Valabdas v Attorney General and Others (Misc. Criminal Application No. 3 of 1998) [1998] TZHC 2567 (10 September 1998)

326 TANZANIA LAW REPORTS [1999JT.L.R. a HASMUH VALABDAS h ATTORNEY GENERAL AND THREE OTHERS HIGH COURT OF ZANZIBAR B AT VUG A (Kannonyele, J.) c MISC. CRIMINAL APPLICATION No. 3 OF 1998 (From Original Criminal Case No. 2 of 1998) Advocates - Competence of advocate to act for a client -who is a fellow advocate

• Whether an advocate can represent his partner in a court action - Legal D Practitioners rules. This was an application seeking to disqualify Mr Mbwezeleni, an advocate, from representing an accused person in Criminal Case Number 2 of 1998. Mr Mbwezeleni was represented by Mr Mkonje, another advocate and a partner to Mbwezeleni. An objection was then raised seeking to disqualify Mr Mkonje from representing his partner, arguing that Mr Mkonje, being a partner junior to Mr Mbwezeleni, would on that account not be independent in conducting legal representation for his client. p Held: (i) The advocate is entitled to be represented by an advocate of his choice; in any proceedings. (ii) Obiter: If an advocate is, for any reason, conflicted in his interests in a case, the particular advocate should withdraw from the case otherwise the court or a party G to the case or any other person having evidence to show such conflict of interest may commence proceedings to suspend or strike the advocate from the Roll. Objection overruled Case referred to: H (1) Lobo v. Salehe S. Dhiyebi, [1961] EA 223, 229 Mr Patel, for the Applicant j Mr Toufiq, Senior State Attorney, for the first Respondent Mr Mnkonje, for the fourth Respondent

HASMUH VALABDAS v. ATTORNEY GENERAL AND THREE OTHERS 327 RULING A (Delivered 10 September 1998) KANNONYELE, J.: I was about to hear an application, Miscellaneous b Criminal Application Number 3 of 1998, seeking an order to issue for, among others, Mr Mbwezeleni, learned advocate, to be disqualified from representing the accused in Criminal Sessions Case Number 2 of 1998 on account of an alleged unprofessional conduct. Mr c Mbwezeleni engaged a fellow advocate, Mr Mnkonje, to represent him in the application alleging professional misconduct against him. However, Mr Mnkonje ’ s representation of Mr Mbwezeleni is also being resisted in an informal (verbal) preliminary objection from the bar by both, the applicant ’ s counsel (Mr Patel) and also by Senior State Attorney representing the first respondent (SMZ), Mr Toufiq. Both Messers Patel and Toufiq, learned counsel, contend that Mr Mnkonje cannot represent Mr Mbwezeleni because they are business partners in Zanzibar MM Law Chambers, where Mr Mnkonje is a E junior partner. Whereas the application against Mr Mbwezeleni is brought under section 9(2) rule(6) (sic) of the Legal Practitioners Rules made under Chapter 28 of the Laws of Zanzibar, the objection against Mr Mnkonje ’ s representation of Mr Mbwezeleni is not revealed F under what legal provision it is based. Arguing on his own behalf and his client ’ s, Mr Mnkonje expressed the view that the objection against him is misconceived and unsound in law. He submitted that it has not been shown how by him representing G Mr Mbwezeleni the applicant ’ s case will be prejudiced to warrant his disqualification as counsel for Mr Mbwezeleni. He also submitted that he is not a witness for either of the parties to the case and, therefore, the question of conflict of interest would not and cannot H arise in so far as he is concerned in this matter. Given the objections raised against Mr Mnkonje, Mr Mbwezeleni himself was asked if he had any comments to make on the matter.

328 TANZANIA LAW REPORTS [1999JT.L.R. A All he said was that he needed the services of Mr Mnkonje in order to contain his own emotions during the proceedings brought against him. I must confess that never in my experience of thirty two years at the bench have I ever heard of an advocate being resisted to represent B a party in a particular case other than by way of proceedings preferred against him or her, as the case may be, with a view to his/her suspension from practice or to have his/her name deleted from the Roll of Advocates. Yes, there may have been such instances before but I say I have never c known one before. However, instances of professional misconduct warranting the suspension or striking from the Roll of Advocates are, for Zanzibar, stated in rule 9 of the Legal Practitioners Rules. Sub-rules (1) to (5) all raise specific instances of professional misconduct and although sub-rule (6) is not as much specific but general in character, D it must be read ejusdem generis to the specifics stated in sub-rules (1) to (5). On the other hand, the procedure to achieve the end results stated in rule 9 is provided under rule 10 of the rules. It is there provided by who proceedings may be commenced (sub-rule (2)) by E an application to a judge in Chambers (Chamber Summons (sub-rule (1)) In relation to Mr Mnkonje, no professional misconduct is alleged against him. Nor are there any proceedings preferred against him envisaging his suspension or deletion of his name from the Roll of F advocates. It is only his association with Mr Mbwezeleni as professional partners which is said against him. But neither is their partnership as such a legal entity being accused of any professional misconduct so as to implicate Mr Mnkonje in person as a member of the partnership. G It is only his junior position to Mr Mbwezeleni in the partnership which is said against him, it being alleged that he would not be independent in the conduct of his legal representation of his client. In my understanding, however, an advocate who appears for a H client in a contested case is retained to advance or defend his client ’ s case and not his own. This he must do strictly upon instructions and with a scrupulous regard to professional ethics. Remembering that he is an officer of the court and owes a duty to the court as well as I

HASMUHVALABDASv. ATTORNEY GENERAL AND THREE OTHERS 329 to his client, he must never knowingly mislead the court as to the a facts or the law citing Lobo v. Salehe S. Dhiyebi (1). There is the principle under which any advocate is expected to conduct himself in any particular proceedings. True, if for any reason it transpires that there is a conflict of interest between the advocate ’ s B conscience on the one hand and those of his client and or the court on the other, the particular advocate should withdraw his brief. If he does not and someone - anyone: the court, a party to the case or just any other person seized with evidence capable of proof to establish c such conflict of interest between the advocate ’ s conscience and the court and or his client, that person may commence proceedings to suspend or strike the advocate from the Roll. We say there is no professional misconduct leveled against Mr D Mnkonje in this case. I therefore see no merit in the objection raised against him and, there being no proceedings preferred against him envisaging his suspension or deletion of his name from the Roll, it must be presumed, with due respect, that the objections are ill-conceived E and not based on any sound principle of law. As such it must be brushed aside with all contempt it deserves for its misconception, inelegance and unprofessional flavour, contrary to what one would have expected from professional lawyers of such wide experience as those we have f in this case. I am satisfied Mr Mbwezeleni is entitled to legal representation by counsel of his choice with whom he can be assured of those fiduciary relations which at times have been termed as contracts uberrimae G fidei. He has choosen Mr Mnkanje against whom the objectors have nothing unprofessional to say about him. The objection is devoid of merit and not supported by any sound principle of law and is therefore hereby over-ruled. Order accordingly