GERVAS NASHON KALIKWENYE VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB-REGISTRY OF MWANZA) AT MWANZA MISC. APPLICATION NO. 6317 OF 2024 (Arising from PI No. 12 of2023 of the District Court ofliemeia District at liemeia) GEREVAS NASHON KALIKWENYE............................................... APPLICANT VERSUS THE REPUBLIC....................................................................... RESPONDENT RULING 19th June & 29th July, 2024 A. MATUMA, J. This is a ruling in respect of the ongoing and growing trend of advocates and their clients being unfaithful and dishonest to courts of law by presenting and filing false documents to the detriment of justice and or for engaging courts in matters which have been fraudulently drafted and dishonestly presented for filing. Briefly, the applicant was arraigned in the District Court of Ilemela for Preliminary Inquiry (PI) of Manslaughter. He was alleged to have on the 19th of April 2023 at Nyamanoro area within Ilemela District in Mwanza Region unlawfully caused the death of Pascal S/O Alex Seni. As the offence is bailable he was fully granted bail pending-investigation and committal proceedings. When the investigation was complete, he was committed to this court for trial but his bail was cancelled. The instant application was thus brought to seek bail pending trial. On several occasions when this application came for hearing the applicant was absent though at all times his advocate was entering appearance insisting that the application be heard even in the absence of the applicant. I suspected unusual pressure in the matter because, at all such time, the advocate of the applicant was in the company of several people who were introduced to the court as being the applicant's relatives. I insisted that the applicant must appear in person to show whether truly he sought bail through this application and whether the people who used to come to court in his absence are his relatives and thus he will be safe at their hands in case this application is granted. As the worry was growing higher, I decided to cross-check thoroughly the pleadings in this matter and suspected that the affidavit purporting to have been sworn by the applicant was actually signed by the person who introduced himself as the drawer. That means it was the advocate who signed the affidavit purporting to be the applicant. In that respect I directed the learned advocate for the applicant to explain whether it was really the applicant himself who signed the affidavit^He simply submitted: "Having drafted the documents, I gave the applicant's relatives to send them to prison so that the applicant signs. They took the documents and later brought them back for me to file in court. I believe they sent them and were dully signed by the applicant. Here is the relative of the applicant who I gave the documents. He is Ruben Gaudence" Since the said Ruben Gaudence was present at the time the learned advocate was addressing the court, I invited him to explain how the documents were signed. He stated; "Z did not witness the applicant signing the affidavit. I did not even receive these documents from the advocate. It was Nashon Kaiikwenye who took them. I did not accompany him to prison for signature" In the circumstances of what transpired from the mouths of the two above, I ordered that the applicant be summoned for him to verify his signature in the affidavit, Mr. Ruben Gaudence who contravened his own advocate, Mr. Nashon Kaiikwenye who is alleged to have taken the documents to the applicant for signature and advocate Kazi nikazi not a true name who attested the affidavit must all appearto put the matter clear. 3 When the matter came for hearing, all the relevant parties as listed above appeared but for the purposes of protecting the dignity of the two dishonest advocates I will use fake names; Mr. Chapu Chapu who drafted the documents and Mr. Kazi ni kazi who attested the affidavit. For the Respondent it was Mr. Christopher Olembile learned State Attorney who appeared. Mr. Chapu Chapu this time did not want to battle the naked truth. He made an apologizing speech; "I appreciate the issue raised by this court. It is true that the applicant is not the one who signed the affidavit. I together with my fellow advocate Mr. Kazi ni kazi apologizes for the mistake done. In that respect the application is incompetent for having a false signature of the applicant. Sisi bado ni mawakiH wachanga na tunaendeiea kujifunza. Tunajuta kwa tulichofanya na tunaomba msamaha.... Truly speaking, it is me who signed the affidavit but I had good intention to fasten his application so that the applicant is bailed out" From this submission you can note out why I decided to call him Mr. Chapu Chapu. He did not want to take the due route because it would delay his purpose. Instead, he chose a shortcut ijjegarroute to fasten the matter. Mr. Kazi ni kazi on his part made this explanation; "In the first instance I pray for forgiveness of what I did. I have no further explanation because as an advocate I ought to be diligent enough. The documents were brought into my office by advocate Chapu chapu. Pamoja na hayo naomba kusema kwamba mimi bado ni wakili mchanga ambaye nina muda mwingi wa kuendelea kujifunza. Nitahakikisha najirekebisha na kutenda kwa ubora zaidi. Naomba msamaha" Mr. Ruben Gaudence and Nashon Kalikwenye on their part stated that they only approached the advocate and engaged him to seek bail for the accused. That the learned advocate told them that he will work out for them. They waited until when they were informed by the learned advocate that the application is already filed in court. They distanced themselves from the forgery of the applicant's signature stating that the learned advocate did not tell them anything relating to signing of the documents. The applicant on his part denied the forged signature but made an apology for the learned advocate because he believed that they committed the wrong in good faith. He had these to say; "I have never signed this application nor any document was brought to me for signature. The learned advocate erred to forge my signature 5 because I am available. I could sign on my own but I believe he committed the wrong in good faith because had my relatives not gone to his office perhaps, he could not have committed the wrong" The learned state attorney having heard the submissions made by other parties as above argued that this application is incompetent. About the misconduct he left it for the court's consideration. Having hear the parties on the matter, I highly condemn the habits of advocates and their clients to dishonestly engage courts of law on matters fraudulently drafted. Good intent isn't a defense for the misconduct because there are legal due processes that can be resorted for without necessarily committing such misconducts. It has been a tendence of advocates to take shortcuts which are in themselves illegal. By doing so, courts of law are dragged to deal with false documents to the detriment of justice. One of the good examples is this case whereas the learned advocate decided to depose and sign the affidavit in the name of the applicant. He did so to mislead this court that it was the applicant who deposed such affidavit while in fact it was not him. Even the applicant as quoted supra wondered why the advocate decided to forge his'signature while he 6 himself is available and could have been approached for signing the affidavit. Mr. kazi ni Kazi also lied in the jurat of attestation that the applicant deposed the affidavit in his presence while it is not true. He was by that attestation misleading the court to act on the false depositions by a false deponent purporting that it was the applicant herein. I am aware of the mitigations the learned advocates made before me that they are still young in the field and thus be forgiven for the misconducts so that they continue to learn more but I have decided to compose this ruling for the purposes of calling not only the two advocates but also other advocates in the country to strictly comply with the law and act diligently and honestly. This is because there is a growing trend of advocates to allow third parties to engage them to pursue matters in the names of parties who are not even aware that there are suits in court in their respective names. Some others are even not alive. I will give few examples; a) In the case of Nyamunini Ntarambigwa versus Simoni kikoti, Misc. Land Application no. 19 of2021 Ntarambigwa was defeated in the suit by Simoni Kikoti. He surrendered to the victory of his opponent and thus did not take any further action. A fake person seeing some opportunity in the matter engaged an advocate to act in the names of Nyamunini to pursue further the matter. The learned advocate and a fake Nyamunini obtained extension of time to appeal out of time but the extended 21 days expired without an appeal being filed. The appeal was filed out of the extended time and thus was dismissed. The fake appellant and his advocate instituted the second application for extension of time and it is when it came to the knowledge of the court that Nyamunini Ntarambigwa himself was not even aware that his name was still in court litigating against Simoni Kikoti. b) In the case of Madushi Nzuki versus Dunia John, Criminal Appeal No. 7 of 2020, High Court at Kigoma, Madushi Nzuki was charged in the primary court of Uvinza for cattle theft. He was however acquitted. Dunia John the complainant was not aggrieved and thus did not appeal. One Chama a third party and without consent or knowledge of the said Dunia John took the acquittal judgment and engaged an advocate to appeal against it in the District Court. They successfully appealed and the acquittal was substituted with a conviction. Madushi Nzuki was thus convicted and sentenced to serve five years jail term. He became aggrieved and therefore appealed in the High court. The problem arosejn the service to the respondent. He was nowhere to be seen. The advocate who previously represented him in the District Court was summoned to assist the court of the whereabout of his client whom he represented in the District Court. The said advocate when made appearance before the court was honest and explained that he did not know the respondent because at the District Court, he got instructed by a third party by the name Chama. The appellant's appeal could not thus proceed because the respondent was nowhere to be seen and served and actually was not aware whether after the judgment of the trial court, there was an appeal to the District Court. The High Court thus exercised its Revisional Powers to remedy the situation. c) In the case of Daudi Bujenjedeli and two others versus Village Council of Mnanila Village, Misc. Land Application No. 53 of 2020, the real parties Daudi Bujenjedeli, Kobali Mlongo and Kanubu Lekegwa successful sued the village council for compensation. Both parties were satisfied with the decree of the trial tribunal. They village council started the process to compensate the decree holders and managed to settle the compensation with Kanubu Lekegwa. When she was still in the process to settle the compensation with the remaining two decree holders, it transpired that there was an appeal to the high court against the decree. The appellants were the very three decree holders herein above named. She thus stopped the compensation .process pending the determination of the appeal. She informed the decree holders that she could not pay the compensation for they have appealed. It is when the real decree holders became astonished of the appeal because they did not by themselves appeal. They thus wrote to the High court lamenting their names to have been used in the appeal while they did not appeal nor engaged any person to act in their behalf. Kanubu Lekegwa appeared in person at the hearing of the appeal and wondered how could he appeal while he was already been paid fully his compensation. When the court asked the learned advocate who was representing the applicants, he conceded that he did not know them nor had at any time met them. He explained that he was merely instructed by a third party namely Julia Leonard. The high court was thus necessitated to struck out the matter for having been lodged by a third person without locus standi camouflaging herself into the names of the real parties. d) In Misc. Land case No. 11 of 2021, High Court at Kigoma, Eiias Samwel, Frola Raphael and Juma Mvinza sought leave to represent 22 others and were dully granted. They then instituted Land case No. 2 of 2021. When the matter reached a stage of first pre-trial conference, two of the Plaintiffs arose lamenting their names to have been used while they did not have any interest in the dispute property nor they had any claim against the defendants. Upon inquiry; it was found that 'io not only in the application for leave to represent others, but also in the suit itself the plaintiffs were not real. The three plaintiffs had forged the list of claimants by inserting names and caused them to be countersigned. When the plaintiffs' advocate was asked of the anomaly, he explained that he entrusted the first three plaintiffs and directed them to acquire consent of others. As it was difficult to verify the list and ascertain the real parties, the court was necessitated to struck out the suit so that each party to file a separate suit and if need be, consolidation be made in the due course. e) In Evansi s/o Bugale versus Jimi s/o Modesti, Misc. Land Application No. 3 of 2021, High Court at Kigoma, it was the legal officer in the firm of Advocate who signed the affidavit purporting to be the applicant. So, it was an application drawn by the firm of advocate in the names of the Applicant Evansi Bugale, but the said applicant though his name was used in the affidavit accompanying the application, it was not him who deposed nor signed it. The court was necessitated to struck out such application. These are just few examples. It is a growing habit in the country for advocates not to bother with ascertaining and verifying their clients. As such busy-bodies, provided that they have monies, have been engaging advocates to initiate suits and prosecuting them in the names of other people who are not even aware of those Suits. 11 This is very dangerous in the administration of justice in case an adverse order is issued against the party who although appears in the matter but was not aware of the matter altogether. By that time a third party might have gone at large and or deny completely to have acted anyhow in the matter. The respective advocate might find himself necessitated to lie that it was such a victim-party who really engaged him/her just to survive the professional misconduct penalties and survive his/her name in the roll of advocates. In the case of Daudi Bujenjedeli supra the court held for instance; "It is very dangerous for advocates to act on instructions of third parties to a suit or case without knowledge and consent of the real parties. Parties to the suit or case have to abide with the outcome of the matter. Nobody should be made as an applicant or plaintiff unless himselfor his recognized agent so desires". I reiterate the same in the instant matter. What has been done in the instant application is both a professional misconduct on the party of the two advocates. It is as well a criminal offence for one to impersonate the other. In the case of Evansi Bugale supra, the court calling for advocates to be honest to the Court for the sake of justice held; 12 "In terms of the provisions of order VI Rule 17 of the CPC, the duty of the court is to determine the real question in controversy between the parties. In so doing the court needs to be availed with true facts and evidence and the advocates are duty bound to assist the court as such. It is not expected that an advocate duly enrolled in the role of advocates can either by himself/herself falsify the pleadings/documents, or collude with his/her client so to falsify. By doing so the advocate shall be committing a serious misconduct against various provisions of the Advocates Act as well as various regulations of the Advocates (Professional Conduct and Etiquette) Regulations, 2018". I reiterate such holding in the instant application. I draw the attention of the two advocates herein to regulation 92 (2) of the Advocates (Professional Conducts and Etiquette) Regulations 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; /' 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. ii. to assist or permit the client to do anything which is dishonest or dishonourable. Hi. to deceive or attempt or participate in the deception of a court or influence the course ofjustice by offering false evidence. S 3 iv. to present in court a false or deceptive, exaggerated or inflammatory affidavit. v. to assist in any way the commission of fraud, crime or illegal conduct. vi. to permit anyone to impersonate another. All the herein prohibitions have been committed in the instant application. I am tired of this habit and cannot tolerate more. I am not sitting to adjudge on fake documents. I will start taking legal measures in accordance to the powers vested in me by law as a judge under section 22(1) (2) (a) and (b) of the Advocates Act, Cap. 341 R.E. 2019. When such time comes, one should blame nobody, but his or her own misconducts. I will act accordingly to protect the dignity of the court as it was observed in the case of Evansi Bugale supra that; "It is from these fake, false and fraud documents which damage the reputation of the court once they go undetected as the opponent parties would not be positioned to know that courts have been deceived. It is the reputation of the court that would be put into inquiry. The reputation and dignity of the court must therefore be protected..." With the herein observations, I find this application incompetent for having been brought by a fake person impersonating the applicant who appears to have not initiated, drawn, signed oracted on the documents at hand in any manner. I therefore struck out this application. 14 I direct that this Ruling be served to TLS chapter Convenor (Mwanza) for him or her to share it with other advocates in the Region for them to take note that whenever I shall encounter any matter of a similar nature, I will immediately take the necessary legal measures against the respective advocate including suspending his practice and forward him to the Advocates' Committee to be dealt with in accordance to the law. They should thus take necessary steps to withdraw their pending suits or application of a similar nature before they are detected and refrain from instituting others. Life might be tough, yes! Clients might be difficult to get, yes! Busy-bodies might have enough money and paying good, yes! But as an Advocate, let one confine to processional ethics and earn a living 15