mohamed shaban others vs tanzania electric supply co ltd 2018 tzhcld 46 11 may 2018

IN THE HGIH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 296 OF 2017 MOHAMED SHABAN & 6 OTHERS....................... APPLICANTS VERSUS TANZANIA ELECTRIC SUPPLY CO. LTD.......... ....RESPONDENT RULING Date o f Last Order; 06/04/2018 Date o f Ruling: 11/05/2018 L.L.Mashaka. 3. This is a ruling in respect of preliminary objection raised by the Court suo motu to the application for revision filed by the applicants that it offends the provisions of the law namely Section 44(1) of the Advocates Act, Cap 341 RE 2002. The hearing of that preliminary objection was ordered to proceed by way of written submission and applicants adhered to the schedule but the respondent failed to do so. On the 6th of April 2018 when Ms Batilda Mally, Learned Counsel for the respondent appeared and submitted to the Court that they have not been able to file their reply to the applicants' written submission as ordered by the Court because the 1st applicant had served the submission to their Regional Office at Kibaha. That the written submission was later forwarded to the Zonal Legal Department at Dar Es Salaam along Samora Avenue at a late date on the 28/03/2018 which was the date ordered to file their reply in Court. That after the preliminary objection was raised suo motu by the Court, Learned Counsel did concede to the preliminary objection per se, and prayed not to submit written submission on her part She prayed this Hon. Court to determine the preliminary objection on merit. The applicants submitted that the question of endorsing the name of the drawer in any application was a paramount importance as propounded under Section 44(1) of the Advocates Act [Cap 341 R.E 2002],however applicants argued that under Section 43 of the same Act it was crystal clear that the requirement of endorsement on the name of the drawer is only where an instrument is prepared by any unqualified person for fee, reward or gain. He referred this Court to the case of George Humba Vs James M Kasuka, TBR Civil Application No. 1 of 2005 [unreported], Mroso J.A (as he then was) that:- "Be it as it may. Assuming that section 44(1) in the Advocates Ordinance, Cap 341 o f the Revised Laws is the correct version and it refers to instruments as mentioned in 5.43 (1), we would say that the section deals with unqualified persons who prepare those documents for gain, fee or reward" 2 That by simple interpretation, is that the said provisions of Section 43 of the Advocates Act read together with Section 44 of the said Act, lay mandatory requirement for endorsement of the name of the drawer only where an instrument is prepared by unqualified person for fee, gain or reward whereof under the instant application the documents were prepared by Legal and Human Rights Center Kinondoni Clinic for free without expectations of any fee, gain or reward hence the application does not offend the spirit of Section 43 of the Advocates Act, Cap 341 R.E. 2002 and subsequently is not covered by the provisions of Section 44 of the Advocates Act Cap 341 R.E 2002. The applicants further submitted that in the instant case one does not need telescopic eye to eye that the document was prepared by the Legal and Human Rights Centre Kinondoni under the auspice of legal aid to low income individuals and disadvantaged groups of the community for a variety of legal problems for gratis. Hence was not an unqualified person who is the targeted person in Sections 43 and 44 of the Advocates Act [Cap 341 R.E 2002] thus at a glance the defect for failure to endorse the name of the drawer in an instrument prepared for free is not fatal under the provisions of Section 43 and 44 of the Advocates Act Cap 341 R.E. 2002. That this Honourable Court should endeavor to do justice rather than allow itself to be bogged down by technicalities. The applicants further argued that it is settled principle of law enshrined under Article 107A(2)(e) of the Constitution of the United Republic of Tanzania 1977 that:- 3 "in delivering decision in matters o f civil and criminal nature in accordance with laws, the court shall observe the following principle, that is to say dispense justice without being tied up with technicalities provisions which may obstruct dispensation o fjustice." That justice should not be defeated by technicality that this Hon Court evaluates substantial rights of the applicants. That in the case of General Marketing Co Ltd Vs A.A. Sharrif [1980]TLR 61 at P.65 Biron, J stated that forms and procedures are handmaid of justice and should not be used to defeat justice. Lastly prayed to this Hon Court to continue evaluating the substantial rights of the applicants for the interest of justice. Having gone through the submissions by the applicants which are also with no name of the drawer hence not endorsed, this Court wishes to make it clear that the requirement for endorsement of Court pleadings is for the authenticity of the documents to be relied upon by the Court when dealing with rights of parties. The applicants have submitted partly on what Legal and Human Rights Center is and its role which is not the issue at hand, whether drawn on gratis or not, but it is the authentication of the pleadings. The cited case of the George Humba Vs James M Kasuka TBR [supra], was dealing with Notice of Motion of the appellant which is distinguishable to the present situation, because the drawer had endorsed name of the drawer and only a negligible signature could be noted. This Court wishes to employ the Court of Appeal of Tanzania, decision, a binding authority, from the cases of Ashura Abdulkadri Vs. The Director Tilapia Hotel, Civil Appeal No. 2/2005, CAT at Mwanza [unreported] per Msoffe, JA, (as he then was), where it explained the legal importance of Section 44 (1) of the Advocates Act Cap 341 R.E. 2002 that; "every person who draws or prepares any instrument in contravention o f S 43 shall endorse or cause to be endorsed thereon his name and address; and any such person omitting so to do or falsely endorsing or causing to endorse any o f the said requirements shall be liable on conviction to a fine not exceeding two hundred shillings." The Court of Appeal in the above case struck out the application for being incompetent before the Court. In the case of Lucas A Nzegula (Son and Heir of Zuhura John) Vs. Isaac Athuman and Royal Insurance (T) Ltd, Civil Appeal No 66 of 2008 [unreported] at p. 11 per Mihayo, J , as he then was, held that:- "Two as I have said above, the submissions by the respondent were filed by C&M Advocates. It would appear the advocate who signed as Advocate for the second respondent is one Oscar Epaphra Msechu telling by the rubber stamp used. Now, C &M Advocates is not an Advocate in terms o f section 2 and 6 and 8 o f the advocates Act (Cap 341 R.E 2002).C & M Advocates cannot therefore file a document The document must be filed by an individual advocate having the conduct o f the matter "for and on behalf "of C & M Advocates." 5 The Legal and Human Rights Center whether drawing pleadings on gratis or not is not a registered advocate as per Sections 2 and 6 of the Advocates Act as expounded in the persuasive decision above, a decision I subscribe to. I take note that there is a misdirection by the applicants on the interpretation and applicability of Section 43 of the Advocates Act, which provides for the penalty for unqualified persons preparing certain instruments which are provided for under Section 43(l)(a)(b)(c) of the Advocates Act, in which pleadings are not among the said instruments. Any other instruments other than those stipulated under Section 43(l)(a)(b)(c) and (3)(a)(b)(c)(d) of the Advocates Act, the other instruments must comply with the mandatory provisions of Section 44(1) of the Advocates Act, Cap 341 RE 2002. Failure to do so, Section 44(2) of same Act provides that it shall not be lawful for any registering authority to accept or recognize any such instrument unless it purports to bear the name of the person who prepared it endorsed thereon. The applicants have called upon this Court to invoke the provisions of Article 107A (2)(e) of the Constitution of the United Republic of Tanzania (1977), but the same is untenable as the matter at hand is on the mandatory procedural requirement of the law and not a mere technicality. In the case of Uledi Hassan Vs. Murji Hasnein Mohamed, Civil Appeal No. 2 of 2012, CAT at Mtwara [unreported], His Lordship Bwana, JA(as he then was ) held that:- 6 "Article 107A(2)(e) o f the Constitution o f the United Republic o f Tanzania do not in any way command that procedural rules be done away with in order to advance substantive justice. Justice implies fairness which should operate in accordance with set norms in society, i.e. the laws and rules that govern a given society. It is would therefore be dangerous to the rule o f law and society at large that Courts o f Law ignore certain sets o f norms in the "interest o f justice" "public policy " "ejusdem g en eris.... set norms be they substantive or procedural are meant to promote the very interest o f justice. Procedural Technicalities, likewise, assure a consistent application o f given norms. To ignore or simply waive them will bring the whole judicial and or legal system into disrepute. Where this to happen, it will lead to inconsistence with fundamental tenets o f our well settled and respected legal practice, judicial system and values and may raise serious concerns over the very constitutional provisions that we invoke." [Emphasis is mine]. The anomaly is not a mere technicality, but a procedural irregularity which has offend the provision of the law. Section 43 of the Advocates Act is not relevant as it covers unqualified persons preparing certain instruments stipulated under Section 43(l)(a)(b) &(c) and (3)(a)(b)(c)(d) of Cap 341 RE 2002. While Section 44(1) provides for instruments to be endorsed with name and address of drawer, which includes the application before this Court. In the circumstance, this application for revision is incompetent and is according struck out of the Court register. For the ends of justice, I grant the applicants leave to file a competent application for revision within 14 days from today. It is so ordered. <7 JUDGE 11/05/2018 8