Julius Petro vs Cosmas Raphael ()  TZHC 31 (17 October 1985);
Mwalusanya, J.: Perhaps in this appeal for the sake of convenience I will start with the A issue of representation of parties in our courts. That is, apart from an advocate by whom is a party allowed or permitted to be represented in court - at the trial and on appeal? There appears to be a misapprehension on the matter or is it a deliberate B flouting of the law? This is because one Leopold s/o Rwizandekwa a known public writer in Bukoba wrote a letter addressed to a judge seeking adjournment on behalf of the appellant in this appeal. He said he would represent the appellant at the hearing of the appeal as he did at the District Court 'as a recognised agent'. When I questioned C him a few days later he told me that that is how he makes a living. In short he masquerades as an advocate for a number of poor peasants whom he milks for all their worth under the veneer of 'recognised agent' of the said litigants.
In the case of Felician Evarister v Bi Dominitina Kaijage: (MZA) (PC) Civil Appeal D No. 98/1982 (unreported) I had occasion, though briefly, to deprecate the practice of 'public writers' or 'recognised agents' whatever the nomenclature, who represent parties in court for gain and I described it as a 'sordid' practice. I wish to reiterate that view and dispel any wrong impressions that these characters may be harbouring. E
At the District Court the public writer presented an affidavit duly stamped and attested before a magistrate to the effect that the appellant Julius s/o Petro by virtue of Rule 2 of the Civil Procedure (Appeals in Proceedings Originating from Primary Courts) Rules G.N. 312/1964 had appointed Leopold s/o Rwizandekwe as his 'recognised agent' for F the purpose of representing him on appeal at the District Court and other High Courts. And so the man purported to represent the appellant at the district Court and High Court not because he was a relative of the appellant but because he was a 'recognised agent' for the same.
Now Rule 2 of G.N. 312/1964 defines what the word 'agent' means. It says that agent G means an advocate or any person who according to s. 29 of the Magistrates Court Act Cap. 537 is permitted to appear and act for any party in a suit.
And s. 29 of the M.C.A. Cap. 537 states as follows: H
(1) No advocate or public prosecutor as such may appear or act for any party in a Primary Court.
(2) Subject to the provisions of subsection (1) and (3) of this section and to any rules of court relating to the representation of parties, a Primary Court may I permit any relative or any member of the household of any party to any proceeding of
a civil nature, upon the request of such party, to appear and act for such party. A
(3) In any proceeding in a Primary Court to which a body corporate rate is a party (including proceedings of a criminal nature) a person in the employment of the body corporate and duly authorised in that behalf, other than an advocate, may appear and act on behalf of that party. B
I think it is clear so far that any one purporting to appear on behalf of a party either at the Primary Court or at the District Court (When hearing of appeals), must cite s. 29 of the MCA Cap. 537 as his authority for the same. Neither does Rule 2 of G.N. 312/64 C nor s. 29(2) of the MCA Cap. 537 use the phrase 'recognised agent' which indeed is an innovation of the public writer. Under s. 29(2) of MCA Cap. 537 a party can only be represented by 'any relative or any member of his or her household'. As to what is 'relative' it is not defined but I would settle for the definition given by the Concise D Oxford Dictionary 5th Ed. (1975) that a relative is a kinsman or kinswoman to whom one is related by blood or marriage. At least there should be closeness of blood relationship. On the principle of ejusdem generis rule of interpretation the word 'relative' should be restricted to near relatives not distant relatives, so that we do not venture very E far from related members of the household contained on the second part of that phrase.
And in any case by any stretch of imagination the definition of the word 'relative', though nebulous, would not be extended to include a person who works for gain under the title of 'public writer' or 'recognised agent' but is not whatsoever related by blood to any of F his clients.
Under the new Magistrates' Court Act No. 2 of 1984 the provisions of s. 29 of the former MCA Cap. 537 are now contained in identical form in section 33. So what I have just tried to expound above applies with equal force to the new Act. G
It needs repeating for the sake of emphasis that s. 29 of MCA Cap. 537 (s. 33 of the new Act) governs appearances on behalf of the parties at the Primary Courts and District Courts (When hearing Appeals) only but not the High Court. So the public writer was wrong to think that the same section applies for appearances on behalf of parties at the High Court. H
For the High Court appearances on behalf of the parties for appeals originating from the Primary Courts, the governing section is s. 30(1)(a) of MCA Cap. 537 (for the new Act it is s.34(1)(a)). The section in question reads; I
(1) Save where an appeal is summarily rejected by the High Court, a court to which an A appeal lies under this Part shall cause notice of the time and place at which the appeal will be heard to be given.
(a) to the parties or their advocates'. B
That is the only section applicable in case of the High Court. As it can be seen for any one with eyes to see, the section talks of parties and advocates only. It is only through courtesy that sometimes relatives or agents of the parties are allowed to appear at the High Court on behalf of the parties. No one can claim that it is a right. C
Elsewhere the public writer has argued that he thought the Civil Procedure Code Act No. 49 of 1966 was applicable to the High Court when hearing appeals originating from Primary Courts. If it was applicable then he said he thought he could appear on behalf of the parties, so long as he holds their power of attorney, under Order 3 Rule 2 of the D Civil Procedure Code which reads:
'(2) The recognized agents of parties by whom such appearances, applications and acts may be made or done are:
(a) persons holding powers - of - attorney, authorizing them to make and do such E appearance, applications and acts on behalf of such parties'.
Now I am starting to solve the jigsaw puzzle as I can now imagine where the public F writer derived the title of 'recognised agent' which he is indiscriminately using. It is from the above quoted section.
For one thing let it be made clear that the Civil Procedure Code Act No. 49 of 1966 does not apply to the High Court when hearing appeals originating from Primary Courts. The Act No. 49 of 1966 applies to the High Court, R.M.'s Court and District Court G when they exercise original civil jurisdiction and also applies when the High Court hears appeals originating from the District Court or R.M.'s Court. So the public writer is wrong to assume that the Civil Procedure Code is of universal application by the High Court. H
Even where the Civil Procedure Code is applicable it is doubtful if Order 3 Rule 2 would cover persons like the public writer who makes his living or makes it a profession to appear in court on behalf of the parties. That is why Order 3 Rule 1 state that: I
Any appearance by a party in court, may be made by his recognised agent, except where otherwise expressly provided by any law for
the time being in force. A
It is submitted that appearance by a recognised agent who works for gain by dint of that agency is expressly prohibited by s. 41(1) of the Advocates Ordinance Cap. 341 which reads: B
'No unqualified person shall act as an advocate or agent for suitors or defend any action, suit or other proceeding in the name of any other person, in any court of civil or criminal jurisdiction or act as an advocate in any cause or matter, civil or criminal'. C
And those who violate such provision are liable for prosecution under s. 41(2) of the Advocates Ordinance.
In the same breath s. 70 of the Advocates Ordinance cannot come to the rescue of public writers either, for the reasons to be given hereunder. That section reads: D
'Nothing in this Ordinance shall prejudice or affect:
(a) the provisions of any other law empowering any person not being an advocate, to conduct, defend or otherwise act in relation to any proceedings'. E
My understanding of this section (if you assign some meaning to the preceding section of s. 41) is that representation on behalf of the parties is not prohibited altogether but permitted in certain circumstances only and these are firstly as given under s. 29 of M.C.A. Cap. 537 (now s. 33 of the New Act); and secondly in respect of Civil F Procedure Code where a 'genuine' recognised agent represents a party in a suit and I use the word 'genuine' advisedly as I exclude a professional agent who makes his living by representing clients in court. It is these professional agents that s 41(1) of the Advocates Ordinance had in mind. The long arm of the law should not spare them G under the subsequent sub-section.
It is for the reasons stated that I denied audience to the 'recognised agent' to appear before me. No doubt these public writers provide useful 'secretarial services' to clients and for that I have no quarrel. They should be confined to desk work. They should H leave alone the legal profession, as it is a science for which they have not been trained. Lord Denning that eminent English jurist states in his book, The Road to Justice (1955) p.24:
'The law is a science which requires long study and experience before a man attains I proficiency in it; and the ordinary citizen cannot
properly put his arguments before the judge except with the assistance of a trained lawyer'. A
And that is not the only admonition we have on the subject. We read in Boswell, Life of Johnson Vol. 5 pp. 28-29; also quoted in Sconavala on 'Advocacy' 2nd Ed. at p. 921 that: B
'As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who by study and experience, have acquired the art and power of arranging evidence and of applying to the points at issue that the law has to settle. A lawyer is to do for C his client all his client might fairly do for himself, if he could. If by superiority of attention, of knowledge, of skill and a better method of communication, he has advantage to which he is entitled'. D
It is therefore wrong to regard the legal profession as for dishonest people as that English novelist Jonathan Swift had once in light mood commented:
'Lawyers are a society of men ... bred up from their youth in the art of proving by words, E multiplied for the purpose ... and a jargon of their own that no other mortal can understand that white is black and black is white according as they are paid'.
It is only hoped that those engaged in the crusade to soil the legal profession in one way F or the other will desist.
Fortunately in the appeal at hand the appellant was personally served with notice of date of hearing. He failed to appear and the appeal was heard in his absence. Concerning the merits of this appeal the appellant is crossing swords with the administrator of the G deceased's estate the respondent Cosmas Raphael, that he distributed the deceased's estate rather haphazardly. The deceased was the father of the appellant and appellant is the principal heir. However I note that most of the points raised are devoid of merit as they were adequately disposed of by either the trial court or the District Court. H
Perhaps the only point of significance is whether the courts below were right to hold that the child Kashangaki was legitimate and therefore entitled to a share of inheritance form the estate of their deceased father. The appellant concedes that Kashangaki's mother was married to the deceased and were cohabiting together. But he says that I Kashangaki was born seven months after his father's death and so he cannot be
legitimate - he is 'mwana wa bisisi'. Well I cannot agree. According to para 140 of A Cory & Hartnoll on Haya Customary Law 'Children born in wedlock belong under all circumstances to their father and are his heirs'. And s. 175 of the Customary Law Declaration GN. 279/63 is to the same effect. However under the rules of evidence, the period of wedlock includes a period of 280 days after the death of the husband. So B the position is such that where a child is born during wedlock or during 280 days after death of the husband, there is a rebuttable presumption that such child is legitimate. In this case no evidence was adduced in rebuttal. So obviously the child Kashangaki is legitimate and is entitled to a share of inheritance. C
I note from the court record that both courts below ordered that appellant be given the keys of the motor-car and garage and that he could look after the shamba of his brother John Peter if he wanted to. The complaints in respect of those matters are therefore unfounded and are accordingly dismissed. About a room that had been used by Rose, D appellant says it has not been handed over to him. But this is a completely new matter that had not been raised in both courts below, and so it cannot be a subject-matter of adjudication at this late stage.
Both courts below ordered that the motor-car be sold and the proceeds be distributed among the heirs as directed by the will. In the memo of appeal the appellant complains E as to why the motor-car has to be sold. But that is in accordance with the 'WILL'. If he and his full brothers want to retain the motor-car then let the matter revert to the family council for change of decision to see if the female heir members and Kashangaki can be compensated with some money by those who want to retain the vehicle. F Otherwise the order of sale will stand.
That disposes of all the main points of appeal raised. In substance the appeal has failed. I accordingly dismiss it with costs.
G Appeal dismissed.