A REVIEW OF THE LAW AND PRACTICE RELATING TO ADVOCATES

MALPRACTICE IN TANZANIA: A CASE STUDY OF UNQUALIFIED PERSONS

Written by ZAKARIA MASEKE

2022

______________________________________________

Abstract

This paper aims at explaining the legal position relating to Advocates malpractice on the part

of unqualified persons vis-à-vis the position taken by the court in dealing with unqualified

person’s submission. There is still ambiguity regarding the position of the law on the

submission done by the unqualified counsels, as to whether the same should be expunged from

record or rather be maintained. The law does not state whether the unqualified person’s act of

representation shall affect the proceedings tried under the representation of the unqualified

person but rather it deals with the unqualified person only.

However, in practice courts have established a rule that, a document which has been attended

to by an unqualified person has to be expunged, the practice in which it is the innocent client

who suffers most for having his case struck out. And although the general practice has been for

the court to expunge the pleadings, nevertheless, the same court has delivered several decisions

with differing positions on the status of the pleadings prepared by unqualified person. In some

cases, courts have consistently expunged from their records the pleadings filed by an

unqualified Advocates. In some, they have not. Such difference of judicial pronouncements

may lead to uncertainty and perhaps injustice.

Keywords: Unqualified person, innocent client, pleadings, practicing certificate, struck out
These are some of the key issues that the author needs to address.

 Who is unqualified person?

 What is the fate of unqualified person?

 What is the legal status of the pleadings (submissions) prepared by unqualified person?

 Is there any specific statutory provision which addresses the status of documents prepared

and filed by an unqualified person?

 What is the fate of the innocent client who engaged the services of an unqualified person?

 Should the misconduct of Advocate be imputed to his client?

 Whether the Advocate has a duty to inform his client of his practicing status?

 Whether a client has a duty to ascertain practicing status of his Advocate before engaging

him?

 Can the court rely on the overriding objective principle so as to uphold substantive justice,

in favour of the innocent client who engages the services of the unqualified person who

appears before the court while well aware that he is not qualified?

 What remedies are available to the client against the Advocates who have misconducted

themselves?

In order to answer these questions, we must look at how the courts have dealt with the matters

in practice.
Introduction

Meaning of unqualified person

The term “unqualified person” is defined under section 39(1) of the Advocates Act,1 which

provides for the qualifications to practice as Advocate. The section reads:-

“No person shall be qualified to act as an Advocate unless, (a) his name

is on the Roll, (b) he has in force a practising certificate and (c) he has

a valid business licence, and a person who is not so qualified is in

this part referred to as an “unqualified person”. [Emphasis mine].

From that section, it is clear that a person who purports to practice as an Advocate without his

name being on the Roll of Advocates and who does not possess a valid practicing certificate as

well as business licence for the relevant year of practice is unqualified person.

Section 41(1) of the same law prohibits an unqualified person to act as Advocate in any court

of law, whereby unqualified persons are strictly barred not only to appear but also to prepare

pleadings. Sub-section two of the same section provides that any person who contravenes that

section will be guilty of an offence and will be liable to a fine.

Although the law provides for the restriction of unqualified person not to act as Advocate, still

there is a flood of malpractice by Advocates, especially failure to renew practicing certificate

on the date when signing the pleadings. There is a plethora of cases in which courts have been

faced with situations where unqualified persons are acting as Advocates. Since there is no

specific statutory provision regarding the status of documents drawn by an unqualified person,

I will begin my discussion by looking on how the courts have dealt with the matter in practice.

1
Cap 341 R.E 2019.

1
 I. Cases where the court expunged the pleadings drawn by unqualified persons

The earliest case in Tanzania to deal with unqualified person is Edson Osward Mbogoro v.

Dr. Emmanuel John Nchimbi & Another.2 Briefly, the facts of this case can be recapitulated

as follows; this was an election petition. A preliminary objection was raised on the grounds,

inter alia that, the appeal was incompetent because the notice of appeal, memorandum of

appeal and the records of appeal were drawn, signed, certified and lodged by an unqualified

person (Dr. Wambali – Advocate for the appellant), who did not have a current practicing

certificate at the time he filed those documents, for he had defaulted to pay the annual

subscription fees.

The issue for determination before the court was, what would be the status of those documents

filed by an unqualified person? Bearing in mind that, the Advocates Act was silent regarding

the status of documents drawn and filed by an unqualified person.

Mr. Mpoki, argued that, the innocent client should not be prejudiced, however the Advocate

who acted illegally could be sued. He cited various cases i.e Sparling v Brereton [1866] 31

LTR 64, Richard v Bostock [1914] 31 LTR 70, Kajwang v Law Society of Kenya [2002] 1 KLR

846, Jesse Gulyetondav v Henry Muganwa Kajura and 2 Others [1996] III KARL 44 and Prof.

Syed Huq v Islamic University in Uganda [1997] IV KARL 26. Since there was no specific

statutory provision or any case law (by then) in Tanzania addressing the status of documents

prepared by unqualified person, the court resorted to common law. In responding to the

argument and authorities cited above, the court discussed each case separately and ruled that:

“Those authorities referred to innocent clients who should not be

prejudiced by unqualified persons.”

2
Civil Appeal No. 140 of 2006, CAT (DSM), (Unreported).

2
It then went on to distinguish the authorities with the case at hand, holding that, in this case

“Mr. Mbogoro, as the client of Dr. Wambali, was himself an Advocate who should have known

or had the means to know that Dr. Wambali was not a qualified person. Therefore, there was

no need to be sympathetic with him.” [Emphasis mine].

Finally, the Court of Appeal of Tanzania upheld the objection and ruled that:

“Although there is no specific statutory provision on the point, if an

advocate in this country practices as an advocate without having a

current practicing certificate, not only does he act illegally but also

whatever he does in that capacity as an unqualified person has no legal

validity. We also take the liberty to say that to hold otherwise would be

tantamount to condoning illegality. It follows that the notice of appeal,

the memorandum of appeal and the record of appeal which were

prepared and filed in this Court by Dr. Wambali purporting to act as an

advocate of the appellant were of no legal effect. Therefore, there is

currently no competent appeal before this Court.”

It would however appear that, the above decision by the Court of Appeal, must have been

influenced by the fact that, Mr. Mbogoro, the client in this case was himself an Advocate,

therefore he was expected to know that his Advocate was not a qualified person. But

assume, Mr. Mbogoro was a layman and therefore an innocent client, would the decision of the

court still be the same?

At this juncture, one could probably say whatever ambiguity that might have existed in the past

regarding the status of documents drawn and filed by an unqualified person must now be taken

to have been resolved by the decision of the Court of Appeal in Edson Osward Mbogoro v Dr.

Emmanuel John Nchimbi & Another (supra).

3
And of course, in several occasions, Judges have taken a similar stance as laid down by the

Court of Appeal in Edson Osward Mbogoro V. Dr. Emmanuel John Nchimbi & Another

(supra). There is a long line of authorities which followed that position.

For instance, in the case of Islam Ally Saleh v. Akbar Hameer & Another,3 an Advocate

was practicing without attaining a practising certificate. The court found the said Advocate

guilty of an offence under the Advocates Act and of contempt of court. The court went further

and nullified the pleadings because it was prepared by an unqualified person.

Another case is Kilimani Dotto Richard v. Geita Gold Mine Ltd,4 this was a second

application for revision following a refusal of extension of time. The first application, was

struck out by the court (SIYANI, J.) for having been drawn by unqualified person Nyanjugu

Sadick masudi. Nevertheless, the applicant engaged the same unqualified person, who again

drew him the present documents. The court (RUMANYIKA, J.) stated that:

“It is very unfortunate that even when for the same reasons this court

struck out the application and the decision had not been reversed, yet

still the same applicant did engage the same unqualified Nyanjugu

Sadick Masudi whereby hardly 4 days later he drew him the present

documents. What a mockery! With the lapse say of four (4) days it

wouldn’t be said that the applicant and the notorious unqualified

Nyanjugu Sadick Masudi had lost the memory.”

Although, the applicant prayed for adjournment this time to prepare and engage a qualified

person. The court rejected and held that:

3
Civil Case No. 156 Of 2016, (HC) (DSM) (Unreported).
4
Labour Rev. No. 112 of 2019.

4
 “One should not have asked for adjournment of the incurably defective

application. …unlike a competent matter an incurably defective matter

cannot be amended or adjourned”

The application was therefore struck out.

Perhaps one would say, that was the position before the overriding objective, but even after the

oxygen principle is enacted,5 still courts have consistently ruled that a document prepared by

an unqualified person does not have legal value in courts. So, it is not certain on whether the

court can rely on the overriding objective principle so as to uphold substantive justice in favour

of the innocent client who engages the services of the unqualified person who appears before

the court while well aware that he is not qualified?

For instance in the case of Baraka Owawa v. Tanzania Teachers Union.6 This was an

application filed under a certificate of urgency moving the court to grant various orders.

However, the court discovered that Advocate Goodluck Raphael Lukandiza, who attested the

signature of Obaraka Owawa was unqualified person as he had not renewed his practicing

certificate as it appeared in Tanzania Advocates Management System (TAMS now e-Wakili).

The court dealt with the following issues:

1: Whether this application was valid and competent in the eyes of the law?

2: What is the status of the documents prepared by an unqualified person?

When called upon by the court to address the issues, Mr. Ludovick Joseph, learned Advocate

for the Applicant prayed for an adjournment so that he could contact Goodluck Raphael

Lukandiza, on his practicing status. The matter was adjourned for half an hour. Thereafter Mr.

5
The overriding objective was introduced in the Civil Procedure Code, Cap 33 by the Written Laws
(Miscellaneous Amendment) (No. 3) Act, 2018 [Act No. 8 of 2018] in which sections 3A and 3B have been
added in the Code. The purpose is to serve substantive justice.
6
Miscellaneous Labour Application No. 6 of 2020, High Court of Tanzania, at Musoma, (Unreported).

5
Joseph came up with a new story which surprised the court. He submitted that, Mr. Lukandiza,

was not even a practicing Advocate, but he was either a law officer or a state attorney

employed by Musoma Town Council. He however, moved the court to proceed and hear the

application as it is, arguing that Mr. Lukandiza is a law officer or a state attorney therefore he

had authority to do what he did under section 17A (3) of the Office of the Attorney General

(Discharge of Duties) Act, as well as under section 10(2) (a) of the Notaries Public and

Commissioners for Oaths Act.

Alternatively, he asked the court if it finds the affidavit defective, then be pleased to permit the

applicant to file a fresh affidavit taking into account the spirit of overriding objective. It

was found that, Mr. Lukandiza had no such mandate, but he so acted without mandate and such

acting was unlawful as he did not have a certificate permitting him to act as a commissioner

for oaths, but still he attested the affidavit of the applicant. The court (GALEBA, J.) held that,

“The documents prepared, endorsed or work done by an

unqualified person does not have legal value in courts. The reasons

are not far to find, first such work is a result of criminality and deceit,

secondly the work or document lacks legality.” [Emphasis mine].

Regarding the status of the application, it was found to be invalid since the affidavit

which supported it has been expunged. The court rejected to invoke overriding

objective principle to maintain the application and afford the applicant time to

make a proper affidavit. The court struck out the application holding that:

“Overriding objective is not applicable in the circumstances of this

case. The principle is not aimed at being a nursery within which to

fertilize and lead to germination and growth of illegal and criminal

practice of law...” [Emphasis mine].

6
At this juncture, we see the practice has generally been that where the pleadings are filed by an

unqualified Advocates, the defect is incurable and the only remedy is to expunge the pleadings

and strike out the case, as it was laid down by the court of Appeal in Edson Osward Mbogoro

v Dr. Emmanuel John Nchimbi & Another (supra).

That was also the position in the case of Standard Chartered Bank (T) Limited v. Best

Travel Solutions Limited,7 in which, Mr. Sylvester Kakobe Kanabo, prepared and filed the

written statement of defence to the counter claim for the 1st and 2nd defendants without a current

practicing certificate. Whereby, he has been practicing without a current practicing certificate

since 1st January 2020 up to 2nd September, 2020. Up to that time, Mr. Kanabo had not yet

made an application for renewal of his practicing certificate. There were two issues for

determination before the court:

1: What is the fate of Mr. Kanabo?

2: What is the fate of the pleadings prepared by Mr. Kanabo as an unauthorized person?

In response to the first issue, the court found that, Mr. Kanabo was an unauthorized person to

practice and his conduct is a gross misconduct punishable under sections 41, 42 and 43 of the

Advocates Act. The court pointed out that, there were two punishments it could give to Mr

Kanabo, which are suspension from practicing and removal of his name from the Roll of

Advocates. However, the prayer to suspend Mr. Kanabo was found inapplicable, because he

was not a practicing Advocate for want of current practicing certificate, despite his name still

being in the Roll of Advocates. Then, the only punishment, the court could give under the

circumstances was to order his name be removed from the Roll. However, in its wisdom, the

court referred Mr. Kanabo to the Advocates Committee for further action.

7
Commercial Case No. 16 of 2020, High Court of Tanzania, Commercial Division at Dar es
Salaam (Unreported).

7
Regarding the second issue, the court was guided by the decision of the Court of Appeal in

Edson Osward Mbogoro v Dr. Emmanuel John Nchimbi & Another (supra) and ruled that, the

written statement of defence to the counter claim which was prepared by Mr. Kanabo was of

no legal effect. It therefore expunged it from record and afforded the defendants time to file a

proper written statement of defence so as to enable the suit to proceed from where it ended.

Likewise, in the case of Wellworth Hotels and Lodges Ltd v. East Africa Canvas Co. Ltd

and 4 Others,8 The plaintiff, a company, sued the defendants for breach of contract. In their

written statement of defence, the defendants raised four preliminary objections, inter alia that,

Mr. Yassin Maka, the Advocate for the plaintiff, had no valid practicing certificate at the time

of filing the plaint in January 2020 as he had not renewed his practicing certificate.

The issue before the court was whether, Mr. Maka was a qualified Advocate when he prepared

and filed the plaint? The Court (NANGELA, J.) made reference to the cases of Baraka Owawa

v Tanzania Teachers Union (supra) as well as Edson Osward Mbogoro v Dr. Emmanuel John

Nchimbi & Another (supra). And, in view of the above decisions, the court held that:

“Mr. Maka was unqualified to act as an Advocate” at the time when he

prepared and filed the plaint, therefore “the pleadings he prepared

and filed in court were of no legal effect.” [Emphasis mine].

It was further held that, Mr. Maka could not benefit from a grace period under section 38 (1)

and (2) of the Advocates Act, because his certificate was renewed on the 3rd day of February,

while a grace period for renewal of one’s certificate of practice ends up to the 1st February of

each year, with retrospective renewal validity effectively from the 1st day of January. The court

proceeded to strike out the plaint because it was filed by an unqualified person.

8
Commercial Case No. 5 of 2020 (Unreported).

8
A similar approach was taken by MLYAMBINA, J., in the case of Marco Elias Buberwa v.

Agnes Kokushekya Elias Buberwa.9 In this case, Mr. Winfred Mathias Mnzava, Advocate

for the applicant, applied for late renewal of the practicing certificate on the reason that he was

sick since January 2020. He applied for renewal on 16th September 2020 and the same was

granted (renewed) on October 2020. He however, drew and filed chamber summons supported

by an affidavit praying the court to grant extension of time to apply for leave to appeal to the

Court of Appeal. During that time, he had not yet renewed his practicing certificate until in

October, 2020. The respondent raised an objection that: Mr. Mnzava, Advocate for the

applicant, had no locus standi for lack of practicing certificate for 2020/2021.

However, Advocate Mnzava, argued that, the issued certificate has retrospective effect

(operates retrospectively). He made reference to section 35 of the Advocates Act alleging that,

the practicing certificate covers the whole year in which it is issued to give legal life (purify)

the pleadings which could otherwise be incompetent for being drawn by unqualified person, it

cannot therefore be divided into months or quarters. He further argued that, the penalty paid by

an Advocate for late renewal of practicing certificate is a compensation and cure of the wrongs

done by advocate. The court raised the following issues:

1: Whether late renewal of practicing certificate operates retrospectively?

2: Whether penalty paid by an Advocate on late renewal of practicing certificate compensates

the wrongs he done?

3: Whether the doctrine of sanatio in radice (utakaso wa makosa yote ya nyuma) utakaso

doctrine, applies to an Advocate who prepares and files documents or enters appearance before

the court to represent a party without a valid practising certificate?

9
Misc Civil Application No. 253 2020.

9
4: Whether the documents prepared by unqualified Advocates will be valid or not?

The court upheld the objection and ruled to the affect that, Mr. Winfred Mathias Mnzava,

Advocate for the applicant, had no locus standi to represent the applicant during the filling of

the application for lack of practicing certificate. And the defence or the assertion that a

practicing certificate acts retrospectively or has to act retrospectively cannot stand and or it

does not hold water since Section 38(1) and (2) of the Advocates Act, provides clearly that the

certificate commences from the day which it has been taken.

Further Section 38(1) covers only practising certificates which are issued during the grace

period of 1st day of January to 1st day of February any year. The proviso under section 35(1) is

not a hiding bush of an Advocate who does not comply with the requirement of section 41(1)

which limits an unqualified person to act as Advocate. It neither gives legal life nor purifies

the pleadings drawn by unqualified person.

It was also held that, penalty paid for the late renewal is a punishment, it does not extend to

cover or rather to cure acts done in contravention of the law. It is neither a purification (utakaso)

of wrongs done by the Advocate nor a compensation for such wrongful acts. Because doing so,

is like giving Advocates the liberty to act without valid practicing certificates with the hope of

rushing to renew the same in remedial of what was done illegally.

In responding to the issue of whether, the documents prepared by unqualified

Advocates will be valid or not? The court made reference to various cases including

the decision of the Court of Appeal in Edson Osward Mbogoro v. Dr. Emmanuel

John Nchimbi and Another (supra) and held that:

“None or rather late renewal of the practicing certificate renders the

same not to be in force, thus; in-operational.”

10
Therefore, Mr. Mnzava, Advocate for the applicant, practiced without a valid practicing

certificate. He committed the offence under Section 41(1) and (2) of Advocates Act. The court

ruled that:

“Whatever document crafted while lacking capacity so to do bears

no legal weight, hence invalid.” [Emphasis added].

It therefore proceeded to struck out the application with costs to Mr. Winfred Mathias Mnzava,

Advocate for the Applicant, on the following reasons:

First, the application was drawn and filed by unqualified Advocate contrary to a statutory

obligation under Section 41(1) of the Advocates Act, second, allowing the application amounts

to perpetuation of illegality/condoning illegality, third, any actions done by unqualified

Advocate are in furtherance of commission of the offence under the Advocates Act, fourth,

Advocates should comply with the law and preserve the honour and dignity of their profession

and fifth, allowing the application could be condoning negligence on the party of Advocates.

Another case which also expunged from record the pleadings filed by an unqualified person is

Fred J. Ostern v. Oscar Msabaha and Another.10 This time it occurred in the District Court.

Whereby, an unqualified person whose true name is Frank Boanarige Kisanga impersonated to

be Advocate. He introduced himself before the court as Advocate Frank Kilian Massae. He

unexpectedly met with the real learned Advocate Frank Kilian Massae. When probed, he was

incapable of disclosing his roll number or produce TLS identity card. After a search into the

system (TAMS now e-Wakili) his name could not be found, signifying therefore that he was

not Advocate at all.

The court determined the following issues:

10
Misc. Civil Application No. 6 2021, (DC) Chunya Unreported.

11
1: What would be the fate of the applicant (client) who hired Mr. Frank Boanarige Kisanga

without knowing that he was unqualified person?

2: What is the status of the chamber summons accompanied with an affidavit together with the

main suit lodged by Frank Boanarige Kisanga?

3: Mr. Frank Boanarige Kisanga being unqualified, what avenue is available against him?

Although the court (MTENGETI, RM) held to the effect that, the client cannot be punished,

for he was not aware that he was dealing with unqualified person and ordered the fake Advocate

(Frank Boanarige) to refund the client all the payment he acquired including legal fees, it

however went on to strike out the suit and documents lodged by Frank Boanarige

Kisanga, for they were filed by an unqualified person. The court held that:

“All these documents are hereby considered by this court to be

lame, impotent and mere trashes which do not even deserve to be

thrown into its dustbin.” [Emphasis added].

The applicant was afforded an opportunity to lodge a fresh application and a fresh suit within

14 days using the same court fees he incurred earlier. And on the fate of Mr. Frank Boanarige

Kisanga (unqualified person), the court said that, “the avenue available is to institute

criminal charges against him.”

That is what has been the court’s position in practice. In short, there are many cases in which

documents drawn by unqualified Advocates have been disqualified from forming part of the

court record. Other cases include Dr. Salim Ahmed Salim v The Editor, The East African

Newspaper & Another, Civil Case No.332 of 2002 (HC) (DSM) (Unreported), Ahmed Jamal v

Yeslam Said Bin Kulaib, Civil Appeal No.312 of 2004, (HC) (DSM) (unreported), Evansi s/o

Bugale V. Jimi s/o Modest, Misc Land Application No. 03 of 2021, High of Tanzania at Kigoma

(Unreported).

12
 II. Cases where the pleadings by unqualified persons acting as Advocates were

not expunged from record

Though, the practice has generally been that, where the pleadings are drawn and filed by an

unqualified Advocate, the only option is to expunge the pleadings and struck out the case,

however some Judges have recently departed from this position holding that, there is no such

requirement in law.

That was the position in the case of Fatuma M. Ramadhani v. Ally M. Juma.11 In this case,

Mr. Heri Mlowezi was an Advocate practicing in Zanzibar but he had no permit from the Chief

Justice to practice in mainland Tanzania. He prayed for the court to withdraw the case with

leave to re-file the same. Also, the client added that as a layman, he had no idea that his

Advocate has no qualification to practise in mainland Tanzania. The court (MASAJU, J.) held

that:

“Section 41(1) of the Advocates Act, [Cap 341] provides for the

restriction of unqualified person not to act as advocates in any court of

law. Section 41(2) of the Advocates Act, [Cap 341] provides for the

sanctions thereto. However, the provision does not state that the

unqualified person’s act of representation shall affect the

proceedings of the case tried under representation of unqualified

person, but rather the provision deals with the unqualified person

thereto.” [Emphasis supplied].

The court ordered the matter to proceed but the respondent shall not have the representation by

the said unqualified person.

11
Civil Revision No. 4 Of 2019, High Court of Tanzania at Dodoma (Unreported).

13
Remember, the fact that the Advocates Act is silent regarding the status of documents filed by

an unqualified person is not a novel issue here, it was also admitted by the Court of Appeal in

Edson Osward Mbogoro v. Dr. Emmanuel John Nchimbi and Another (supra). The same was

restated in the recent decision of the High Court in Marco Elias Buberwa v. Agnes Kokushekya

Elias Buberwa (supra), in which MLYAMBINA, J., while striking out the case, discussed the

reasons which are used to justify on why the case should not be struck out, to include the fact

that, “the section creates an offence against offending Advocate but does not declare the

documents prepared by that Advocate illegal.” [Emphasis added].

Another case where the Judge maintained the submissions of unqualified person, is Afriq

Engineering and Construction Co. Ltd v. The Registered Trustee of the Diocese of

Central Tanganyika.12 This was an application for review of the ruling of the court rendered

in the main cause in which the court ruled that, Mr. Gabriel Masinga, Advocate for the

respondent, was indeed disqualified to practice as an Advocate when he appeared before the

court, but the judge (NANGELA, J.) refused to expunge Mr. Masinga’s submission from

the record and instead referred him to the Advocates Committee.

The applicant filed an application for review on the ground that, the court’s finding for not

expunging from its record, the appearance and submission of the purported Advocate Masinga

who was disqualified to practice as Advocate on the date and time he appeared before the court,

was an error on the face of record. And that, the error was inconsistent with the court’s many

decisions including Edson Osward Mbogoro v Dr. Emmanuel John Nchimbi & Another

(supra). However, the Judge found all grounds of review devoid of merit and dismissed the

application with costs. So, even after an application for review, the Judge rejected to hold that,

the act of not expunging the submission of unqualified person was an error on the face of record

12
Commercial Cause No. 4 Of 2020 (HC) DSM (Unreported).

14
Above all, it is the recent case of Francis Alphonce Namlilo v. Penina Benjamin Warioba,13

in which the High Court distinguished the decision of the Court of Appeal in Edson Osward

Mbogoro v Dr. Emmanuel John Nchimbi & Another (supra).

In this case, Mr. Godchile Chirare, Advocate for the applicant, had a valid practising certificate

when the complaint was lodged, but he did not thereafter renew his practising certificate for

the year 2022 when he appeared before the court on 19th and 21st January 2022, he therefore

was an unqualified person as per section 39(1) of the Advocates Act. He alleged that, there was

a technical problem whereby the system defaulted and could not work properly.

He presented before the court payment receipt for TLS fee done on 21st of January 2022, as

evidence to show that he had started a renewing process. And of course, up to the time of

composing the ruling he has succeeded to renew, even when the Judge visited the e-Wakili

system he found that the system now placed Mr. Godchile in the category of ANARUHUSIWA

(Amehuisha leseni ya uwakili). It was shown that he is active from 1st January of 2022.

Mr. Godchile, further argued that, the proviso under section 38(1) of the Advocates Act

provides for a grace period of one month for an Advocate to practise before he has renewed his

practising certificate. The following were the issues:

1: Whether the legislature intended under the proviso to section 38(1) to give one month free

(grace period) for an unqualified person to practise freely without a practising certificate?

2: Whether the submission done by the applicant’s counsel should be expunged for being made

by unqualified person?

13
Land Revision No. 01 of 2022, (HC), Mwanza Unreported.

15
The court (MNYUKWA, J.) held to the effect that, the proviso to section 38 (1), does not

contain words which expressly provides the grace period for an Advocate to practise without a

practising certificate. Rather, the proviso talks about the practising certificate that has been

renewed on any day between 1st January to 1st February to hold the same status as the practising

certificate that has been renewed on the 1st day of January. For the Advocate to enjoy this grace

period of being valid from 1st January, the certificate has to be renewed as Mr. Godchile learned

counsel did. If an Advocate appears before the court even on any day between 1st January to

1st February without renewing his practising certificate he is not yet qualified to enjoy the said

grace under the proviso of section 38(1) and that Advocate will be an unqualified person by

that time. It is doubtful if the legislature intended to give one month free for an unqualified

person to practise freely meanwhile section 41 of the same Act prohibits the same.

However the court ruled that:

“The submission done by the applicant’s counsel will not be

expunged rather maintained for the reasons that, the applicant

(client) could not be punished for his Advocate wrongdoings, because

he hired his counsel from 2021 when his practising certificate was still

effective.” Also “Punishing the applicant for the wrongs done by

his Advocate on failure to disclose that his practicing certificate has

expired will be a miscarriage of justice to the applicant.” [Emphasis

added].

Moreover, the Judge agreed with the Advocate for the applicant that, the case of Edson Osward

Mbogoro v. Dr. Emmanuel John Nchimbi and Another (supra), was distinguishable with the

present case on the ground that, in that case the grace period had expired and the Advocate had

practised for the whole year without valid practising certificate, while in the present case, the

complainant lodged his complaint in 2021 and by that time his Advocate had a valid certificate.

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However, it appears that the court’s position in that case was influenced by the fact the client

hired the Advocate at the time when the Advocate’s practising certificate was still valid, what

if the Advocate for the client had no valid practising certificate from the beginning when the

complaint was lodged? Would the decision of the court still be the same? Bearing in mind the

words of the Judge that, “punishing the applicant (client) for the wrongs done by his Advocate

on failure to disclose that his practicing certificate has expired” is “a miscarriage of justice to

the applicant (client).”

Therefore, although the law is silent, but in practice the current legal position generally

considers the documents prepared by an unqualified person invalid. Most Judges have been

holding to the effect that, when a pleading is drawn by unqualified person it must be expunged,

and once expunged, then the suit is incompetent, and once incompetent, it cannot be maintained

but must be struck out. It is a practice developed by the courts, but there is nothing in the law

that says that the pleadings prepared by unqualified Advocates should be expunged.

Despite the fact that, it is the Advocates who are usually responsible for the mistakes that render

a case to be struck out, but it is the clients who suffer by the decision of the court which tends

to punish them instead of Advocates by expunging their documents. Let us pose for a moment

and ask ourselves, whether, when the court expunges from record the pleadings because the

same was drawn by unqualified person, is it really doing justice to the client?

For example, it is now a trite law that an Advocate who practice without a valid practicing

certificate is an unqualified person within the meaning of section 39(1) of the Advocates Act

and any submissions done by him will be expunged. However, the question is, why should the

clients suffer for the mistakes of Advocates? Does a client have a duty to ascertain practicing

status of his Advocate before engaging him? It is doubtful if all clients are in a position or have

the means to know that a certain Advocate is not qualified.

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I am, of course, well aware of the decision of the Court of Appeal of Tanzania, regarding the

status of the pleadings prepared by unqualified person as it was held in Edson Osward Mbogoro

v Dr. Emmanuel John Nchimbi & Another (supra). However, as stated earlier, it appears that

the Court’s position in that case was influenced by the peculiar circumstances of the case,

especially when the client was himself learned in law. Assume Mr. Mbogoro, was a layman,

would the decision of the Court of Appeal still be the same?

Frankly speaking, this tendency of punishing innocent clients for the mistakes of Advocates by

expunging their documents has far reaching negative implications in administration of justice.

First of all, it leads to unnecessary delays in dispensation of justice. Because, after a document

which has been drawn by unqualified person is expunged the client will start afresh and re-file

a new suit, along with new costs such as court fees and legal fees. In short, expunging the

submissions of unqualified persons is simply adjourning the matter for a while, since striking

out does not bar the re-filing of the suit. So, it serves nothing useful more than wasting time

and resources of both the court and the parties. Moreover, it is inconsistent with Article 107A

(2) (b) of our Constitution, which instructs the court to administer justice without undue delay.

Second, if this practice continues, it will tarnish the image of the Judiciary and the legal

profession in general. It reduces public trust in the legal system. Although courts have normally

held that, when they expunge the pleadings of unqualified Advocates, they are safeguarding

the image and integrity of the legal profession. However, it is uncertain on how this practice of

punishing the innocent client for the wrongs done by his Advocate, safeguards the image and

integrity of the legal profession. Especially when the court struck out the case without even

punishing the counsel. Of course, there are few cases in which the court referred the unqualified

Advocates to the Advocates Committee or criminal charges, but in most cases Judges end up

in issuing a striking out order, thus punishing only the client while letting the Advocate to go.

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Just to make it clear, it is not the intention here to encourage negligence on the part of the

Advocates, but rather to assess the readiness of the Judiciary of Tanzania to discipline

Advocates rather than innocent clients. It is doubtful on whether the Parliament real intended

to punish the innocent client for the mistakes of his Advocate?

The absence of a statutory provision which renders invalid the pleadings drawn by unqualified

Advocate, may be a sufficient proof that the law intended to punish the irresponsible Advocates

and not the innocent clients. And probably, that’s why some Judges have recently departed

from such practice holding that, the clients cannot be punished for they are not sometimes

aware that a certain Advocate is not qualified.

Conclusion

Without mincing words, it can be said that, striking out a suit because the pleadings are drawn

by an unqualified Advocate, denies justice to an innocent client who innocently engaged the

services of such Advocate. Even if the client will be afforded another opportunity to file a new

case but still it places a heavy burden to the client. Bearing in mind that, re-filing of a new suit

is also subject to the law of limitation. A client may be required to apply first for extension of

time to file a new case if the time has expired. So it consumes more time and resources.

From the foregoing, it is recommended that, the rights of innocent clients should be secured.

The submission done by the unqualified counsels should not be expunged from the record

rather maintained, so as to uphold substantive justice and to save costs, time and resources. The

innocent clients should not suffer for the mistakes of Advocates. In this regard, it is well to

remember the words of MNYUKWA, J. (as he then was):

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 “Punishing the applicant for the wrongs done by his advocate on

failure to disclose that his practicing certificate has expired will be

a miscarriage of justice to the applicant.”14 [Emphasis added].

Before expunging the pleadings and striking out a suit, courts should first observe whether such

striking out is in conformity with the overriding objective principle? Will it be wrong to allow

the suit to proceed from where it ended under the representation of another qualified Advocate?

Actually not. So long as doing so does not result in a miscarriage of justice.

Also, the law should compel all practicing Advocates to disclose their practicing status to the

clients. It should be a duty of every practicing Advocate to disclose that his practicing

certificate has expired or not. This is the best way of fighting negligence on the part of the

Advocates who tend to appear before the court while well aware that they are not qualified.

Similarly, the same duty should be imposed to the client to ascertain the practicing status of his

Advocate before engaging him, but subject to conditions. The client should have such duty

only when it is proved that, considering the circumstances of the case, he should have known

or he had the means to know that his Advocate is not qualified. Example, when the client

himself is an Advocate who should have known or had the means to know that the Advocate

he is hiring is not qualified.

Generally, a client, in particular a layman, should not be responsible for hiring unqualified

person, unless it is proved that he was aware that his Advocate is unqualified one. But, a learned

client should be responsible for not being diligent enough to ascertain the practicing status of

his Advocate before engaging him, provided that, he had the means to discover that his

Advocate is not a qualified person.

14
Francis Alphonce Namlilo v. Penina Benjamin Warioba Land Revision No. 01 of 2022, (HC), Mwanza
Unreported.

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