ndaliu a madoti vs hoseni k sumbuguma 2012 tzhclandd 13 24 february 2012

IN THE HIGH COURT OF TANZANIA [LAND DIVISION]

AT TANGA LAND CASE REVISION NO.8 OF 2010 [From the decision o f the District Land and Housing Tribunal o f TANGA District at TANGA In Land Application No.177 of 2010 & appeal No.177/2009] NDALI A. MADOTI........................................ APPLICANT

VERSUS HOSENI K. SUMBUGUMA........................... RESPONDENT Date of last order: 27.10.2011 Date of Ruling: 24.02.2012 it

RULING Teemba, J; The applicant, Ndali A. Madoti, filed this application seeking for the following reliefs:- 1. That the Ruling and proceedings in Misc. Application No.177 of 2010 and Appeal No.177/2009 respectively be revised.

2. That the application No.177/2010 be heard an merits for determination.

3. That any other orders the honourable court may deem fit to make. l 4. That costs of the revision to be born by the respondent. The application is made under section 43(l)(b) of the Land Disputes Courts Act 2002 and the same is accompanied with the Affidavit deponed by Ndali A. Madoti the applicant. The respondent was duly served. On 14/4/2011, the respondent through the services of Mrs Kabwanga, learned counsel, prayed for extension of time to file the counter Affidavit. The prayer was granted and the learned counsel was ordered to file the counter - affidavit on the same day. Mrs Kabwanga complied with the order. A copy of the counter - affidavit was served to the applicant and on 15th April 2011, his advocate, Mr. Msakamari filed a reply to the counter affidavit. Later on, on 18th April, 2011 Mr. Msakamari, the counsel for the applicant filed a notice of preliminary objections couched in the following words:- 1. That the counter - affidavit is hopelessly time barred.

2. That it is bad in law for the respondent to be represented by the advocate who attested the previous applicant's affidavit. Parties were allowed to argue the preliminary objections by way of written submissions. Mr. Msakamari, learned counsel argued the first preliminary objection contending that the counter - affidavit was filed without seeking the leave of court and that the same was filed out of time. In that regard the learned counsel stated that the counter affidavit was hopelessly time barred and therefore urged the court to dismiss the same with costs. As to the second preliminary objection, Mr. Msakamali stated that on 1st December, 2009 Mrs Kabwanga attested Misc. Application No. 177 of 2009 which was filed by the applicant in the District Land and Housing Tribunal. For that reason, Mr. Msakamali submitted that Mrs Kabwanga is still the witness of the applicant in this matter. Mr. Msakamari submitted that the law bars Mrs Kabwanga from representing the respondent. In conclusion, the learned counsel stated that Mrs Kabwanga advocate cannot represent the respondent in this matter which she acted as the commissioner for oath. In reply, Mrs Kabwanga advocate, insisted that the counter - affidavit was filed in time. As regards the 2nd preliminary objection, the learned counsel submitted that Mr. Msakamari did not, attach the alleged attested 3 application. In conclusion,

she urged the court to dismiss the raised preliminary objections. In rejoinder, Mr. Msakalari insisted that the counter - affidavit was filed after six months and as the same was filed without the leave of the court it should not be acted upon. Having analysed the submissions of the parties arid carefully read the record I am mindful that the respondent filed the counter affidavit out of time. However, the question to resolve is, did the respondent seek the leave of the court to file the count - affidavit out of time? The order of this court dated 14/4/2011 is self explanatory and without any ambiguity. First, the two learned counsel were both present in court for the first time during the pendency of the application. Knowing that the time to file counter affidavit had expired, Mrs Kabwanga requested for leave to file the same out of time. Second, Mr. Msakamari who was present did not object to the prayer. Instead, he requested for service so that he could file a reply to the counter affidavit. An order to that effect was then made. Thus, his objection that the counter affidavit was filed without leave of court is unfounded. It has no merit and it is dismissed. As for the second objection, there is no record to show that Mrs Kabwanga attested the applicant on 1st December 2009. The alleged affidavit is not attached to support the objection. However, upon perusal of record in

Appeal No. 177 of 2009 in the District Land and Housing Tribunal, it came out clearly that on 18th June 2010 Mrs Kabwanga attested the Applicant in his affidavit to support the chamber summons in an attempt to set aside the dismissal order. The affidavit is signed and stamped by M.W. Kabwanga, of Update Law Chambers. Mr. Msakamari submitted that according to the Compendium of Codes of Legal Practice, Conduct, Ethics and Etiquette in East Africa [Law Africa Publishing Ltd] Nairobi, Kampala, Dar es Salaam pg.74, the commissioner for oath may not act in proceedings in which he/she has acted as an advocate to any of the parties to that proceedings or in which he/she is interested. He added that: "Similarly an advocate can not represent a party in a matter which he/she acted as the commissioner for oaths." 5 Although I did not get the copy of the publication referred to by Mr. Msakamari, in principle I agree with him that to represent a party in proceedings involving another party whose affidavit was attested by the same lawyer may amount to conflict of interest. I am not sure if Mrs Kabwanga will be a witness or not but if this happens, then she will caught in the wells. For this reason, she is disqualified from representing the respondent in this matter. In the event, the respondent is free to look for another lawyer to represent him. He is also allowed to amend the counter

affidavit if he so wishes. In the upshot, only the second preliminary objection is sustained. However, in the circumstances of this matter, I allow each p a rty Jto J^ a co w n cots in respect of the preliminary objections. ,< a - n ' / , * / ' It is so otciered. SGD: R.A. TEEMBA, J. 24/2/2012 I h&’efciiskceEfetfy :hat this is a true copy of the original. DISTRICT_____ d is t r ic t R E G IS T R A R H IGH C O U R T O P TA.N2AN1A. TANGfi . 6