20071101 TZHC Arusha

• '1 :1 I 1-j j . IN THE HIGH COURT OF TANZANIA ; - I . t AT ARUSHA . I! MISCELLANEOUS CIVIL APPLICATION NO. 2 OF 2004 -I .I [BASED ON HIGH COURT CIVIL CASE NO. 16 OF 88 (85) ] I I , ·MLIMANI FARMERS LTD .............. .l...... :.................... APPLICANT i _. VERSUS . M~. MBAZI SANGIWA.................. L. . . . . . . . :. RESPONDENT . ' I I I RULING .i i R. SHEIKH, J I The applicant MLIMANI FARMffRS LTD is by this application I . seeking the following order: -I "That Mr. Mbazi Sangiwa is , not a represe~tative · of the . i I I Applicant Company and does ncbt have any beneficial interests - . I . in the Applicant Company". The application is brought undir the provisioris of Order III ! 1 rules 1 and 2 and section 95 of the Civil Procedure Code, 1966 and is - . I - - supported by an affidavit sworn by ~rs NAKAZAEL TENGA, learned advocate for the applicant. The apJlication was filed on 26/01/04 . 2 and clearly indicates that it is based on Civil Case No. 16 of 88(85) which was filed in this court. The respondent MBAZI SANGIWA has resisted the application by filing a counter- affidavit. He has also taken objection to the application on a number of grounds. On her point Mrs Tenga has also raised a preliminary objection on the ground that "the respondent's counter-affidavit is a nullity as it was drawn and filed by one Mahatane & Co. Advocates who does not possess a practicing licence." Lengthy submissions were presented by the respective parties on the aforesaid ground of objection raised by Mrs Tenga which I find it necessary to deal with first. It is not disputed that during the material time Mr. Mahatane was practising/acting as an advocate without having a valid practising certificate, that he had not renewed it and that due to that reason he was in August 2004 suspended from practising as an advocate. Clearly Mr. Mahatane by acting as an advocate without a valid practising certificate and business licence was without doubt acting in contravention of the law, as provided under sections 35, 36, 39(1) and 41(1) of the Advocates Act Cap 341 3 R.E. 2002. Indeed this has very serious consequences for Mr. Mahatane. When an advocate purports to act for another when he has no practicing certificate, he commits an offence under section 39(1) of the Act. S. 41(1) of the Act prov.ides. "41-(1) No unqualified person shall act as an advocate, or agent for suitors, or, as such, issue at any summons or other process or commence carry on or defend any action, suit 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." Sections 41(2) to 48 generally provide for penalties in different situations where unqualified persons act as advocates. The question is does Mr. Mahatane's contravention of the law render the counter- affidavit drawn by Mr. Mahatane incompetent? Are the proceedings in which he acted as an advocate during the period when he was "unqualified" to act as an advocate (and thereby contravened the law) incompetent and/or a nullity? I have anxiously pondered over these questions. The respondent is clearly not to blame for the omissions by counsel and/or his counsel's contravention of the law 4 when he was acting for him and therefore he ought not to be penalised for the wrongs committed by his advocate prior to the matter being brought to his notice, and in particular prior to the matter becoming public knowledge upon the suspension of Mr.Mahatane in August 2004. With due respect I cannot agree with Mrs Tenga's assertion that the counter-affidavit drawn by Mr. Mahatane on behalf of the respondent is not valid/a nullity for having been drawn by Mr. Mahatane in contravention of the law. This issue must be considered in a wider context and cannot be considered in isolation. Upholding the objection would have very serious consequences and implications on all proceedings/matters in which Mr. Mahatane (and others like him) acted as an advocate without having a valid practising licence, some of which have even been concluded. It is therefore difficult to know where to draw a line. Certainly to invalidate court proceedings/pleadings of a litigant merely because of the disqualification of his advocate however serious the said disqualification may be would occasion injustice to the litigant and would only result in punishing the litigant for the wrong committed by another, contrary to the rules of natural justice. 5 Justice demands that in such a situation the rights of the innocent litigant/client/party be protected. Indeed this situation is one which fits under Article 13 (6) of the Constitution of the united Republic of Tanzania, which expressly provides for the right of every person to a fair hearing in a court of law. Even were I to take a narrow approach to the matter and confine myself to the effect of Mr. Mahatane's omission to the counter- affidavit herein only, and strike out the counter- affidavit, the innocent respondent would still be entitled to a remedy. Indeed I would have been well disposed to grant him leave to file a fresh counter-affidavit if he is so minded, and would but for the reasons stated herebelow have given him the liberty to do so. The question is, is the application properly before this court? The respondent who appeared in person at the hearing of the application has in his written submissions raised and argued preliminary points of objection, pointing out several grounds which render this application incompetent. This application is based on Civil Case No. 16 of 1985 (88) between the applicant herein and Tanzania Breweries Limited. 6 Clearly the respondent is not a party to the aforesaid suit and for this reason I am in entire agreement with the respondent that this application was improperly based on the suit numbered Civil Case No. 16 of 1985 (88). Secondly Order III rules 1 and 2 of the Civil Procedure Code, the provisions of the law relied upon to move the court to grant the order prayed for is not in my view an enabling provision and cannot move the court to grant the order sought. Indeed the relief/prayer in the Chamber Summons being a substantive relief cannot be granted as an interlocutory order but must be properly claimed in a suit. For the same reason 5.95 of the Civil Procedure Code was wrongly cited. It has been held by the Court of Appeal of Tanzania in the case of Attorney General v. Kaden (1997) T.L.R. 69 that the inherent powers of the court under this section of the Code are invoked only in cases or situations where this court has authority or jurisdiction to deal with the matter or hear the matter and there is no specific provision of law in place. In the instant matter this court has no jurisdiction or authority to grant the relief sought which can only be granted in a suit or a petition under the Companies Act. 7 Besides I find the affidavit deponecl by Mrs Tenga in support is clearly substantially incurably defective as it contains legal opinion and arguments, conclusions and prayers (paragraphs 5, 6, 7, 8, and 9). Indeed I would add that paragraph 7 stating that the respondent is" misrepresenting to the court that he is the representative of the applicant company and had applied to have the decretal amount transferred in his favour" is hearsay as the deponent has not disclosed her means of knowledge or source of information. The effect of these defects is to render the affidavit substantially incurably ' defective. All said and done I find this app,'lication to be unmaintainable being incompetent and misconceived. The application is accordingly hereby struck out with costs. R. SHEIKH JUDGE 3/10/2007 I ( \ \ 8 Ruling delivered this 1/11/2007 in t e presence of Mrs. Tenga I learned advocate for the applicant, the, espondent and Mariam B/C. ~)~·· R. SHEIKH 'I JUDGE 1/11/2007 . ! /mm I ' '