20041027 TZCA Arusha 1
The appearance of Eliuther Philip Kweka as attorney for Anna Makanga contravened Rule 28(1) because he is not an advocate; therefore, the notice of motion was incompetent and struck out.
Source-derived case information.
- Citation
- 20041027 TZCA Arusha 1
- Parties
- Applicant: Eliuther Philip Kweka (Attorney of Anna Makanga); Respondent: Grace Woiso (Legal Representative of the Late Dr. Paul P. M. Ibreck)
- Court
- TZCA
- Jurisdiction
- Tanzania
- Judgment Date
- 27 October 2004
- Procedural Posture
- Civil Application / Application for Stay of Execution Pending Appeal
- Outcome
- Notice of motion struck out with costs
- Legal Topics
- Stay of Execution, Right of Audience, Representation by Attorney
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliuther Philip Kweka (Attorney of Anna Makanga)
Applicant
Grace Woiso (Legal Representative of the Late Dr. Paul P. M. Ibreck)
Respondent
Procedural Posture
Civil Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether Eliuther Philip Kweka, as attorney and not an advocate, could appear on behalf of Anna Makanga under Rule 28(1) of the Court Rules
Ratio Decidendi
The appearance of Eliuther Philip Kweka as attorney for Anna Makanga contravened Rule 28(1) because he is not an advocate; therefore, the notice of motion was incompetent and struck out.
Court Disposition
Notice of motion struck out with costs
Orders
- Notice of motion struck out
- Applicant to pay costs
Full Case Text
Judgment text and source record
1 paragraphs
.,' i ~\· '. ,. l'- ' ,.. . "::"" IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 19 OF 2001 -' 'BETWEEN ELIUTHER PHILIP KWEKA (Attorney of Anna Makanga) ........•....................... APPLICANT AND GRACE WOISO (Legal Representative Of the Late Dr. -Paul P. M. lbreck)............_........"....... RESPONDENT (Application for Stay of Execution from the Decision of the High Court of Tanzania at Arusha) -'(Munuo, J.) dated the 26th day of February, 2001 in Misc. Civil Application No. 64 2000 RULING ---------·-- ------·------- NSEKELA, J. A.: One Eliuther Phillip Kweka filed a notice of motion under Rule 9 (2) of the Court Rules· seeking an order for stay of execution and cancellation of warrant of attachment pending appeal. The applicant claims to be an attorney of Anna Makanga, the judgment debtor. · At the hearing of the application, the said Eliuther Phillip Kweka appeared in person as attorney of Anna Makanga. Indeed paragraph 1 of the affidavit in support sworn by Mr. Kweka reads - "1. That ·I am the attorney of Anna Makanga the plaintiff in Civil Case No. 19/95, therefore I am conversant to the facts I am about to depose." -'_. I Mr. Marealle, learned advocate, entered appearance on behalf of the respondent. On his part, he sought an adjournment since Mr. Lugaziya, learned advucate who was advocating for the respondent, though served, did not turn up for the hearing. Rule 28 (1) and (2) of the Court Rules provides as under - 2 _' I "28 (1) Subject t the provisions of Rule 73, a party to any proceedings in the Court may appear in person or by advocate. (2) A person not resident in the United Republic may appear by lawfully authorized attorney." •. I The appearance of Mr. Eliuther PhiHip Kweka- as attorney for Anna Makanga clearly contravenes Rule 28 (1) above since Mr. ' ' Kweka is not an advocate. The subrule demands that either Anna Makanga should appear in person or by advocate .. In the result, the notice of motion is struck out with costs. •. I DATED at ARUSHA this 2ih day of October, 2004. H. R. NSEKELA JUSTICE OF APPEAL 'I ,., .) I certify that this is· a true copy of the inal. \ .' I 4 ~,.