say that as appellant was afforded an opportunity to raise this ground during hearing and defaulted to appear, he cannot be heard to· raise it on appeal. That found, this ground ls also dism·issed. For the same reason, it is apparent that the appellant is trying to raise defence in ground 8 just ,as in ground 4 which we are not 33 prepared to accept. In which case, we find this ground to have no merit and dismiss it. Ground nine which relates to lack of ·corroboration of Deo Ringia's evidence is found to have no merit because it was amply corroborated, if at all corroboration was needed by complainant's evidence. In view of this, we also find this ground to have no merit and proceed to dismiss it. In ground 10 the Appellant submits that the Committee had no jurisdiction to order that he pays a refund .of Tshs.25,000 1 000/= to the 2nd Respondent when the latter had spent nothing and the suit was dismissed. The Appellant argued that it is not necessary that When a suit is filed the plaintiff succeed whether in part or in whole. ·-· that in any case no evidence had been given and adjudicated upon by the civil court. It was the Appellants submission that the Committee's powers to order compensation are contained in section 13 (4) (5) of the Advocates Act Cap 341

RE 2002. That since the provisions refer to costs as opposed to monetary claim, the Committee exceeded its powers, so the order should be .set aside. 34 The learned State Attorney submitted that it was, the Appellant who drew the claim for 2nd Respondent, no doubt knowing there was enough evidence to prove the amount. He submitted that section 13 .(5) of the Advocates Act gives the Committee unlimited powers depending on the nature of the matter. The Committee had indeed found the Appellant guilty of misconduct and had convicted him under section 13 (l} (c), 13 (2) and 13 (4) of the Advocates Act. It went on to grant the Complainant's prayer of refund of Tshs.25,000,000/= which he was claiming from the Attorney General and the Inspector General of Police in the case that was dismissed. In granting the prayer, the Committee reasoned that: "Since the Complainant cannot open up a fresh case in court, it means he has lost the _amount he was claiming for in bis case which was dismissed due to Dr. Lamwai's negligence. The Committee holds that Dr. Lamwai should refund the Complainant the,amount of Tshs.25,000,000/= he was-claimin_g for in the dismissed case, 0 35 - - - - " " " ' " " " " " " " ' " " ' " ~ O M • - - - - - - - - U M.. •Mu,m"•M""""' ..........................•-•""""'"""'"'"'""'•"MHO• ............•oMm•M•OM'•'"'"""""""'"'""""""""' ,.,,, ..,, .,.,,.., ...., .................

.,.,.,,,..,,, ... •• - Clearly, from the_ above quotation, the court trying the. t 1d Respondent's civil case having dismissed it, th.e claim in it cannot be said to have been granted. Looking at the true meaning of the word 'refund' we feel that the -word was misused. The Oxford Study Dictionary we consulted defines the word 'refund' as: "to pay back ( money -received ot expenses -that .a person has incurred" or money refunded" or repayment". Thus, to "refund" Tshs.25;000,000/= , would imply that the amount was incurred by the 2nd Respondent in pursuing the matter or indeed the · case that was dismissed. There is no .evidence that the 2nd respondent ;expended that money so assuming that the committee had powers to issue such an order, .unfortunately, it had no basis. The powers of the Committee to make an order as to payment by any party are contained uhder S.13 (4) and ·(5) which provides: "13(4) Upon conclusion ofa hearing subsection 3, the committee may, if it is satisfied of the truth of the a/legations upon which an application under paragraph (b) of subsection (1) is founded or any allegation ·of misconduct iriade against the advocate- 36 a): . •·~ ............ !' ••••••.••••••••• -: • •.•.•.• .•.•.• •.• • •. •.•.• N / A b) admonish -the advocate; ()r c} suspend th.e advocate from pr:actising for such period as the committee may direct. {SJ In any proceedings under this

section the Committee shall .have power .to make ,any such order as to payment /Jy any party of any costs or witness expenses at it may think fit, and any such order shall be deemed to be an order of the High Court and may be enforced in like manner.'' The provisions restrict the committee to make orders as to 'any cost or witness expenses' together with admonition or suspension. After .. dU'e consideration of the above provisions, we feel 1 with unfeigned respect to the Committee, that it had no powers to grant a refund of Tshs.25,000,000/=. We therefore uphold the :ground 10 and consequently quash and set aside· the -Order to refund the· complainant Tshs.25;000~0O0/= As for ground 11, we find it .irrelev~.nt as nd damages. were awarded by the :Committee. It is accord·ingly dJs.missed. 37 .. - • OMM H --H-HH•MH - · ....................... , ... • • " ' " " ' " ' " " " " " " ".. ' " ' ,... ohMmMOM•-•H•mH ,, O no''"'"''' • 0 •• ,,,. ' " ' ' " " ' ' " ' ' . As a matter of reco'rd, we wish to point out that to our knowledge there is noS-13 (4) (v) .of the Advocates Act Cap 341 RE 2002, as has been cited by the appeUant in his submission. The appellant's plea in ground 12 relates to the frnding of misconduct by the Committee. The re·asons advanced in support of the 4 th ground were found to be attempts by the appe.llant to raise defence in appeal and we :rejected such attempts. For

the same reasons, we also dismiss this ground. Lastly, the appell.ant sought in ground 13 that one year's suspensTon is excessive in any circumstances. The appellant gives reasons and we are looking at the third and last of his reasons, that is that the Committee did not assign .any reason for the one year's suspension. That regard should have been had to the fact that the matters complained of took place during the period of this suspension. He therefore pleads for a censure rather than a suspension. The learned State Attorney held the view thpt the period wc;3s proper for reasons· given at page 5 of the Committee'sjud~Jment and that the p.owers, .given .to the Comm:lttee under section 1'3 (4} of 38 ,. the Advocates Act were properly exercised for the nature of the · misconduct. On page .5 .of the judgment we venture :to chance that the committee's reason is: · "In the absence of any defence by Dr..Lamwai before the committee and given the evidence .adduced b_y the complainant and Deogratias Ringia on ,what had transpire4 the committee is satisfied that the complainant ha.d indeedinstruct-ed Or. Lamwai to .represent him in court and that Or Lamwai.failed to render legal services of representing the complainant in his case, .leading in the dismissal of the complainant's case. For this reason the committee holds that Or Lamwalisgui/ty of misconduct.._and the committee convicts

Dr.Lamwai...•. " We indeed agree that the Committee has reasoned its conviction of the appellant. The powers of the :Committee are provided for .under section 13 {4) (c) of the Advocates Act which states: "(c) ~uspend the advocate from_ practising for such period as the Committee may d:irect." 3.9 As noted from the ,above provision, the powers of suspension by the committee in relation to the period of suspensio'n are discretionary, and we see no reason to find that the discretion was unreasonabiy or unlawfully exercised. ;Furthermore; the record shows the appellant ,absented himself from receiving judgment therefore denying himself of an opportunity to advance any mitigating factors. such a person should not be heard now complaining that the period of suspension was excessive. We therefore see no reason to interfere with the Committee's orders. ihe ground is found to have no merit and accordingly dismissed. We have considered ground 14, but we do not see any relevance or sense in it, so it is dismissed accordingly; Save for the ground number 10 which has been allowed, the ,appeal ,ls dismissed in its entirety. Costs of this case here and below are to be borne by , the appellant. 40 "-,--,-----,~-.,-,,,~.-~-------,,- ---_;i;,· ~ J U ·. , ·~·?'-:R-UG_A_Z-JA_.,, __,__ ,_., ,-,., ,.,,.,..,.,,,,,..-,.,. ~ , ~ ' ,~~ ' ·. . ' 1;, ·.. : . . '.. .,.,.,..

' 41 --,,--,,,,,--,,-----'""-"""" _ ,,,---' ,,---,,--,_-,,------,,-----,--"""-"' " '""""-"-""-'"" ,, _ L Coram: Mlay, Longway, Rugazia; JJJ For the Appellant Arbogast Anthony for For the 1st Respondent - Mrs stela Kachenye fot For the 2nd Respondent - Absent .c.C. Masebo ·Order: Judgment delivered in the presence of Arbogast Anthony Advocate for the Appellant and Mrs. Stela Kachenya State Attorney for the 1~ Respondent and in the absence of the 2nd Respondent. _,Gll~. J.i.'MtJWl

JUDGE 18/5/2007 J~~:?I M~ H ■-C~S:"ib-~GWAY ,, ......

JUDGE ~/ P-~~:r-- , ,.//u_·_·E y -.A· , / . ./ ,··•'