RULING MKULIMA TEA COMPANY print

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY

AT MBEYA APPLICATION FOR REVISION NO. 4970 OF 2024 CASE REFERENCE NO. 202403111000004970 (Originating from Labour Dispute No. CMA/MBY/MBY/46/2023 in the Commission for Mediation and Arbitration of Mbeya) WAKULIMA TEA COMPANY LIMITED ...................................... APPLICANT

VERSUS SANE KWILABYA ................................................................... RESPONDENT

RULING 10th September& 10th December 2024 NONGWA, J. The decision which triggered this application comes upon what the CMA termed “a concern” raised by the counsel for the respondent, Mr. Gerald Msegeya challenging the competency of Mr. Peter Kiranga, also advocate who hails from Abrasen & Co. Advocates to appear for the applicant. It was alleged during disciplinary hearing which led to termination of the respondent’s employment Mr. Sengo a partiner in Abrasen & Co. Advocates was present. Mr. Msegeya argued the firm has conflict of interest, thus should be disqualified from representing the applicant. Mr. Kiranga on his side admitted that Mr. Sengo was present 1 during disciplinary hearing against the respondent but contented that there was no conflict of interest as Mr. Sengo never appeared in the CMA. Upon hearing parties, the mediator after referring to section 3 and 45 of the Advocates (Professional Conduct and Etiquette) Regulations, 2018 (the Rules of Professional Conduct and Etiquette) and some case laws was satisfied, there was conflict of interest for the firm of Abrasen & Co. Advocates to represent the applicant. In reaching such conclusion, the mediator took as judicial notice that Mr. Essau Sengo was appearing for the applicant in CMA/MBY/RNG/95/2021. Thus, nullified all proceedings and documents prepared by Abrasen & Co. Advocates and Legal Consultant and advised

the applicant to employ another advocate. The above ruling is subject of this application, it is made under sections 91(1)(a)(2)(b)(c) (4((a)(b), 94(1)(b)(i) of the Employment and Labour Relation Act [Cap. 366 R: E 2019] and Rule 24(1)(2)(a)(b)(c)(d)(e)(f)(3)(a)(b)(c)(d) and rule 28(1)(c)(d)(e) of the Labour Court Rules, G.N. No. 106 of 2007. The applicants seek the following orders; (a) This honourable court to call for and examine the record, proceedings and ruling dated 6th February 2024 delivered by Hon. S. Ndonde, mediator in Labor Dispute No. 2 CMA/MBY/MBY/46/2023 in order to satisfy itself as to its correctness, legality or propriety and as to regularity of proceedings of ruling and revise the said ruling and issue necessary order. (b) Any other order or relief the court may deem fit and just to grant. The application is supported by the affidavit of Unjile Mwambelo, Human Resources manager of the applicant in which facts of the dispute and legal issue for determination are reflected. The application is opposed by the respondent through the counter affidavit of Gerald Msegeya, his advocate. When the matter came on for hearing, parties had same representation of Mr. Peter Kiranga and Mr. Gerald Msegeya, both learned counsels for the applicant and respondent respectively. It was agreed that the application be disposed by filing written submission. They conformed to the

drawn scheduling order. In the first point that the mediator misconstrued the principles governing conflict of interest. Mr. Kiranga referred to regulation 35 of the Rules of Professional Conduct and Etiquette and stated for such conflict of interest to arise, must be more than mere potential, it must be one that poses risk of undermining the advocate impartiality. He contended in the 3 present matter there was no any conflict of interest. He added the fact that one of the advocate represented the other party did not by itself create conflict of interest as there was no evidence that information was shared among advocates of the same firm. He stated conflict of interest existed only to Mr. Essau Sengo who attended disciplinary hearing and not any other advocates of the firm. He fortified the argument with the case of UAP Insurance Tanzania Limited vs AKIBA Commercial Bank PLC, Civil Appeal No. 135 of 2022 [2023] TZCA 17784 (31 October 2023; TanzLII). In the second ground that he was to withdraw from instruction, counsel submitted that requiring advocate to withdraw from representing the applicant undermined the principle of due process and fair hearing. He argued the applicant was deprived right to legal representation by the advocate of his choice. Last was that the mediator did not evaluate how the respondent will be prejudiced. Mr. Kiranga submitted the mediator did not

adequately consider applicant’s fair trial and due process as there was no actual conflict of interest and the respondent was not prejudiced. For that reason, he prayed the application be allowed. 4 In reply Mr. Msegeya referred the court to the definition of conflict of interest under the oxford English dictionary. He argued, Essau Sengo was present during disciplinary hearing which led to the termination of the respondent’s employment making it not proper for the applicant to instruct Abrasen & Co. Advocate in which Essau Sengo is one of the partners. He referred to regulation 35 and 46(1) which prohibits advocates to act on matter he has conflict of interest. He concluded that the firm in which Essau Sengo hails was incompetent to represent the applicant in the CMA and thus favoured the decision of the mediator. In respect of the second ground Mr. Msegeya submitted that the mediator gave reason by referring to section 45 of the Rules of Professional Conduct and Etiquette and case law he cited in support. He added the applicant was not deprived right to legal representation as he was advised to fins another advocate. He contended that the fact that Mr. Kiranga who was appearing in the CMA did not attend disciplinary hearing but had potential information from his fellow Essu Sengo whom they share law firm. He added Essau Sengo was not the inhouse advocate of the applicant who

would be allowed to prosecute and defend the applicant’s cases. He submitted, the respondent will be prejudiced should they represent the applicant. 5 Having considered rival submissions, the issue for my determination is one, whether there was potential conflict of interest by Mr. Peter Kiranga to represent the applicant. The term is defined by Black's Law Dictionary 8th Edition by Bryan A. Garner Page 341 as; ‘1. A real or seeming incompatibility between one's private interests and one's public or fiduciary duties.

2. A real or seeming incompatibility between the interests of two of a lawyer’s clients, such that the lawyer is disqualified from representing both clients if the dual representation adversely affects either client or if the clients do not consent.’ Statutory definition is found under regulation 3 of the Rules of Professional Conduct and Etiquette to includes a situation that has the potential to undermine the impartiality of an advocate because of the possibility of a clash between the advocate’s self-interest and the public interest. Circumstance under which conflict of interest may arise are stipulated under regulation 45 of the Rules of Professional Conduct and Etiquette. It provided; ‘(1) A conflict of interest is one that would be likely to affect adversely the advocate’s judgment or advice on behalf of, or loyalty to a client or prospective client. 6 (2) An advocate shall not act or continue to act in a matter where there is or is likely to be at conflict unless the advocate has the informed consent of each client or prospective client for whom the advocate proposes to act. (3) A conflict of interests includes the duties and loyalties of the advocate to any other client, whether involved in the particular transaction or not, including the obligation to communicate information.’ From the above circumstances for conflict of interest to arise may be summarized thus, a

person is disqualified to be retained in the matter he/she acted as advocate for both parties or witness of both parties. See Sylvia Marita Barner vs Ahamed Zahran Said, Civil Appeal No. 144 of 2023 [2024] TZCA 325 (8 May 2024; TanzLII) or as mediator, judge, magistrate or arbitrator, chairman or any circumstance as an adjudicator. See Clemence O. Mbowe vs Donald A. Kimambo & Another, Civil Appeal No. 240 of 2022 [2024] TZCA 234 (22 March 2024; TanzLII). The rule against conflict of interest is based on three principles one, general law to the protection of confidential information, that, advocate who obtained confidential information on a subject matter cannot act for a new client on the same matter. Two, power of the court to control the conducts of advocates as its officers, here the court has to look on the likelihood of prejudice and protecting public interest in the administration 7 of justice. And three, need to guide professional misconduct of advocates, judicial officers and public officers which are found in rule regulating professional misconduct of a particular cadre. In this application there is consensus that Mr. Essau Sengo hails from Abrasen & Co. Advocate, the firm Mr. Kiranga is partner was present in the disciplinary hearing convened by the applicant against the respondent. Argument by Mr. Msegeya before the CMA and in this court is that there is conflict of

interest, however, did not go further to expound how such conflict of interest arose. As a matter of law, I agree, as a general rule a firm of advocates or advocate can ever act against a former client if the firm or advocate gained confidential information from the former client which is relevant to the present dispute. In Re a firm of solicitors [1992] 1 ALL ER 353 the Court of Appeal of England stated; ‘There was no general rule that a firm of solicitors who had acted for a former client could never thereafter act for another client against the former client, but a firm of solicitors would not be permitted to act for an existing client against a former client if (per Parker LJ and Sir David Croom-Johnson) a reasonable man with knowledge of the facts would reasonably anticipate that there was a danger that information gained while acting for the former client would be used against him or (per Staughton LJ) there 8 was some degree of likelihood of mischief, i.e of the confidential information imparted by the former client being used for the benefit of the new client ...’ Emphasize supplied.] Commenting on the rule of confidentiality built between advocate- client relationship, Karegeya, J. (as he then was) in the case of National Bank of Commerce Ltd vs Nabro Limited, Commercial Case No. 44 of 2001, HCT Commercial Division (Unreported) stated; ‘Deciding otherwise would punch

an unbridgeable hole in the well known and guarded impregnable Advocate/client relationship which is imbued in the general principle of confidentiality save where public interests or criminality are involved. Clients’ interests would be thrown into the winds as they would be left at the mercy of Advocates. On the other hand, the confidence base upon which the relationship is centered would be eroded because clients would not be sure which information to off - load to the advocate or retain. It would be disastrous to the whole machinery of justice because it would make clients have reservations leveled against the very advocates they retain.’ Having considered the law and case laws, to resolve the present dispute, two questions emerge one, whether Mr. Essa Sengo was retained by the respondent to represent him in the disciplinary hearing to have 9 gained such confidential information to be used against him should his firm represent the applicant. Two, whether Mr. Essau Sengo acted as adjudicator in the matter, is disciplinary hearing by employer judicial proceedings. In resolving the first issue, admittedly, there is little information from the record of the CMA on status of Mr. Essau Sengo in the disciplinary hearing, what is gathered from the ruling of the mediator at page 6, I quote; ‘Ingawa wakili Essau Sengo hajawahi tokea katika maombi haya, tume imezingatia (judicial

notice) kuwa maombi haya ni mtiririko was shauri Na. CMA/MBY/RNG/95/2021 kati ya mleta maombi na mjibu maombi katika shauri hili. Na katika shauri tajwa hapo juu wakili Essau Sengo alikuwa akitokea kama wakili wa malalamikiwa katika shauri hilo.’ Translated “although advocate Essau Sengo has never appeared in this application, the commission has taken (judicial notice) that this application is a series of dispute No. CMA/MBY/RNG/95/2021 between the complainant and respondent in this matter. And in the above-mentioned matter advocate Essau Sengo was appearing as advocate of the respondent in that matter.” 10 In CMA/MBY/RNG/95/2021 between the parties herein, Mr. Essau Sengo appeared for the applicant. Thus, confident that Mr. Essau Sengo had no any confidential information from the respondent as he never acted for him which could be acted against him should he or his firm represent the applicant. The second question is the nature of proceedings in disciplinary hearing, the law prohibits a person who as adjudicator to act as advocate of one party in the future dispute on the same matter. Regulation 46(1)(b) of the Rules of Professional Conduct and Etiquette prohibit advocate to act in a matter which he had previously acted as a mediator or an arbitrator. To add to list includes judge, magistrate, chairman or in any circumstance in which a person sits as the adjudicator. In

Clemence O. Mbowe vs Donald A. Kimambo & Another, Civil Appeal No. 240 of 2022 [2024] TZCA 234 (22 March 2024; TanzLII) the court observed that; ‘In our view, by representing a client in a matter he previously acted as a judicial officer, an advocate breaches his duty to provide his client with complete and undivided loyalty, dedication, full disclosure and good faith and the duty to uphold justice and importantly, a duty to preserve confidence in the administration of justice. we think, justice will not be seen to have been done and members of the public will lose confidence with the administration of justice if a person who acted on a 11 matter as a judicial officer is subsequently allowed to act in the same matter as an advocate.’ Gauging from the labour laws particularly the Employment and Labour Relations Citation (Code of Good Practice) Rules, 2007 G.N. No. 42 of 2007, conducting disciplinary hearing is administrative procedure intended to afford the employee an opportunity of being heard on offence alleged he committed and appropriate sanction to be imposed on the employee. That is why those who participate in the hearing are not barred from testifying in future dispute even documents tendered during disciplinary hearing has to be introduced afresh in the CMA. In my view proceedings before the disciplinary committee are not judicial proceedings. Flowing from the above

and the quotation in the ruling of the mediator, Mr. Sengo acted for the applicant in the disciplinary hearing and his firm was retained to represent the applicant when the matter went before the CMA. There is no way conflict of interest arises in this case which affect the interest of the respondent, counsel acted for the applicant and is the same who has retained the firm to continue representing on the dispute. The situation would be different if Mr. Sengo had acted for the respondent, for we could confidently say there was advocate-client 12 relationship in which some confidential information was gained and there is mischief if he represents the applicant on the same matter such information might be used against the respondent. That said and done, the application has merit, I hereby allow it and remit file to the CMA to continue from the stage before the objection being raised. Being labour matter no order as to cost. It is so ordered. V.M. NONGWA

JUDGE 10/12/2024 Dated and Delivered at Mbeya this 10/12/2024 in presence of the Mr. Peter Kiranga for the Applicant and also holding brief of Mr. Gerald Msegeya for the Respondent. V.M. NONGWA

JUDGE 13 14