MOHAMED MKALI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 3050 OF 2024 (Arising from the decision ofthe Advocates Committee at Dar es Saiaam in AppHcation No. 07 of2023) MOHAMED ALLI MKALI(ADVOCATE) APPELLANT VERSUS EDWARD W. K. BEJUMULA RESPONDENT STELLA N. BEJUMULA 2^0 RESPONDENT JUDGMENT ON APPEAL S. M. MAGHIMBI. J. The appellant, Mohamed Alii Mkali was aggrieved by the decision of the Advocates' Committee and has lodged this appeal raising 6 grounds of appeal as follows: 1. That, the trial Committed erred In law and in facts In deciding the matter before It In contravention of the applicant's Inherent right of fair hearing In his defence. 2. That the trial Tribunal had erred In law and facts In entering, hearing and deciding an Incompetent matter by reason of; i) Being res judlcata 1 ii) Preferred by persons (the respondents herein) who had no locus stand! 3. That the trial Committee had erred in law and in fact in awarding excessive verdicts and some which were not even pleaded or asked nor prayed for by the respondent. 4. That, the trial Committee erred in law and fact in awarding verdict/orders which under circumstances cannot be executed. 5. That, the trial Committee erred in law and in facts it decided the matter basing on matters raised suo motto by the Committee its self without giving parties any right to be heard. 6. That, the trial Committee erred in law and in facts when it decided the matter before it basing on extraneous matters it ought not to take into consideration and thus reaching to the erroneous decisions the way it did. On those grounds, the appellant prays that the appeal be allowed and the decision of the Trial Committee be set aside. The appellant further prayed for any other reliefs this honourable Court may deem fit and just to grant. Before embarking into determination of the appeal, brief facts of the matter at hand are narrated. The Respondents filed a complaint before the advocates committee C'the committee") praying for return of their case file and original documents which was In custody of the appellant. In their affidavit, at para 1, the respondents deponed that, they knew the appellant through one advocate Taher Mucadam. During hearing before the committee, parties briefed the committee on their respective cases pursuant to the provisions of Rule 11 of the Advocates (Disciplinary and other proceedings) Rules, 2018 C'the rules") whereby the respondent averred that, what they wanted Is their case file and three letters that were availed to the respondent/ appellant herein. The appellant replied that the respondents were never his clients but rather they were Mr. Taher Mucadam's clients and that there Is a latter that they gave Instruction, paid fees and where the custodian of the documents was. However, the appellant took trouble to take the case file from Mr. Mucadam and readily availed It to the respondent before the committee. With regards to the three letters, the appellant stated that the documents were tendered In court as exhibits and since the respondent had Intended to appeal, they cannot be available until either the filed notice of Intention to appeal Is withdrawn or the appeal Is determined. The Committee was informed that the documents were not In the applicant's custody but the High Court Land Division at Dar es salaam and no memorandum was ever signed in compliance of rules 11 (1) of the rules. On the 15'^ of day November, 2023 the Committee decided the matter in favour of the respondents on the ground that, the appellant had previously faced several complaints to wit, application no. 11/2018 Wakhil Muro V. Mohamed Mkali, Application No. 8 Of 2018 Lazaro Matunda V. Mohamed Mkali, Application No. 14 of 2018 Wakhil Muro V. Mohamed Mkali, and Application No.18 of 2019 Joseph Juma Bigazi V. Mohamed Mkali, where they all ended up by the appellant's admission and prayed settlement out of the committee thus his conduct is questionable. The Committee then sentenced the appellant to the following sanctions; a) To save one year suspension with an addition of other four years, b) Payment of Tshs. five million (5,000,000/=) as costs for inconvenience caused. c) The appellant to return the documents of the case to the respondent within 60 days from the date of the order and d) Failure to return the documents and pay the 5,000,000/= within 60 days, the appellant will not be allowed to practice for four (4) years. The decision did not please the appellant hence this appe"^ Disposal of the appeal was by way of written submissions. However, it is important to note that it was only the appellant who filed his submission, despite service, the respondent did not appear in court nor filed their submissions. The matter was ordered to be heard eA-parfe against the respondents and hence this ex-parte decision. Submitting on the first ground of appeal, the appellant claimed that, the trial Committee erred in law and in facts in deciding the matter before it in contravention of the appellant's inherent natural right of fair hearing in his defence. That the matter was never called on for hearing in compliance of rule 12 of the rules. What was actually called for is incomplete preliminary brief in terms of rule 11 Of the rules but no memorandum was executed in terms of rule 11 (1) of the rules. The matter was thus prematurely decided. The appellant went on submitting that the committee raised suo motto the issue of previous complaints against the appellant at the time of composing its ruling. His argument was that parties were never given any opportunity to be heard on that raised issue, which issue substantially influenced the decision. That the appellant's "conduct", "not ethics" but "conduct" was questioned on that ground. He supported his submissions by citing the case of Boniface Anyisiie Kajunjumele Mwambulusi Vs Tanganyika Law Society, Misc. Cause No 17245 of 2024 HC DSM at pp 34-24 citing with approval two decisions of the court of appeal of Tanzania, the case of the Managing Director of Kenya Commercial Bank(T) Limited And Albert Odogo vs Shadrack J. Ndege, Civil Appeal No. 232 of 2017(Unreported) and The Case of Lugwisha S/O Ngwinamila Vs James S/O Lugwasha, Civil Appeal No. 195 Of 2019(Unreported) and heid that: - "Jurisprudence is settied that the right to be heard is much more than statutory right. It has become a fundamental constitutional right article 13(6)(a)ofthe constitution, 1977(as amended)". The appeilant further cited the case of Lugwisha S/O Ngwinamila (Supra) where it was stated that: "Even if it was to be assumed, for the sake of argument, that the revision jurisdiction was properly exercised, yet the trial court was bound to afford the parties the opportunity to submit on the issues necessitating revision, ortherwise the decision made in curtailment of the parties'right to be herd is as good as no decision, l/l^e said it very cieariy in the case ofDeo Shirima and Two Others vsScandinavia Express Services Limited, Civii Appiication No 34 Of 2008 (Unreported). The law that no person shall be condemned unheard Is now a legendary. It Is trite law that any decision affecting the rights or Interests of any person arrived at without hearing of the affected party Is a nullity, even Ifthe same decision would have been arrived at had the affected party been heard. This principal oflaw ofrespectable antiquity needs no authority to prop It up. ItIs common knowledge". Arguing the 2"'^ ground of appeal, the appellant contended that the trial Committee had erred In law and facts In entertaining, hearing and deciding an Incompetent matter by reasons of being res judlcata. As It can be seen from the record, he submitted, the respondents had previously lodged the same complaint as deponed at paras 7,8 and 9 of their affidavits supporting the application praying the same reliefs which were finally decided. That the respondents have now brought a new similar complaint praying the same reliefs. That the application was preferred by persons(the Respondents herein) who had no locus standl, citing paragraph 1 of the respondents'affidavit In support of the application before the Committee. He then argued that the respondents were at all material times the clients of Mr.Tahel Mucadam Advocate. To him, the respondents gave their Instruction and paid the relevant professional fees and that the appellant was only Invited to assist the advocate to prosecute land case No. 146 of 2018. The appellant added that It Is Mr. Taher Macadam Advocate who all along was a custodian of the file and all records of the case for and on behalf of the respondent. That the same Is aggravated by the respondent's own deposition at para 5 of their affidavit when they say: "5. Kwamba kutokana na mwenendo wa wakiH huyo ya kutopatikana na kutotupatia taarifa tuHamua kusitisha huduma kutika kwa wakill huyo". He then submitted that It was wrong for the respondent to sue the appellant for records and or Instruction given to another advocate. He argued that the respondent did not Instruct the appellant to take the conduct of their case nor did they pay any fees to the appellant In respect thereof. That there was no advocate client relationship to say but In brief, they had thus no locus standl nor cause of action against the appellant. The appellant defended the third ground of appeal by stating that the trial Committee had erred In law and In facts In awarding excessive verdicts some of which were not even pleaded or asked nor prayed for by the Respondents. That there Is nowhere In the proceedings the respondent prayed to be paid Tshs 5,000,000/= as being inconvenience cost nor did she mention any suspension against the appellant. To the contrary, he submitted, the respondent prayed that "Advocate may assist me to handle the case in case he is ready". That an award of 5,000,000/ in favour of a party who had never paid any single sent as instruction fees to the appellant is far in the unreasonably higher side and uncalled for. Further that the order for suspension under the same facts and circumstances are so much unreasonable, unfair and In excess. With regards to the fourth ground, the appellant argued that the trial Committee erred in law and in facts in awarding verdict/orders which under the circumstances cannot be executed. The appellant was ordered to pay Tshs. 5,000,000/= to a person who never paid a single cent to the appellant. That he was also ordered to give the respondents the requested file and the three documents tendered as exhibits, arguing that the two orders were to be executed in 60 days within the same said suspension time. The appellant being out of business as an advocate, he submitted, he not get any such sum to pay for damages and while suspended, how could not approach the court to retrieve any such document that the respondents needed. In support of the fifth ground, the appellant submitted that the Trial Committee erred in iaw and facts when it decided the matter basing on matters raised suo motto by the committee itself and without giving the parties any right to be head. He reiterated his submission that the court raised suo motto the issue of previous compiaints against the appeliant at the time of composing its ruiing whiie the parties were never given any opportunity to be heard on that raised issue which substantially influenced the decision. Arguing the iast ground of appeai on the Committee deciding on extraneous matters, he submitted that the committee ought not to have entertained them since in doing so made the Committee arrive to an erroneous decision. The appellant finds that the triai committee decided the matter on the ground that the appeiiant had previously faced several complaints aii of which were ended up by settiement out of the committee thus his conduct is questionable and sentenced to save one year suspension with an addition of other four years and payment of Tshs. five miiiion (5,000,000/=) as costs for inconvenience caused to the respondent. In conciusion, the appellant contended that It is an undisputabie fact that, the appeiiant has aiready served almost eight months out of the I®' year of his punishment and is expected to serve aimost a year to the date of 10 this decision. He further averred that returning the matter for retriai wiii serve no just purpose but a wastage of time and occasioning more damages and extra cost to parties. Under the circumstances, the appellant prayed for this honourable court to set aside the decision of the trial committee and allow the appeal. The appellant did not pressing any costs to the respondent for reason that the record of the triai tribunal itself dictates. He conciuded that while it was wrong for the tribunal to entertain the appiication, it had aiso irregulariy and injudiciousiy adjudicated the matter while the respondent has nothing to pay. Having considered the submissions of the appellant, I find it convenient that the first and fifth grounds are determined together while the third and fourth grounds will also be determined together. Starting with the I®' and grounds, the appellant is aggrieved by being denied a right to be heard to be heard on the ground that in its decision, the committee raised some issues suo moto. The right to be heard is well known to be one of the fundamental pillars of natural justice. This right is enshrined under article 13 (6) (a) of the Constitution of the United republic of Tanzania 1977 as amended from time to time. It is trite law and a pillar to administration of justice that before 11 reaching to a just decision, each party before any court a tribunal has to be accorded with the right to be heard and that no one is to be condemned unheard. Looking at the proceedings of the Advocates Committee, the records reveal that the respondent who is the appellant herein was given the right to answer the complaint against him and he did. This can be evidenced at page 1 where the coram demonstrates that the respondent appeared in person on the 14/11/2023 and 15/11/2023. On the 15/11/2023 the records show that the respondent even responded to the claim of the Applicant and was ready to return the requested document together with the costs claimed by the applicant. From the akin observation above as it appears in the records of the Committee, I am certain that the assertion that the appellant was not accorded the right to be heard falls short of merits and ground 1 and 5 ostensibly fail. The fact that the appellant was previously convicted was relevant for the committee to come into an appropriate sanction having satisfied itself that the claims against the appellant were proved. That being the case, the first and fifth grounds are found to be without merits. The second ground of appeal was based on the appellants grievance where he finds that the Court had tried or rather heard a matter which is res judicata. He pointed to paragraphs 7,8 and 9 of the respondents' affidavits. 12 The appellant has averred that what was stated In the affidavit of the respondents is the same matter that has previously been filed against him as can be seen in the records. Since this matter has been filed through eCMS, I have gone through the system seeking for the affidavit claimed to be on record but the efforts turned futile since the affidavit is not attached to the record. It was the duty of the appellant who alleged those facts to attach the said document. With no records to prove these allegations, I find the second ground of appeal to be also without merits. The above notwithstanding, the records are silent on whether the issue was raised by the appellant before the Committee. Therefore the issue of res judicata was pleaded by the appellant herein at this appellate stage hence making it a new factor. It is trite law that that a matter that was not raised during trial cannot be raised at the appeal stage. The position was stated in the case of Simon Godson Macha (administrator of the Estate of the late Godson Macha)vs Mary Kimambo (Administratix of the Estate of the iate Kesia Zebedayo Tenga), Civil Appeal No. 393 of 2019 where the Court held: - "at the very outset, we would like to agree with Mr. Raulendo that apparently, all seven grounds ofappeal raised by the appellant herein 13 are on new issues which were never raised nor discussed in the first appeiiate Court. There is a long chain ofauthorities which have taken the stance that matters not canvassed by the Court cannot be raised'm this Court". Going through the records before me I have not come across a place where the Issue of res judlcata was raised therein, since It was never been raised at the lower Court, I cannot proceed to determine It. I find this ground merltless. Turing to the third and fourth grounds of appeal, the appellant finds that the Committee erred In granting verdicts that were not prayed for by the applicants and that some the verdicts are Inexecutable. That the sanction to pay the respondents a sum of Tshs. 5, 000,000/= cannot be executed because being suspended from practice, he could not make any earnings. The appellant also finds the order of payment of Tshs. 5,000,000/= to be unfair since the respondents had never paid him any fee. I would not dwell much on this ground of appeal for I find that the appellant has misled himself. It Is jurisprudence of the law that verdicts are established by the law and not by the complainant. It Is the principle of the law that an act establishing an offence or misconduct Is the same that 14 provides for the verdict or fine. The iaw has never shifted that duty to complainants and that has never been the practice. Therefore, I find this ground lacking merits. Lastly on the last ground of appeal, it was the appellants submission that the Court entertained extraneous matters which it ought not to have entertained hence reached a wrong decision. I have gone through the records and have found that the complaint against the appellant was in respect of the misconduct of the latter not being cooperative. The Committee in making its decision brought up the fact that the appellant has previously had complaints filed against him of which he admits them and prayed to settle them out of the committee of which it appears such prayers were granted. This Fact at page 3 where the Committee has made reference to complaints of 2018, 2019 and 2022. The Committee used this record in arriving its decision. I find no issue since the committee is for the purpose of hearing applications or complaints against an advocate. It aims to maintain high level standard of integrity and professionalism in the members of this noble profession who are qualified and admitted as advocates. Therefore, the conduct of an advocate is crucial and in deciding on the penalty to be imposed on misconduct, the records of previous misconduct 15 are relevant to assess the severity of the punishment. In this case therefore, I see no reason to fault the committee for using previous conduct since under Rule where they all ended up by the appellant's admission and prayed settlement out of the committee thus his conduct is questionabie. Under the provisions of Rule 35(2) of the Rules provides: (2) Notwithstanding the provisions of sub-ruie (1), the Committee shaii be atliberty to borrow the practice from the Civii Procedure Code Act or the Criminal Procedure Act on matters for which the procedure is not provided for under these Ruies. Therefore under the Rules, the Committee is at liberty to borrow the practice from the Civil Procedure Code Act or the Criminal Procedure Act on matters for which the procedure is not provided for. Having said all of the above upon this appeal I find the appeal without merits and it is hereby dismissed with no costs awarded to the respondent since the matter proceeded ex-parte Dated at Dar es Salaam this 06"^ Day of December, 2024. ^ ' o ^9 t S. M.^AGIMBI ■r> N ,I > JUDGE h / 16