selina gadiye

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 26996 OF 2023 (Originating from Application No. 15 of 2023 of Mbulu District Land and Housing Tribunal of Mbulu at Dongobesh) SELINA GADIYE................................................................. APPELLANT VERSUS BOAY LAWALA HOTAY................................................. RESPONDENT JUDGMENT 21st February and 12th April 2024 MIRINDO, J.: In 2018 the respondent, Boay Lawala Hotay, purchased a plot at Hasama Village in Mbulu District Court under a sale agreement witnessed by a commissioner for oaths, Advocate Abdallah Kilobwa. In 2023, Mr Kilobwa acted for the respondent in a suit against the appellant, Selina Gadiye before Mbulu District Land and Housing Tribunal and the Tribunal held in favour of the respondent. 1 Selina Gadiye has appealed to this Court on three grounds of appeal but owing to the nature of the first ground of appeal, I will not address the second and third grounds. In her first ground of appeal, the appellant complained that it was unlawful for Mr Abdallah Kilobwa to represent Boay Lawala Hotay before the Mbulu Tribunal because the disputed land pertains to the sale agreement he had attested as a commissioner for oaths. The appellant argued that the representation by Advocate Abdallah Kilobwa was an act of conflict of interest in contravention of the provisions of section 7 of the Notaries Public and Commissioner for Oaths [Cap 12 RE 2019]. In this regard, the appellant referred this Court to the case of Calico Textile Industries Ltd v Zenon Investments Ltd and 2 Others [1999] TLR 100. The respondent’s argument was that the disqualification of Commissioner for Oaths applied where there was a dispute between the parties to the contract attested by such Commissioner for Oaths. It seems to me the respondent was alluding to “actual conflict of interest,” a position which finds support in some precedents of this Court. In view of the position already taken by the Court of Appeal in various decisions, I need not deal with precedents of this Court propounding counsel’s actual interest. The question was first settled by the Court of Appeal in 2000 in the leading case of Registered 2 Trustees Social Action Fund and Two Others v Messrs Happy Sausages Ltd and 10 Others, Civil Appeal 48 of 2000 where the Court of Appeal dealt with conflicting decisions of the High Court on this subject. In this case, the Court of Appeal addressed the impropriety of advocates maintaining their status as advocates where they are parties to proceedings and considered the impropriety from the context of “potential conflict of interest.” In its ruling delivered by Lubuva JA, the Court of Appeal deprecated the practice in the following terms: ... [W]e are resolutely of the view that there is a sound logic in requiring an advocate who is a party to litigation not to appear in his capacity as advocate but as a litigant. The reason is simple, namely to avoid conflict of interest. For instance, in a particular case, if one of the parties to a suit is an advocate representing the parties in the case as an advocate, his role in conducting the case would not be free from difficulty. In such a dual capacity the advocate is likely to be confronted with questions which in our view would more appropriately to be answered by the parties themselves. Thus, the advocate who is also a party to the litigation would find himself in an embarrassing position answering the questions. The Court of Appeal reaffirmed this position in Laemthong Rice Co Ltd v Principal Secretary Ministry of Finance [2002] TLR 389 at 409 where it was held that doubling as a witness and counsel “does not accord with accepted practice.” The Court of Appeal returned to the subject in Hotel Sultan Palace Zanzibar v Daniel Laizer and Another, Civil Appeal 104 of 2004 when it emphasized the importance of advocates not representing parties in cases where they are potential witnesses: 3 In a situation such as this, where the advising counsel may have to be called upon to testify on the contentious issue in which the advocate was involved as counsel for the appellant, it is prudent and good practice for the advising counsel not to appear in court as an advocate for the party. In that case, another advocate would, in our view, be better placed to conduct the case for the appellant in court. The only Court of Appeal decision I know that seems to have adopted a different approach is Rift Valley Co-op Union and Another v Registered Trustees, Diocese ofMbulu’ Civil Appeal 12 of 2007 when in 2010 the Court of Appeal, having failed to find any of its decision on the subject-matter and relied on the High Court decision: We have failed to find any decision of this Court on the matter but we got some High Court cases... In view of the reasons stated in Registered Trustees Social Action Fund and Two Others; Laemthong Rice Co Ltd and Hotel Sultan Palace Zanzibar, it is a matter of potential interest, sometimes referred to as latent conflict of interest that carries weight in determining questions of counsel conflict of interest. The issue in the present appeal is governed by the provisions of section 7 of the Notaries Public and Commissioner for Oaths [Cap 12 RE 2019]. The section states that: No commissioner for oaths shall exercise any of his powers as a commissioner for oaths in any proceedings or matter in which he is advocate to any of the parties or in which he is interested. 4 The judicial construction of section 7 is governed by principles of counsel’s potential or latent conflict of interest rather than actual conflict of interest. One of the early cases in this jurisdiction on the scope of the provisions of section 7 is Project Planning Consultants (T) v Tanzania Audit Corporation (1974) LRT No 10. In this case, the affidavit in support of the defendant’s chamber application was sworn by counsel before another counsel both of whom were employees of the Tanzania Legal Corporation. Tanzania Legal Corporation was the defence counsel for Tanzania Audit Corporation. The plaintiffs counsel objected to that affidavit and Onyiuke J struck out the affidavit because section 7 was designed to avoid potential conflict of interest so that Commissioner for Oaths acts independently. This reasoning was followed in Calico Textile Industries Ltd cited above, where Mackanja J struck out the affidavit in support of a temporary injunction. The applicant’s counsel swore an affidavit before a Commissioner for Oath who was an employee of a corporation that was “a constructive party to the proceedings.” His Lordship Mackanja outlined two circumstances under which a Commissioner for Oaths may be disqualified: (i) as an advocate for parties where powers of Commissioner for Oaths have been exercised by himself or herself; (ii) where there is a conflict of interest. In 2019, the Court of Appeal returned to this issue in Twiga Bancorp Ltd v Grayson Kiondo, Civil Appeal 4 of 2016. The appellant complained at the trial 5 before the High Court that an advocate who attested the signature of the respondent to the loan agreement drew the plaint regarding that loan. The High Court disqualified the advocate from representing the respondent but sustained the pleading he had prepared. On appeal to the Court of Appeal, the appellant complained that it was a misdirection to sustain the pleading. The Court of Appeal adopting the reasoning in Calico Textile Industries Ltd cited above held that the pleadings should have been struck out as well: In the present case, despite having attested the respondent’s signature in the loan agreement, Mr Byamungu proceeded to draw the plaint. In our considered view, that is a clear breach of the provisions of s[ection] 7 of the Act because, by drawing the plaint, the learned counsel acted as the respondent’s advocate while he had exercised his powers as a commissionr for oaths by attesting his client’s signature in the loan agreement. The effect of that contravention was to render the pleadings filed by Mr Byamung invalid. In the circumstances. We agree...that the plaint ought to have been struck out.... The Court of Appeal quashed the proceedings and judgment of the High Court as they emanated from invalid pleadings. What emerges from the review of case law is that Mr Abdallah Kilobwa was disqualified to represent Boay Lawala Hotay before Mbulu District Land and Housing Tribunal. The proceedings before the Tribunal were prejudicial to the appellant and marred by unlawful legal representation to the respondent. 6 That being the case, I quash the proceedings before the Tribunal and set aside the judgment and decree emanating from them. As the respondent’s pleadings before the trial tribunal were not prepared by Advocate Abdallah Kilobwa, I remand the application to Mbulu District Land and Housing Tribunal with an order that there should be retrial before a different chairperson and set of assessors within forty-five days from the date of the delivery of this decision. For these reasons, the appeal is allowed with costs. DATED at BABATI this 23rd day of March 2024 F.M. MIRINDO JUDGE 7