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I. .... IN THE HIGH COURT OF TANZANIA .J ' - :.:' :: ·. AT ARUSHA .i. CIVII,. CASE NO. 51 OF f997 :,., '·· :.DAVtn·w.L. READ ••• ~ .• , •••••••••••••••• ·~ ••••••• lST PLAINTIFF .. ARCHIE BALD STIBLING ElCECUTOR QF THE ESTATE : OF ilts LATE FATHER ·co1. -.w.J •. STIRLING .... , through his Attorney DAVID W.L .• READ.· .. ;. ' . {The .. .lst Plaintfft)· ......... o ...... u.•••• 2ND PLAINTIFF MRS. SUSAN PRETZILIK through her Attorney· Davi,d, v.L. Read (The 1st Pla:i..ntifr·f ·u••u 3RD PLAINTIFF · GEO%E WRIGHT through his Attorney· .. ·/i · 'DaYicf W.L •. _Read ( The 1st Plaintiff} ~ ;·J~. ••• 4 TH PLAINTIFF .. . :. '. . . ; '• ~ .. ""-. ':':•• .. ' Versus .i ''THE .. NATIONAL AGRICULTURAL AND r·XD ;· .. -:,,, _' . . :: .. -:::• .i ,;· · .. :C6fif_911A.TION '•. ~· •••••••• ~. • ~ •••• •• •. • •••• • ~;•

• ·:.i. '<: : .. . :/S. ;tRKUT.A' R!\NCH LIMITED • •. • •• ••• •. • • • •• 1ST DEFENDANT 2nd DEFENDANT ··, ,./.t>· 'THE:M~~~~::;RLA, HOUSING AND ... , .. ·: :.· ···URBAN DPMENT •••• ~ •• •. ~ •-•:• •·• ~ •••••• . • . -7: 'THE COMMISIONER FOR LANDS •••,•••••••••·•·•••:• . . . : ·, THE A TTO!lNEY--:.GENEfiAL . - ~ ~ • ·, • ~ • •. ." •••••••• • ,· • M/s ,:TAL ;AmAN:tA :tTD. o· ES.· SALAAM •••• ...... 1 1 ,, I ':'" . . . .. E 1 M.K. RUTAKANGWA, JUDGE. . . :) .. · ;RD DEFENDANT 4 TH DEFENDANT .. 5TH DE.'FENDANT 6TH DEFENDANT ·· Land, one of the most precious natural resources anywhere ·under t·he sun is t:':th core· of the· protracted dispute between the .four (4) Plaintiffs on the one hand ancl the six (6) Defendants on the other. . . : . . The +and· under dispute is comprising: of :n,·650 acres and is sit'l&ted at Derkuta area 'of .Mbulu pistrict;· .Arusha Region. . . .. : ,. : .. : ; . ~ .. : . . . ·. The Plaintif~~ in the 1s'uit', going by para 9 of the· Plaint are ;.,,' claiming o be .t~~ ,.9sha,reholder; ·or·· :ompa know as M/S fl.grictal· I • ), '.. .. : •• : : l I , I ' • • •• • • i": . .. .. Developnent .and ¥1'1v.strial company of _Ta~~nyika,.,(the company). ,,This ' • • • .' • I • • • ·, - :. .: •: (• • 1;, ;.,, ••: •. • • :• • • • • • ' '; • • : , • ·. _:. ,.·:. • claim'• is being aggr.e_ssively-· dim:ied by, all ,the Defndants 'in the· suit • . : .. : Th~-, ·Pl~:'int.iff;' '{;im to the e ff eet that th,;= pa~ had acquire'd the . . : land in dispute ( the s1.4~·+and) and. livestock ;s · also being hotl1 . denied by all the, ~~~nJ~·nts· eept the 6~h fendant . .

2

It is the cla:i.11,of the Plaintiffs that in 1975 when they were forced by the Immigration authorities to leave· the country they left behind the suit land and other assets "in the care of the 1st Defendant who was negotiating with the 2nd and the .3rd Paintif fs to take over their said compay"• And again this is being disputed by the Defendarits. In para 13 of the Plaint, the Plaintiffs are claiming that: il[O]n the date. unkn:own to the plaintiffs but before the end of 1975, the 1st Defendant taking undue advantage of the situation took over all the aforesaid assets of the Plaintiffs above'.' ·said company with the understanding to compensate them fully and conclude the deal on a_.future date and until then ·to hold' the same as their care taker, bt!,t to the surprise of the Plaintiffs subsequent to their. departure the 1st Deferu:lant unlawfully and frauduleptly and without any considerati?n.appropriated to its use all the assets of the Plaintiffs of.which they are and were at all material times the owner'arld entitled to their enyoyment and possession. 11 Again all the Defendants have categorically denied these 'allegations in their written Statement.of· Defence. It is farther being claimed by the Plaintiffs that the 6th Defendant being fully aware of the Plaintiff's rights and interests in the suit ' properties. purchased the same from the 1st Defendant.::: They are also averring iJ1 para 19 of the·ir Plaint that in so doing, ''they played an active role in the unlawful and frudulent transfer of the said properties by the.1st Defendant." The sale agreement was entered into on 1/12/1993. It was drafted and attested by one Emmanuel Dismas Kisusi, learned advocate, who happens to be counsel for the 6th Of course all of the_ Defendant while not Defendant in this case. /..,•· ' . denying the existence of the contract, . have resolutely -disputed the serious allegations of "unlawful and fraudulent transfer" · and are putting the plaintiffs to strict proor' thereof. It is this sale agreement and more so it's havin[{ been drawn and attested by the· said ~~ Kisusi which prompted _this. ruling at>this early stage of the proce4.ings • J I

.. == 3 ., Whether by design qr .}?y ci~~idence, ·Mr. Kisusi, happens to the. 6th· • :'·• . ~ • • ' '< • • I Defendant's counsel in t_he case. Of course .the Plaintiffs are .being represented by Mr. Chadha, learned counsel. Mrs •. Lyimo, learned. • • ' -< , I, • ? ' • . , . . .. ,. . . Principal State Att9rney is dfending the 3rd, 4th and 5th Defendants, ' . while Mr. Unbulla and Ms. Bigeye learned counsel, are taking are of the defence of the 1st Defendant. _. The motion which has neces_sitated this ru1irig was moved by Mr• Chadha, and "the same was directed against Mr. Kisusi.• .. { The motion was made orally after Mr. kisus:t···consenting to it in order __ to sav tμie. On 2oth August, 1999 whEl"ri the court was st (and ~ ": . . ' . the parties. wer.e<,indeed ready) to ·hea'.r -aruf r·ule on the many preliminary objections· -aissid 1:>y all the Defenci'ants in. their, separate Written·.· ... '• : . . . . Statements of Defe,nce:, Mr. Chadha.; exhibited the ·card_ up his sleeve. l · .The learned counse],. told this court that he had just discovered that . -.. .,_; Mr •. -Kisusi was a potential witness. in the cae. Mr. Chadha. 'predicated, this surprise assertion on the undisputed fct. that the said Ui~''Kisusi ,; was the author and attestor of the earlier menti1:_1e sale agree·ment .. between the 3rd Defendant and the 6th Defndant. It is the cciritention and prayer of Mr. Chadha that because . 1 'this document" is very crucial .. ' •',. in the case II, Mr. Kisusi should eit}::J.er withdraw· from; th ase ori his . "' . •' . own or be forced by the court to do so. He sought·to rely on the ··, . ruling of this eourt in the __ case of '14/S SH/1.HilJS .LTD. , V ~ _ EVERWEAR. LTD, Civil Case No. 74 of 1987. In that case leading:·,,counsel. for the -· · barred from defending the defendant Defendant was, as a matter ofPJ'\lrl,r,..,,M las in 1982 and 1984, be.fore the:.:· he had t.:. suit was institutedL"attested to two.-documents ·respectively which • ''were to be tendered in evidence during the hearing of the case"•· :·· .. ' ' :•-; Mr. Chadha, .wh,ile .not spe,cif;ying which paty was likely to p:ut Mr. . .. . . : . , . . . Kisusi in the· witnes':i box simply claimed that he could be_ called: 'by . . .· ... . ' _·: ... . ··::,; . . . .: .• . "anybody, more so by th~.:Pl;aintiff"~ ·Mr.-.Chadha's other best card· • • O ' • O ,'• O 1 0 ••• •• '•IH •.' was his ··pleia 'that Mr •. Kisusi 'be - barred in this case "purely as a matter :df eithics•. 1 ~ He wa's,'·on this latter argument, r~lying on the· Rules .df'"ProfeSsional conduct and Etiquette, of· the Tanganyika Law _. - ;. Society.Incidentally the same Rules (and ·indeed ruie 36 of the Rules) . ') "\ ., . ··•.::

4 == was relied upon by Mr. Kisusi in his defence 8 ' .·, ' . ' The ·appiication of·M~. Chadha has oen forefully challenged by Mr. Kisusf, calling it "uptenable iri law as we:Ll as in fact." He ' ... deprecateid Mr. Chadha's _faj..le, to br to the attention of the court" . ' "any provision of the _law which disqualifies an advocate who attests a document which is referred to in the pleadings from representing the parties".· Mr~ ·,KiSusi went farther and contended that on the facts, he cannot even be pinned down by the provisions of section 7 of the ',, ·'· · Notaries Public and Commissioner for Oaths Ordinance, Cap. 12/'for; as; .· he put it, in attesting the sale agreement, he was only exercising ·· the powers of _9- Notary Public and not a Commissioner for· Oaths • . ·':'. . If I may be penni,tted -t.o. digress at this juncture I.would ·venture to pose to myself-·this question. Assuming Mr. Kisusi was exercising his powers as a commissioner fqr oaths when dealing with this d6cunent in 199}, would that occasion }}ave constituted sufficient cause in lw . ' . to bar h:im from acting. for any -of tl1e _.partis to it in this· suit? To . ~ , .·· .. •;. answer this question one· ha~ to 1,ook at the relevant section? of Cap. . . . . . . . 12~ The same reads as {olJ..o.ws:~ " '?.. No Commissioner for oaths shall exercise - any of his . . powers as, a Commissioner for Oaths in any pr0.:,c8dings or matter 41 which he is advocate to any of. the .parties to the proceedings· or matt·er or in which he- is, intersted. 11 .. · . I will now returp. to my question and answer it through the words of ·.. .,.i· Mroso,. J. in. SHA!UNS LTD.-,_·case, because I- am in full agreement with him,. He said: ., "I understand the ban in section 7 cited above refer to a .situation in which after a proceeding of matter is before the .. .. . , ,:- : ·· .. , . court; an advocate ·exercises his powers of. Commissione. :fo:r . . - , - oaths ·:knowing that M.-. is an advocate for a party in ·the · · proeeeds_.and (sic)° matter. The section doc: not 1mp()f?e: · a ban on ·an advqcate ip.- respect. of all proceedings, past, _ _ _ present and future·, in which he· was or will be an advocate.~~-'it Given the undispted ;ac~ tat he said agreement} was enterd .into and attested in ·1993 when this suit whici w~'s ·riled °i~ ·1997: was not -in ·.; .... 1

c:c ·5 == the contemplation of any of the parties, r{r. Kisusi must rest assured that ·his positio·~ -i~ ·nt' hrted -b~ sai~ ;.ction . of·. c.;:. 2. • • • • • • • • • ;. • - .,. .j. ·,- ••• :-:. ..... • --r. . . . .:· ·. . . . .. . .. , !returning, to Mr. ~~Susi's argument;i.n his defence, the learned counsel h.s urged this court to . .recogniz~~the fact, which I do; that he is appearing in this case· .for.' th. 6th Defendant in .his·, capa'c,:ity : , as an advoc.ate. As a caveat, more than ah adjunct, c.ounsel ·went farth<:i.r: \q,.t(;lll. the court that his right, to appear in• that: capacity 11 ca.n.,:no.~ be J~:ttered away simply because, 11 · he: "witne·ssed ·a document .. which may be. referred to in these proceedings:"• On whether he would be ·a witness in the case Mr. Kisusi made it, clear tha:t for his part he was sure he was not going tq be one and castigated hts learned . . ~ : . . . ' . friend for being unclear o.n .whether. he -1ill. actuall_x be .one. He ! ,, ' .:, ' . therefore invited this court not to be .ed. by. the "conjectures" .of counsel for the Plaintiffs. As Mroso, J. aptly 0 1 ·served in .the SHAHINS :.LTD. ·case, he ·was:•;not · aware of any "statutory or case law ~~ovision which bars an adv 1 cate·:. · in a case from being called as a witness in the same· case." i have', .. : unfortunately, fourid myself in the same b,oat. However the learned:· .. / ... Judge never found himself crippled by the, situation. For he ·went .<•-·• to hold: "••• but,· dpending on the nature 'of the evidence he is to give in the case, an advocate could. appear: as a ,itness in. a case in which he is advocate for one of the .parties. If, for example, his evidence is l:i1iited · to prodctin ,,·. of a docunent as evidence in the ·case, :·I-:can see nqthing. , .. wrong in principle in calling an advocate in the case. to be called (sic) by a party as a· witn ss. " · · ; :,;•, · · ... • ·.,.. ·-· ':..~ 1;l I am in full concurrence with my broter judge on this nd this seems . . . . . .... . .. :: . . to be the stance of the Tanganyika Law . SocJety ( the T .L.C.) as evidenced • ' • I• • I by its earlir m.entione Rules. 'J."he provis9, t,o Rule .36 unquivocally • • =-- . ~ . • • . . '•. provides that: "••• this rule. does not .Pre,t, an_ Adv,~~te from giv~ ev,!_a'ne whether verbally ·or by declaration or;affidavit on fonna.i or non-contentious matter of fact, in any ·matter ·in which he~ . ••• /6

In the"'SHAHINS LTD' case ·this ,9ourt in the ~~clia;-circJ!!!stances of that case, propeded t,o bar leadi coμnsel for the fend::- ··<-This··---. . ., . . ~ - ; . ' : ' - was because it was. of the view that if the said counsel were to be . . . . . . ' "called as a w.itne.9s in espect of the documents in t:ihich he was commissione for oaths he is likely to be cross-examined on matters of ,·.,·. significant substance nd put him an awkward position as advocate for the defence ••• II The most, regrettable .thing here _is that Mr. Chadha r · .. , never told us ... whtit the facts in SHAHINS LTD. case were •. The best· I can say here is thathe ase at ha;d the parties to the sa:le agreement are not in dispute over it or at all',, I am, of course, aware ·of one Engl;i.sh court. decision on the issue which is cited by the learned au:t}'lors of HALSIBURY 1 S LAWS OF ENGL.I.ND', .. · . \ . . .. . . . 3rd Frlition, Vol. 3, para 12 at page 68. This is the case of R.V. SECRETARY OF STATE FOR INDIA, μ-Earte, EZEKIL [1941]' 2 All .ER 546. .. . . . .. In that case Junior counsel was called. upon to prove certrain aspects of Indian· Law and then proceeded to· cd;tinue acting as counsel: in- the_ case. It was held by Humphreys, J., with the full concurrence of .. Justices S:inglton and Tucker that "this was irregular and co:or ·•·•-,y- to practice - "• .-.He should ra,t act as both counsel and witness." · This case was cited by Bramble, J• in a Tanzania case of B'AFFERALI AND ANOTI:IER V. BORROISAW AND A'.NOTHER ( 1970) HCD. no. 324 which as brought t, .. y attention by·Mr. Kisusi. In JAFFERALI'S c,q_::,,· Bramble, J. referred to the case of GANDESHA V. KILLINGI COFFEE' ESTATE LTD. (1969,) E.A. 299 in which Platt, J. "expressed disapproval of counsel being' witness and counsel in the same case e .. " Both were at a disadvantge because, as Bramble, J. put it, there had ''bel=ln no code of practice in Tanzania" as was the case in England where the, Generl council of the Bar, in its Annual Statement in 1911 had issued such gμidance. That practice • J' I • i • guidance as quoted by Bramble, J •. are to the effect that: "~~a barrister should nt act as counsel and, witness in thJ · same'•·case; and he Should not accept a retainer in 'a case· in which he ·had reason to believe ,he will be a w,itrtess and i:t being engaged in a case it becomes apparent ~that· he is a witness on a materi.U question of fact, he ought not ,to ••• /7

== 7 -- = continue o appear if he can retire without Jf:ppardising his client's interests,." at page II. Happily enough, r' am· not as handicapped here as were my learned brothers in the above cited decisions of this.court.- Apart from these persuasive authorities, which I hmbly follow, there are also the Rules of Professional conduct of the T.L.S.(the -~~es) to go by. Of particular relevance to this ruling are Rules J6(e) and .37('6). They read as follows: 11 36. WITNESSES: (e) No Advocate may appear as such before any court or tribunal iri any matter in which he.has reason to believe that he may qe required as a witness to give evidence, whe,tJ').er verbally or by declaration or affidavit, ·and if, while 8:Paring in: any matter it become~ apparent that he 'will be required __ as a witness to give evidence whether, verbally or by declaration or affidavit, he shall'-not continue to appear: Provided that this rule does not prevent an Advocate from .giving evidence whether verbally o~bydeclaration·or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appe.ar~• '3 7 •· GENERAL: (3 ) (b) A lawyer should not act on behalf:· of · a client · in any proceedings in which he knows that he is likely to be : called as a witness except to give :some purely formal proof in evidence (e.g. of the due execution of some i docU'llent. 11 ) Again it is wort!'). ,PO_inting out without hesitation that these are rules of practice anf'not rules oi la~, although their breach will ·, ,·, never be condoned by this court. 'that is why Bramble, J. (supra) rightly made this observation: 11 /\ny rules of practice are rules of etiquette and while a court will be deligent (sic) in seeing that they are not violated I carmot see that it has any power to make an order to prevent an anticipated violation. Whether or not the respondent .will be called as a 'witness is .still a matter within his di.scre~ion. Until he is · so called there can be no violation of atry rule of practice."

·---. 8 = -.__ Both under case law and rules of practice be'it in England or this country, we. have two S:ltuati~~s whereby counsel can be called upon to •• '. '.,l•. ,..- ,• • "\•• · disqlify himseli and/or .;·forced (as a matter of prudence) by the court }o withdraw from representing his client in any proceeding• The first instance which is directly relevant here, envisages a situation ~~~re, counsel himself/herself knows or has reason,t.o believe tpat he/she may be• required as a witness to give evidene. · On this ~ .. · .. -\ . one it is difficult to draw h;rd and fast rules to bind such couneel ·'< simply because such knowledge or belief is. ,a subjective· one. All will therefore, depend on the good conscience of coi.msel concerned. It is very difficult for ·the trial court at the stage of the pleadings to disqualify counsel on this ground .. unless this is patently obvious. We leave it to the good Judgment of _courisel concerned, ·until it becomes apparent and/or, obvi.01.1s that he/she will/of necessity be e.quired t testify on a material fact in the case•"·. To the cse at hand, Mr. Kisu.si ' has assured this court that he does not know and e has no reason to believe that he is going to testify in this cse. I am. not in a ,, ?. . ::,:·:• privileged position at this stage· to render atj,, in:!c•cable .judgement ':· ,:.-:.,. .. . . . : ' .,, . on ·him regarding his be1iefsithought and .kriow1edge. This is because • • '.1 .' ' , ! ... ' I cannot penetrate his mind·• As a practising advocate he has indeed ari unf'ettered right to ' '·.=. ,:, . appear for any party in any proceeding unleS!"l some law ·or 0 rule of. '''- . ,; practice in very clear words; forbict•hifn to do so. At this stage I am not aware of such a hindrance also the 6th 09.fendant has a right and ys .• , a· constE!,:i.onal right to .,.,, · · cases . ·. · · be defended by counsel and in this J)8-rti.c.y,lartc:ouri~.1_of his own.choice. . . . ;• ' ., That right must be vigorously -protected bY,rthis,···c6m-t. and it cannot be denied of it on flimsy grounds or feigned viol.;itio.l'.ls of the Rules. Mr. . . ,. Chatlha as already shown, was shy of teling us who in particular will . ' : . nee·d Mr. Kisusi as a witness and for 1.hat purpoe•. Will he be fequired to give evidence on a material fact (facts). or im_ly ,on '.a formal and/ or non-cpntentious matter in the _suit' Mr. Chadl1a.; haJ kept iis in th8 dark and as such it is even impossible to guess, on the material be!'ore ;. '-"·~ ~ '· ••• /9 ·.

= 9 = me that Mr. Kisusi will ever be called to testify in the entire " . proceeding. The 6th Defendant cannot be denied of 'i.t.s constitutional right to be defended by counsel of its:, own choice on the basis of the hypothetical fears of Mr. Chadha. However, I want to make it absolutely clear that when during the course of the trial it will become apparent that Mr. Kisusi will be required to testify on a material issue as opposed to giving purely formal evidence contemplated ·by the Rules, this court will be forced to have him step down if he will be reluctant to do so on his o'm, which might be to the prejudice of his client. Jtll said and done, I reject the application o! Mr. Chadha, with costs to the Defendants in any event. Delivered in ~hambers in the preserice of'Mr. Chadha and Ms. Bigeye for the 1st Defendant and also holding brief for Mr. isusi, as well as Mrs. Lyimo for the Jrd to 5th Defendant and Mr. Raphael for 2nd Defendants this 30th day of August, 1999 at . ' Arusha. Date: "J0/8/1999 C---· E. M. ~AKANGWA ~- 30/8/1999 Coram: E.M.K. Rutakangwa, J. For Plaintiff: Mr. Chadha, Advocate