IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM MAIN REGISTRY

fAT PAR ES SALAAM)

MISCELLANEOUS CIVIL APPLICATION NUMBER 17 of 2011

SABAS WILLIAM KIWANGO............................ APPLICANT

VS

THE HON. ATTORNEY GENERAL...................RESPONDENT

RULING

Date of last Order: 02-02-2012

Date of Ruling: 15-03-2012

JUMA, J.:

This Ruling arises from a Notice of Preliminary Objection

which the Respondent Attorney-General filed to contend that

this Court has not been properly moved to lift an order

suspending legal practice of the Applicant

The Applicant (Petitioner) Sabas William Kiwango

describes himself as an advocate under suspension and

would like this Court to lift his suspension pending his filing

of a reference to this Court Before his suspension, the

Petitioner practiced as an advocate of this Court and his

enrolment number is 422. He states that on 15th August 2005

Judge Thomas Mihayo suspended his practice, accusing him

that he had acted unprofessionally by:

"(i) m isleading the court into issuing a

garnishee order for Tshs. 219,395,504.75
while knowing well that there is no court
decree to that effect; and
(ii) attaching a sheet purporting to show
the applicant's claims against the
respondent knowing well that the sheet
had not been adjudicated upon."

Further, the Petitioner states that the order suspending

him was referred to the Hon. Attorney General (Respondent

herein) in order for the Respondent to file a Reference to this

Court in terms of section 22-(2) (b) of the Advocates Act,

Cap. 341. The Petitioner is aggrieved that more than five

years has elapsed, and the Respondent has not referred the

matter to this Court. Mr. Kiwango has employed sections 22

(2) (b) and 28 of the Advocates Act to move this Court to lift

the order imposed by Justice Mihayo suspending him from

practice. He would further like this Court to allow him to

resume his practice as an advocate of this Court and courts

subordinate hereto.
On 12th September 2011 the Respondent filed its reply

to the petition prefacing it with a notice of a preliminary

objection contending that this Petition before me is not

maintainable in law. According to the Respondent, the

Petitioner did not cite proper provisions of law to move this

Court. In addition, Respondent contends that this petition is

bad in law because its filing contravened the provisions of

section 29 (1) of the Advocates Act.

At the hearing of the preliminary objection the

Respondent was represented by Ms Sylvia Matiku the learned

State Attorney. The Petitioner appeared in person.

Submitting on the citation of enabling provision, Ms

Matiku contended that section 22-(2) (b) of the Advocates

Act is not proper provision to employ since it is about when a

Judge of the High Court can suspend an Advocate. According

to the learned State Attorney, it is not clear what the

Petitioner wants this Court to do under the cited section 22-

(2) (b) since he has already been suspended.

 Ms Matiku has also taken exception to the general way

the Petitioner has cited section 28 of the Advocates Act

without identifying its specific subsection. This way of citation

does not properly move this Court to grant the orders the

Petitioner craves for. The learned State Attorney observed

that sub-section (2) (a) of section 28 covers suspension of an

advocate which is different from removal of an advocate from

the Roll of Advocates covered under sub-section (2) (b) of the

same section. The learned State Attorney invited me to seek

the guidance of the Court of Appeal in the case of Edward

Bachwa & 3 Others vs. AG- Civil Application No. 128 of

2006; where it laid down the principle that wrong citation of

the law, section, subsection and/or paragraphs of the law or

non-citation of law will not move the Court to do what is

asked and renders application incompetent.

Responding to the contention that he has not cited

proper provisions, the Petitioner submitted that he cited

section 22-(2) (b) as an enabling provision which provides for

reference to be filed to question the disallowance of a

suspension of an advocate by the High Court. With regard to

his failure to specify appropriate subsection and paragraphs

of section 28, the Petitioner conceded the general way he

cited section 28 does not enable the filing of his petition. But

the Petitioner hastened to refer me to the provisions of the

Constitution as expounded by the Court of Appeal decision in

Samson Ng'walida vs. The Commissioner General

Tanzania Revenue Authority, Civil Appeal Number 86 of

2008 directing courts to dispense justice without being tied

up with undue technical provisions which may obstruct

dispensation of justice.

With regard to the second point of objection alleging

the contravention of the provisions of section 29 (1) of the

Advocates Act, Cap. 341, Ms Matiku submitted that the

Petitioner failed to accompany his Petition with a supporting

affidavit. The learned State Attorney asked this Court to strike

out the petition. The Petitioner conceded that indeed his

petition has not complied with section 29 in so far as lack of

supporting affidavit is concerned. But the Petitioner thinks

that his failure to file a supporting affidavit is curable under

Article 107A (2) (e) of the Constitution which directs that in

dealing with criminal or civil cases the courts should

administer substantive justice without undue regard to

technicalities.

From submissions of the learned Counsel the main issue

calling for my determination is in essence whether this

petition is properly before this Court. It is common ground

that Mr. Kiwango has come to this Court through the avenues

provided by sections 22 (2) (b) and 28 of the Advocates Act.

Let me begin with the totality of section 22 which covers

disciplinary powers of Judges of High Court to deal with

misconduct or offences by advocates. Through paragraph (b)

of subsection (2) this Court has both the power to suspend an

advocate and also the power to disallow any such suspension

of an advocate. The relevant section 22 provides:

22.-(l) Nothing in this Act contained shall

supersede, or interfere with the powers vested
in the Chief Justice or any o f the Judges o f the
High Court to deal with misconduct or offences
by advocates.
(2) Without prejudice to the generality of
the foregoing subsection, notwithstanding that
no inquiry m ay have been made by the
Com m ittee-
(o).....
6
 (b) any Judge of the High Court shall have
power to suspend any advocate in like
manner temporarily, pending a reference
to, or disallowance of such suspension
by, the High Court; [emphasis added]

It is clear to me that section 22 (2) (b) is applicable to

both cases of suspension of an advocate and also

disallowance of any such suspension. In so far as his prayers

for disallowance of his suspension is concerned, it is my

finding and holding that the Petitioner has cited proper

provision when he employed section 22 (2) (b) of the

Advocates Act.

Let me move on to section 28 which the Petitioner cited.

This section 28 of the Advocates Act provides for avenue for

a suspended advocate to apply to this Court for variation of

the order that had suspended him. Section 28 must be read

together with section 29 to appreciate the totality of power of

this Court to vary the suspension order and the procedure to

be followed by a petitioner. Section 29 clearly directs that an

application to vary the suspension order shall be by way of a

petition supported by affidavit and served on Attorney-

General. Sections 28 and 29 state:

28 (1) Subject to the provisions of

subsection (2), any person who, in accordance
with the provisions o f this Act or otherwise by
the High Court, has been suspended from
practising during a specified time or whose
name has been removed from the Roll, may
apply to the High Court for an order, in the
former case, to set aside the order or to
reduce the period of suspension a n d i n the
latter case, to set aside the order or for re­
admission.
(2) The right to apply under subsection (1)
shall be subject to the following lim itations-
(a) in the case o f an order of
suspension, no application shall be made until
after the expiration o f two years from the date
o f such order or of h a lf the period of
suspension, whichever is the less, and when an
application has been made and determined no
further application shall be made until after
the expiration o f two years from the date of
such determination; and
(b) in the case o f an order removing
a name from the Roll, no application shall be
8
made until after the expiration of two years
from the date of such order and when an
application has been made and determined, no
further application shall be made until after
the expiration of two years from the date of
such determination and, in the case of
subsequent applications, until after the
expiration o f two years from the date of the
determination o f the last previous application:
Provided that in the event of any new
m aterial fact coming to light since the making
o f the original order of suspension or removal
from the Roll, which fact m ight have influenced
the Court or the Committee in making the
order, the person affected may, at any time,
apply to a Judge in Chambers for permission to
apply for reconsideration of the original order,
and if the Judge is o f the opinion that such fact
should be placed before the Court or the
Committee which made the original order,
whether or not he considers that such fact
would have influenced the original decision, he
m ay grant such application, and where such
application is granted -
(a) if the original order was an order
made by the High Court, the High Court shall
proceed to reconsider the order;
 (b) if the original order was an order
made by the Committee, the Committee shall
proceed to reconsider the order. [Emphasis
added].

29. (1) Every application under section 28

shall be by petition and shall be accompanied
by a supporting affidavit setting forth the
grounds upon which the applicant relies.
(2) A copy o f such petition and
affidavit shall be served upon the Attorney-
General not less than seven days before the
day o f hearing. [Emphasis added]

The above-cited section 29 is crystal clear with regard to

what is demanded of an advocate who is applying for

variation of his suspension order. The concerned advocate

must move this Court by filing a petition supported by an

affidavit which state the grounds upon which he relies upon

in his petition. Ms Matiku has asked this Court to strike out

this petition because of this defect. The Petitioner has

conceded that he filed his petition without any supporting

affidavit. The Petitioner has hastened to urge this Court to

10
save his petition by through reliance on Article 107A (2) (e) of

the Constitution.

I will with due respect agree with the learned State

Attorney that this Petition is not properly before this Court

because it lacks supporting affidavit. Any petition seeking to

vary orders that had suspended an advocate must comply

with mandatory procedure prescribed by section 29 of the

Advocates A ct The law in Tanzania is now settled that the

scope of Article 107A (2) (e) of the Constitution does not

extend to make any mandatory requirements of statutory

provisions to become redundant. The Court of Appeal

elaborated the scope of Article 107A (2) (e) in the stand it

took in the case of Zuberi Musa v Shinyanga Town Council,

Civil Application No. 100 of 2004 (unreported) when it

stated that:-

"...article 107 A (2) (e) is so couched that in

itself it is both conclusive and exclusive o f any
opposite interpretation. A purposive interpretation
makes it plain that it should be taken as a
guideline for court action and not as an iron
clad rule which bars the courts from taking
cognizance of salutary rules of procedure
ii
 which when properly employed help to
enhance the quality of justice. It recognizes the
importance of such rules in the orderly and
predictable administration of justice. The courts
are enjoined by it to administer justice according to
law only without being unduly constrained by rules
of procedure and/or technical
requirements. ” [Emphasis is added]

In other words, as a guide, Article 107A (2) (e) of the

Constitution does not take away the duty of courts take

cognizance of clear statutory words in section 29 (1) that

every application under section 28 shall be by petition and

shall be accompanied by a supporting affidavit setting forth

the grounds upon which the applicant relies.

Consequently, the preliminary objection is hereby

sustained and this petition is struck out and Respondent is

awarded costs.
DATED at DAR ES SALAAM this 15th March, 2012

iti