jaha juma jaha v the commissioner for lands and 6 others 2023 tzhc 19753 31 july 2023

IN THE HIGHT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISRTY OF DAR ES SALAAM

AT DAR ES SALAAM LAND CASE NO.90 OF 2015 (Original Jurisdiction)

JAHA JUMA JAHA PLAINTIFF

VERSUS THE COMMISSIONER FOR LANDS pt DEFENDANT THE ATTORNEYS GENERAL 2nd DEFENDANT JUMANNE ALLY MAKAME 3rd DEFENDANT DAFROSACYRIL LYIMO 4th DEFENDANT EDWARD CHACHA MISENYE (An Administrator of The estates of the Late Berneti Chacha Misenye) sth DEFENDANT MWITA CHOGO MARWA 6th DEFENDANT JONAS AKWILINI SWAI 7th DEFENDANT Date of Last Order: 16/6/2023 Date of Delivery: 31/07/2023

RULING F.H. MAHIMBALI J, The plaintiff herein instituted claims against the defendants for the ownership of plot No.443 and 444 in Jangwani Beach - Dar es salaam alleging them to be his and that the re-allocation of them to the 3rd, 4th, 6th and 7th defendants by the 1st and 2nd defendants was improper as per law. He alleged that, he was allocated the parcels of land in the year 1988 1 and 1990 by the then Dar es salaam City Council. At the time he was allocated the plots, he was working out of Tanzania but regularly coming back amongst others checking on his plots. In 2005 When he was in course of securing building permit from the authority, he came to note that the files in regards to his plots were not seen, nevertheless he continued paying the necessaryrent costs. In 2006 the plaintiff discovered that the 1st defendant had changed the numbers of his plots without being notified and worse allocated the same to the 3rd and 4th defendants which plots then were later developed by the 4th and 7th defendants: hence the basis of this suit. In this case, Ms Crescencia Rwechungura learned advocate represented the plaintiff, whereas Mr. Edwin Webiro learned advocate t ) st represented the 1 and 2nd defendants. As with the 3rd defendant, the matter proceeded exparte against him. Mr. Emmanuel Kessyon the other hand, represented the 4th defendant. For the 5th and 6th defendants,

the parties are represented by Mr. Alex Mgongolwa and Dennisy Jacob Julius, all learned advocates. For the 7th defendant, it was Ms Victoria Greqory and Mr. Peter Swai, learned advocates. In establishing his claims, the plaintiff had three witnesses (himself being inclusive). Two witnesses (PW2 and PW3) had fully given their 2 testimonies in court on 19th July 2022. However, PWl (the plaintiff himself) first gave his testimony in the matter on 20th November 2019 where then for some reasons could not proceed with his testimony but resumed on 20th November 2020 which also did not end his testimony , where then he was deferred and paved way for PW2 and PW3. He then " resumed for completion of his testimony on 15/6/2023 to proceed from where he ended on 20/11/2020. Now, in the course of his testimony, suddenly Mr. Edwin Joshua Webiro Learned State Attorney raised a legal concern against M~ Rwechungura learned counsel for the plaintiff on her right of audience. before the court as she has no valid practicing certificate authorizing her to prosecute the case on behalf of the client. Mr. Edwin clarified that Ms Rwechungura had not renewed her practicing certificate since January I 2023 and thus in law she was not allowed to practice as per Advocates Act Cap 241 R.E 2019. Upon hearing this legal ballistic missile from Mr.: . Webiro learned state attorney who also was being supported by

the , " details from TAMS (Tanzania Advocates Management System) which is a' digital system of identifying the legal status of any advocate in the roll , (whether he is authorised to practise law or not), shocked Ms Rwechungura. Being somehow puzzled with the said submission and 3 evidence adduced, Ms Rwechungura took a low profile and prayed for an adjournment until next day so that can consult her certificates and establish before the court boasting herself that she had paid all and the details displayed from TAMS are not correct. In my quick reference to TAMS, it gave me the following details on the legal status of Ms Crescencia Chambey Rwechungura advocate registered with roll no. 593: 1. For 2018 (Jan 1, 2018 to Dec 31 2018), she had no practising certificate, thus not active.

2. For 2019 (Jan 1 2019 to Feb 1 2019), she had no practising certificate, thus not active.

3. For 2020, 2021 and 2022 she had valid practising certificates, I thus active all the time.

4. For 2023 (1st Jan, 2023 to 1t1hJune 2023), she had no practising I certificate, thus not active. On these primafacie evidence, I tasked Ms Rwechungura to establish the contrary evidence to make her valid practising advocate as per our laws: ! On this task, she sought for an adjournment for that establishment. The 7 matter was then adjourned for establishing said the legal concern raised by Mr. Edwin learned State attorney on the next day i.e 16/6/2023. 4 In her reply to the legal concern raised by Mr. Webiro on her legal status to practice law in Tanzania as per law, Ms Rwechungura (on the next date i.e 16th June 2023) presented to the court her renewal certificate , th dated 16 June 2023 (a day the case has been fixed for hearing of the said legal concern as adjourned). She then said, as she had now renewed it with penalty, she is now in the position to proceed with the case. Mr. Edwin upon perusal of the submitted legal practising certificates, argued that from the documents submitted, for the year 2018, the renewal of the practicing certificate was from May 2018 to December , 2018. Therefore in between February 2018 to April 2018 there has been appearance by the plaintiff's advocate without a valid practicing certificate. As regards to the 2023 practicing certificate, shows that the plaintiff's advocate has renewed on 16 June 2023. That means that the previous proceedings

from January 2023 to 15th June 2023 proceeded; before this Court with attendance of Ms Rwechungura without having practicing certificate are invalid. Digesting what is provided under section 39 (1) of the Advocate Act \ (supra), it clearly provides as who should practice law in Tanzania. Therefore, all done by Ms Rwechungura in between were nullity as she had no license to practice law in Tanzania. Mr Edwin referred this Court 5 to the case of Ally Saleh versus Akbar Hammer and Another, Civil Appeal No. 156 of 2016 at page 8. Also, the case of Edson Osward Mbogoro versus Dr. Emmanulel John Nchimbi and Another, Civil AppeaIN~1400f200~ Mr Edwin further submitted that the renewal of practicing certificate f by Ms Rwechengura cannot save the good purpose for the old proceedings f impurified by no practising certificate and cannot be validated by its 'I subsequent renewal. Mr Edwin then pressed for nullification of the proceedings dated on 13/2/2018, 5/04/2018 and 15/6/2023 and thus upon nullification of the case should revert to the position as it was on 12/10/2017. He also prayed- for the costs. Mr. Kessy, Mr. Mgongolwa and Mr Swai, all supported the submission made in chief by Mr. Edwin. However, Mr. Mgongolwa made :~' insistence on the effect of nullity proceedings as per illegality caused by: Ms Rwechungura. That as per the cited case of Edson Osward Mbogoro, ,versus Dr.

Emmanulel John Nchimbi and Another, Civil Appeal No. 140 of 2006, the effect of illegality is nullity. As the Court of Appeal insisted for nullification of the nullity proceedings attended by unqualified r". advocate, this court should not divert from that settled principle. As to .,.' 6 hold otherwise is condoning illegality, which the Court of Appeal itself was not ready to grant. He urged this Court to scrutinize the proceedings properly and establish as to the effect of the said nullity, is there anything left surviving for the well being of the plaintiff's case. They left it to the Court for digest and verdict. A similar view was taken by Mr. Peter 5wai, learned advocate for J th the 7 defendant who added that as per proof submitted by Ms l' Rwechungura herself, there is no doubt that she had no valid practising certificate in some months of 2018 and Jan to June 2023, and largely from 1st January 2023 to 15th June 2023. 50 long as that conduct of practising law is restrictively prohibited by law, compliance to it is not an option but ,\ mandatory. He also insisted that this Court should not condone the 1 illegality but to rebuke it with high volume. Without even being sorry for what had happened and thus regretting to what she erred, Ms Rwechungura seemed to be comfortable and that was in a right track. As to whether she had practising certificate: i by May 2018, she had

nothing to counter. Whether she had a valid practising certificate by 15th June 2023, she had no any counter proof/submission. What much she said in her submission is this, that she had overlooked paying it after being given with the control number: 7 However, Ms Rwechengura emphasized that as she has now paid it with penalty, she is now in a better position to proceed as the penalty has, served as purification of all that was supposed to be done. She also averred that the case laws cited are distinguishable in this case. Since she has paid the requisite penalties, she contended that legalised the defaulted dates, she then pressed to overrule the preliminary objection by the defendants' Counsel. In rejoinder, Mr. Edwin reiterated what he submitted in chief and maintained that as all the proceedings are nullity, this court should order accordingly. Having heard both parties, I have now to determine the objection; by the 1st &2 defendants' Counsel. And the issue is whether the objection has sufficient cause. I have gone through the documents submitted by Ms Rwechenqura and also submission by Mr. Webiro, Kessy, Mgongolwa and Swai on the point. To make the legal concern relevant, I should first make reference to Section 39 (1) of the Advocates Act Cap 241 R.E 2019 which provides for qualification of an advocate. To wit the proviso reads: ''Subject to the provisions of section 3, no

person shall be qualified to act as an advocate unless- 8 (a) his name is on the Roll; (b) he has in force a practising certificate; and (c) he has a valid business licence, and a person who is not so qualified is in this Part referred to as an "unqualified person". Section 41 of the Advocate Act (supra) provides for unqualified person not to act as advocate to wit it reads: "No unqualified person shall act as an advocate, or agent.1 for suitors or, as such, issue out any summons or other process, or commence, carry on or defend any action, suit 1 or other proceeding in the name of any other person or in his own name, in any court of civil or criminal jurisdiction, or act; ";. as an advocate in any cause or matter, civil or criminal. / (2) Any person who contravenes the provisions of this section shall be guilty of an offence against this Act and of contempt of the court in which the action, suit, cause, matter or proceeding in relation to which he so acts is brought or taken and may be punished accordingly, and shall be incapable of maintaining any action for any ." -/ costs in respect of anything done by him in the course of so acting;'", , f- 9 :' and shall, in addition to any other penalty or forfeiture and any r- disability to which he may be subject, be liable on conviction to a fine not exceeding two thousand shillings " It is clear from the records that Ms Rwechungura

admitted that when appeared before this Court on 15 /6/2023, she had no valid' / Practicing Certificate. Whereas it is undisputed that Ms Rwechengura 1 renewed her certificate on 16/6/2023 after the blow of the bomb shelf from the defendants Counsel, yet she insisted that upon paying the' necessaryfees and the requisite penalty, she purified all the previous acts' done by her in the course of the proceedingsof the case which propositiorl, was severely attacked by the defense. That notwithstanding, Ms Rwechengura has not disputed as to whether on 13/2/2018, and 5/4/2018, appeared before this Court with Clean hand since the records show that she renewed her practicing; certificate on 11th May, 2018. The law under Section 39 provides essential criteria to be complied for a person to practice as an Advocate in our Country; amongst them includes the valid practising certificate. Section 41 of the same Act (supra) prohibits for unqualified person to practice without having practicing 10 certificate and it places legal sanctions that such person is liable with the offence and may be punished and condemned to pay costs to the effects. With the case laws cited by Mr Edwin (Islam Ally Saleh versus Akbar Harmeer and Another, Civil Appeal No. 156 of 2016 and the case of Edson Osward Mbogoro versus Dr. Emmanuel John . ") Nchimbi and Another, Civil Appeal No. 140 of 2006), they are

very relevant to the situation at hand as both Courts had been faced with the similar scenario as per instant case, the proceedings thereof were declared invalid as per that nullity. Similar decision was also held in the case of AUA Industrial Group Limited versus WIA Group Limited, Civil Case No 44 of 2019, whereby the Court nullified the proceedings attended by advocate who had no valid practicing certificate and proceeded to order for payments of costs to the effects. t Now it is settled that, advocate whose name has been entered on the Roll is required by section 39 of the Advocates' Act to have in force a valid practising certificate before he practices law in any court in Tanzania/ Such a certificate is only valid for one year and expires on the 31st December next after the issue, and is subject to renewal. It is therefore ,; an offence under section 41 (2) of the Advocates' Act for an advocate to 11 practice law without a valid practising certificate. I wonder if this legal requirement could easily skip the attention of a senior lawyer in the roll like Ms Rwechungura. The position in Uganda to that effect is similar as here in Tanzania, as it were held in the case of: PROF. SYED HUQ versus THEISLAMIC < UNIVERSITY IN UGANDA, CIVIL APPEAL NO.47 OF 1995, where the supreme Court of Uganda, clearly ruled that, a person practicing without valid practicing certificate commits

an offence and thus the proceedings so attended are subject for dismissal The position is different in Kenya,where a person practicing without having a valid practicing certificate, he is only punished by disciplinary ; action even removing his name in the Roll. Seethe case of KYALO KOMU VERSUS FELIX MALITI MULINGATA, CIVIL APPEAL NO. 22 OF 2017. Now, having done my thorough findings from other neighbouring countries, back to the case at hand. As I made clear that Mr. Rwechngura appeared before this Court without having a valid practicing certificate on 13/2/2018, 5/4/2018 and 15/6/2023, by so doing she committed an . offence and is liable under Section 41(2) of the Advocate Act Cap 241 R.E 2019. 12 r All this said and done, the next issue to be determined is what is the effect of the proceedings attended by MS Rwechengura without having valid practicing certificate. I have thoroughly gone through court records in respect of this case and find that on the relevant dates in dispute i.e on 13/2/2018 and 5/4/2018, when the matter came before this Court, it was adjourned for some inevitable reasons by the plaintiff's counsel. This in my view, led to the existence of the case in the registry unlawfully. Though there were no pleadings filed, but the prayers made by Ms Rwechungura in the further , survival of the case vitiated the proceedings. As the prayers were granted by the Court,

it follows therefore that the subsequent proceedings thereof are nullity as they stem from nullity background of the proceedings dated from 13th February and April 2018 in which the plaintiff's counsel had no , legal mandate to address the court. Similarly, the material proceedings dated 12th November 2019, 19th July 2022 and 15th June 2023 are also in One way propped from the illegal proceedings dated 13/2/2018 and. 5/4/2018. Similarly, they are significantly affected by that nullity. The court records establish that when the matter proceeded on J 12/11/2019, PW1 was partly heard and his testimony then deferred and 13 his testimony was not closed to the effect. The case also proceeded on 19/7/2022 where PW2 and PW3 were heard. It is only when on 15/6/2023 when the PW1 proceeded with his testimony from when he last testified, when Mr. Webiro raised this legal concern which by its outset appeared to be a legal ballistic missile to Ms. Rwechungura. In my considered view, what then transpired on 15th June 2023, largely bombed the plaintiff's case. As the whole of that proceedings has been bombed by illegality of the plaintiff's advocate practising law l without valid practising certificate, I find my hands tied up to do otherwise as far as the justice of this case demands. This now reminds our court system to establish an auto scrutinising mechanism to detect the legal status of a

practising advocate appearing in our court to display his legal status. With the long dream of e-judiciary, i I think this is possible as all systems can be integrated and thus reading each other for early detection and action. Such situations will be a historv in our country. In the current case, I feel very sorry for a party loosing a case amongst other things on the inaction of an advocate just for failure to renew her practising certificate. 14 Furthermore, there is no evidence from both sides that Ms Rwechungura in the year 2015, 2016, 2017, 2020, 2021 and 2022 had no valid practicing certificate and thus appeared to represent the plaintiff without clean hands. I so hold because the matter was instituted before this Court on 12 October, 2015 to date is pending before the Court. On what is the way forward, Mr. Edwin argued that the case status ) should be reverted to the position as it was before 12/10/2017. In my considered view I am not in legal agreement with the ) argument of Mr Edwin on the essence that, there is no evidence in records that there is nothing material that impurified the court proceedings in. between since the filing of the suit in the year 2015 save for February and April proceedings of 2018. Conversely, had there been proof that there" were relevant proceedings such as filing of necessary pleadlnqs, documents or prayers relevant to the progress or

otherwise of the suit, Mr. Webiro's argument would have carried sense. Unfortunately, there is \ no that evidence. This suggests the plaintiff's suit proceeded in 2016,' 2017, 2020, 2021 and 2022 by Ms Rwechungura with a valid practicing' certificate. Therefore, there is no good base to fault the other proceedings' in the absence of contrary proof. What is clear according to the record, it is undisputed that the said Ms Rwechungura practised law illegally for 15 proceedings dated 13/2/2018 and 5/4/2018 and evidence given by PWl on 15/6/2023 as she did so without being in possession of valid practising certificate. By doing that, she illegalised the said proceedings. As what is the effect of the said illegality, the Court of Appeal in the case of Edson Osward Mbogoro versus Dr. Emmanuel John Nchimbi and Another, Civil Appeal No. 140 of 2006 while relying of the majority decisions of the Supreme Court in England was of the firm stand that an advocate who practiced without a valid practicing certificate, practiced law illegally and that all proceedings taken by such advocate and documents signed by' .. him/her were invalid. To say otherwise would amount to a perpetuation of an illegality. To that stand, the proceedings dated 13/2/2018 and 5/4/2018, 30/01/2023, 7/02/2023 and evidence given b~ PWl on 15/6/2023 are legally invalid before the Court. Equally therefore, the material

proceedings dated 15th June 2023 are not immune from the said illegality on two reasons: first, its proceedings emanate from the first illegality dated 13th February and 5th April 2018. Secondly, the proceedings } t th dated 15 June 2023 are also nullity as it has been established that the said advocate also had no practising certificate on that material date as 16 well from 1st January 2023 to 16th January 2023 when she was bombed by a heavy legal burn from Mr. Webiro. I am in controversy with the preposition of Ms Rwechungura that since she had renewed her practicing certificate on 16/6/2023 with relevant penalties, she is now in a better position to represent the plaintiff and thus validates the default dates which she appeared without having a valid practicing certificate. I so hold because the renewal of practicing certificate is just a compliance of the law and paying penalties is a remedy for the default of delay to renew a practicing certificate on time and it does not cure and validate the offence committed by Ms Rwechungura.: In my considered view, a penalty payment does not serve as purification of the wrongs committed but a punishment for a wrong committed witH a view of not committing a similar wrong in future. In anyway, it does not serve as purification of what ought to have been done. At this point I agree with Mr Mgongolwa that the proceedings proceeded on

those dates are nullity for being illegal as per that legal i status and significantly affected the post proceedings thereof. On the survival of the case after the said faulting, though there is no any pleading filed in between, however there has been consistent prayers made by the plaintiff's advocate on the survivorship of the case and its subsequent 17 hearing of PW1, PW2 and PW3 as emanating from the previous proceedings (Le 13/2/2018, 5/4/2018, 30/01/2023, 7/02/2023; and between 1st January and 15th June 2023 being inclusive). In my considered view, those proceedings including that of 15th June 2023 cannot legally survive. The situation would have been similar had there been pleadings filed in between which for sure would have been affected by the said illegality. What is legally affected is all proceedings taken by such advocate and documents signed by her in between as they all become invalid. To hold otherwise, would amount to a perpetuation of an illegality. That said, the illegality of the said legal practice by Ms Rwechungura in the context of this case has affected the whole post proceedings mentioned above which in essence make the remainder of the case not intact and thus un surviving. I thus expunge those relevant material proceedings and therefore remain with the position it was prior to the first illegality committed on 13/2/2018. Having expunged them, what is

the status of the case, in my findings and the thorough research I have demonstrated herein above, I have to rule out that since 13/2/2018, 5/4/2018, 30/01/2023, 7/02/2023 and 16th June 2023 when the matter came for hearing before this Court, 18 proceeded unlawfully, the same has the illegality effect the subsequent proceedings. The 15/6/2023 proceedings just triggered the previous proceedings. Since the effect of illegality is founded on law, compliance to Section 40 of the Advocates is not a matter of an option but of legal strict compliance. The said law (section 40 of the said Act) provides: Every advocate who has in force a practising certificate may practise as an advocate in the High Court or in any court subordinate thereto constituted under the Magistrates' Courts Act * and may perform any of the functions which, in England, may be performed by a member of the Bar as such or by solicitor of the Supreme Court of Judicature as such; , . [Emphasis added}. Short of that, the advocate whose name is in the roll but has not renewed his practising certificate is legally barred from practising law in Tanzania } as stipulated under section 41 of the Advocates Act (supra) as he/she is, unqualified person in law pursuant to section 39(3)c of the Advocates Act. From the record, I find nothing relevant to make this suit case' survive and inhale the legal services bestowed. I must

conclude that, the legal issue raised is sustained and the whole of the plaintiff's case hereby; 19 collapses for propping on illegality proceedings as conducted by an advocate who practiced law without a practising certificate, and that all proceedings taken by such advocate and document assigned by him/her were invalid. Since any person who contravenes section 41(2) of the Advocates Act shall be guilty of an offence of contempt of the court, the plaintiff is accordingly advised to take appropriate course against her lawyer for that gross negligence. This also serves as a reminder warning to other practising advocates who do so without renewing their practising certificates and business licenses in the country. That said, the plaintiff's case is hereby dismissed on illegality of , proceedings. It so ordered. DATED at DAR ES SALAAM this 31st day of July, 2023. ~ F.H. MAHIMBALI ------

JUDGE 20