attorney general another vs fatuma amani karume 2021 tzhc 9055 17 december 2021

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT PAR ES SALAAM MISC. C IV IL APPLICATION NO. 08 OF 2021 THE ATTORNEY GENERAL.......................................... 1st APPLICANT THE ADVOCATES COMMITTEE ................... .......2 NO APPLICANT VERSUS FATUMAAMANI KARUME........................................... RESPONDENT Date of Last Order: 23.11.2021 Date of Ruling: 17.12.2021 RULING MAGOIGA, J. The applicants, THE ATTORNEY GENERAL AND THE ADVOCATES COMMITTEE filed this application against the above named respondent by way of chamber summons made under section 5 ( 1 ) (c) o f the Appellate Jurisdiction Act [Cap 141 R E.2019] read together with Rules 45 (a) of the Tanzania Court o f Appeal Ruies, 2009 as amended from time to time and section 95 of the Civil Procedure Code [Cap 33 R.E.2019] praying that, this court be pleased to grant the following orders, namely: a. Leave to the applicants to appeal to th e Court o f Appeal o f Tanzania against the judgem ent and decree o f the High Court o f Tanzania at Dares Salaam by Honourable Maige, Nangela and kakoiaki J.J.J. dated 17" June 2021 delivered on 21 June, 2021 in Civil Appeal No. 02 of 2020 arising from the decision of the Advocates Committee dated 23" September, 2020 in application No.29 o f 2019; and b. Costs of this application be provided for; c. Any other re!ief(s) this court may deem ju s t and fit to grant. As usual the chamber summons was accompanied by the supportive affidavit deposed by Mr. George Nathaniel Mwandepo, learned Principal State Attorney stating the reasons why this application should be granted. Upon being served by the cham ber summons and accompanied affidavit, the respondent, through Mr. Peter Kibatala, learned advocate filed a counter affidavit stating the reasons why this application should not be granted. The brief facts o f this application are that, h e respondent hereinabove was before 20" September 2019 practicing advocate with Roll Number 848 in the Roll o f Advocates and was representing the applicant in Application No 29 of 2019 before Hon. Dr Feleshi, Principal Judge. It is alleged tha t in course of the representation o f her client, she committed misconduct and was suspended from practicing and the court, among others, ordered the Registrar High Court to transmit the complaint to the second respondent. Contrary to the court's directives, the matter was referred to Advocates Committee by the Attorney General which after hearing the parties delivered its verdict and found the respondent to have committed misconduct and ordered her removal from the Roll o f advocates. Aggrieved with the decisions of the Advocates Committee, the respondent appealed to the full bench of High Court {composed of panel of three judges). After hearing the appeal, the full bench of the High Court set aside t h e decision of the Advocates Committee and quashed proceedings o f the Advocates Committee. Consequently, the High Court ordered the Registrar, High Court to transmit the complaint to the second applicant in the manner directed by the court when suspending the respondent. Aggrieved with the High Court decision and directives, the applicants preferred this application for leave to go to the Court o f Appeal Tanzania, hence, this ruling. When this application was called on for hearing, the applicants were enjoying the legal services o f Messrs. Deodatus Nyoni and Musa IVbura, learned Principal State Attorneys and Ayoub Sanga, learned State Attorney; whereas the respondent was enjoying the legal services of Dr. Rugemeleza Nshalla, learned advocate. Mr. Nyoni took the floor by reiterating the provisions under which the application was pegged and prayed to adopt the contents o f the affidavit in support o f this application. The learned Principal State Attorney went on to argue that, they have complied with formal procedures for grant of the leave by filing notice of appeal, letter requesting copies o f the proceedings and have preferred this application within time prescribed by law praying for leave which is prerequisite condition to appeal to the Court o f Appeal of Tanzania against the decision o f the full bench o f the High Court. PA. Nyoni pointed out that, in the intended appeal, if leave is granted, they intend to parade 5 grounds of appeal before the Court o f Appeal as contained in paragraph 13 o f the affidavit in support o f the application. In support of the application, the learned Attorneys cited the case of BULYANKULU GOLD MINE LIMITED AND 2 OTHERS vs. PETROLUBE (T) LIMITED AND ANOTHER, CIVIL APPLICATION NO. 364/16 OF 2017 CAT (DSM) (UNREPORTED) in which, among others, the Court o f Appeal of Tanzania insisted and guided the High Court not to determine the merits of the issues raised for grant o f the leave but leave that to the domain of the Court o f Appeal to determine. Another case cited was the case o f REV. SADOCK YAKOBO MLONGECHA vs. REGISTEREED TRUSTEES OF PEFA KIGOMA, CIVIL APPLICATION NO. 12 OF 2016, CAT (DSM) (UNREPORTED) in which, among others, the court granted leave in order to correct the glaring defects in the proceedings. The learned Attorneys equally cited article 13 o f the constitution which allows an appeal as of right and pressed that the application be granted as prayed. On the other hand for the respondent. Dr. Nshalla prayed to adopt the counter affidavit o f Mr. Peter Kibatala and went on to argue that, leave is not automatic but must be exercised where there is arguable case that calls for Court of Appeal of Tanzania's intervention. According to Dr Nshalla, looking at paragraph 13 which contained proposed 5 grounds of appeal as stated were not what the High Court determined. Dr. Nshalla insisted th a t proposed grounds 1, 2 and 5 are own creation of the deponent for applicants and do not as such qualify for grant o f the leave. The learned advocate pointed out tha t proposed grounds numbers 3 and 4 5 as enumerated in paragraph 13 were proper guidance given by the High Court to Registrar to follow and comply with the order o f the High Court in suspending the respondent and as such concluded tha t all the grounds as stated in paragraph 13 are intended to cause unmerited and are going to create unnecessary parking before the Court o f Appeal. In support of his stance, the (earned advocate told the court that, the purpose o f leave is to censor all matters which are o f no merits. In support o f the above arguments, the learned advocate for the respondent cited the case of ROBERT RUGAMBIRWA vs. TANICA LTD AND MERCHIORY ERNEST KAREGA, CIVIL APPLICATION NO. 53 OF 2019 (HC) BUKOB^ (UNREPORTED) in which quoting the decisions of the Court o f Appeal gave several factors for the court to grant or refuse leave which is basically a discretion and has to be judiciously exercised. Another case cited was the case of BRITISH BROADCASTING CORPORATION vs. ERIC SIKUJUA NG'MARYO, CIVIL APPLIVATION NO. 138 OF 2004 (CAT) DSM (UNREPORTED) in which, among others, it was held that leave is not automatic and is granted where the applicant raises serious issues for the determination by the Court o f Appeal. 6 Other cases cited are IBRAHIM DAUDI MJEMAS vs. ANNA GODFREY MJEMAS, LAND APPLICATION N0.33 OF 2021 HC DSM (UNREPORTED) and JEROME MICHAEL vs. JOSHUA OKANDA, CIVIL APPEAL NO 19 OF 2021, CAT DSM (UNREPORTED) In the totality of the above reasons, the learned advocate for the respondent urged this court to dismiss this application for failure to meet set conditions for grant o f leave or arguable prim a facie case for the determination by the Court o f Appeal. In rejoinder, Mr.Nyoni, learned Principal State Attorney admitted that, indeed, grounds 1, 2 and 5 were not what the court decided expressly but was quick to point out and argue that, ground 1 by implication is what the court decided in the last page of the judgement. As to ground 2 it was decided at page 12 o f the judgem ent, ground 3 was determined at page 12 o f the judgem ent and paragraph 4 is page 13 and 5 is a point o f that can be raised at any time. In the foregoing, therefore, the learned Principal State Attorney reiterated his earlier prayers that this application be granted as prayed. This marked the end o f hearing of this application for leave. 7 Having carefully and dutifully considered the rivaling arguments for and against this application, the contents o f the affidavit and counter affidavit and the cases cited; I noted that, one, grant of leave is not automatic, hence, apart from complying with the procedural requirements o f filing notice of appeal, writing and serving letter requesting for proceedings and judgem ent and decree, nevertheless, the applicant is supposed to establish to the court that, there are triable issues or prima facie case for determination of by the Court o f Appeal. T w o, from rivaling arguments, I noted that two issues emerge for determination in this application; these are: one, whether an issue or point not determined by the High Court can be a basis for grant o f leave to the court of appeal; and tw o, whether the applicants have made out a case to warrant the grant o f leave to the Court of Appeal? ! will start with the first issue whether an issue or point n o t'determined by the High Court can be raised during application for leave and be a basis for grant o f the leave to go to the Court of Appeal. In order to determine this point, I find it apposite to leave the provisions of section 5(1) (c) to guide me. The said provision for easy of reference provide as follows:- 8 "S ection 5 (1) In civil proceedings, except where any o th e r w ritte n law provides otherw ise, an appeal shall lie to the C ourt o f Appeal- (a ) ................ (b) ................. (c) w ith leave of the High co u rt or C ourt o f Appeal, a g a in s t every o th e r decree, order, ju d gem ent, d e c is io n o r fin d in g s _ o f the H igh C ourt." (Emphasis mine) Going by the wording and literal meaning o f the above section, it is my considered opinion that, for an issue to be considered it must have been in the decree, order, judgem ent, decision or finding o f the High Court and as such anything or issue not considered and determined by the High Court, it cannot be a basis for grant o f leave to the Court o f Appeal being it a point of law or fact. I take the above stance because eave is a restrictive application and must be confined to the High Court decision, order, ruling, judgem ent, decree, or finding and not otherwise. This issue necessitated this court to go through the entire ju d g e m e n t of the High Court subject o f this application for leave, and, I found out that 9 no doubt that, issues numbers 1, 2,and 5 as set out in paragraph 13 of the affidavit are novel to that judgement. The argument that issue num ber S* on tim e limit is a point o f faw that can be raised at anytime, I must admit it disturbed my mind a great deal, but in my view, this point, however, logical it sounds but to my considered opinion, it cannot be entertained in a restrictive application for leave because leave should be limited to the order, decree, judgem ent and finding of the High Court otherwise the Court of Appeal may be turned into a court o f first instance. On the same token I find ground num ber 1 pegged under section 13(1) (a) (b) (c) of the Advocates Act [Cap 341 R E. 2019] and rule 4 (1 ) ( a ) (e) of the Advocates (Disciplinary and Other Proceedings) Rules, 2018 was brought outside w hat the High Court decided and cannot be a basis for grant o f the leave in the circumstances o f this application. Equally ground num ber 2 on whether the High Court o f Tanzania acted correctly in setting aside the decision by Advocates Committee a n d ordering for a fresh trail. By and large, the first part o f this ground cannot be an issue nor do raise any arguable case for the determination by the Court of Appeal. The full bench o f High Court (three Judges) is empowered under the provisions o f section 24A (2) of the Advocates Act, [Cap341 10 R.E.2019] to affirm, reverse, or vary the decision or order appealed against. For easy of reference section 24A (2) provides as follows: Section 24A (1) NA "(2 ) On any appeal under th is section th e High C ourt may affirm , reverse, or vary the decision or order appealed against and may in ad d itio n a l th e re to exercise the pow ers conferred upon the High C ourt by C ivil Procedure Code, in relation to an appeal from civil suits." So by clear and literal wording of section 24A the high Court had powers to do what it did in the circumstances. On the second part o f the issue whether the High Court order a fresh retrial, w ithout much ado I agree with Dr. Nshalla th a t this was not what was decided by the High Court but rather the High Court upon setting aside the decision o f the Advocate Committee ordered and directed the Registrar of the High Court to comply with the directives of the Hon. Dr. Feleshi, Principal Judge as ordered when the suspended the respondent. In the circumstances, I find no arguable issue on this point and indeed is not what the High Court decided. The learned Principal State Attorney needed to read between and along the lines of the decision o f the High Court clearly before venturing into issues that were not decided by High Court In the totality o f the above reasons, I find ground 1, 2 and 5 do not qualify to be issue tha t needed Court o f Appeal intervention and are hereby rejected. This takes me to the second issue whether the applicants have made out a case to w arrant the grant o f leave to the Court of A ppeal?T his issue will not detain this court much. Having considered the remaining issues and w ithout going into their merits, but I find them devoid o f raising any arguable issue worthy for consideration by the Court o f Appeal. As correctly argued by Dr Nshalla and rightly so in my own opinion, w hat the High Court decided in respect o f these tw o remaining issues was proper guidance on handling advocates misconduct and one procedure cannot be mixed up by the other. In the fine and for the reasons given above, this court hereby decline to grant leave to the applicants to appeal to th e Court o f Appeal of Tanzania as prayed in the cham ber summons for failure o f the applicants to establish arguable case or issues for the Court of Appeal to consider. The instant application is, thus, dismissed with no order as to costs given the nature of the dispute and parties still have long way to go back to square one before Advocates Committee. It is so ordered. Dated at Dar es Salaam this 17" day of December, 2021. 13