Raheli Kifyogo v Kanjinga Mwashilindi (PC Civil Appeal No. 56 of 1997) [1998] TZHC 2379 (30 April 1998)

'' IN ~ HIGH COURT OF TANZANIA AT :!BEYA (PC) CIVIL APPEAL NO. 56 OF 1997 (From Mbozi District Court Civil Appeal No. 16 of 1997 - Bfore: J.L. Lupenza - Senior D/Magistrate) RAHELI KIFYOC'iC • o •• ". o........... APPELLANT Versus KANJINGA MWASULINPl 000000000000 R"ESPONDENT JUDGMENT S)SHI 2 J. This second appeal raises an important question of law which centres on I• .. the ;i;tof'legal representation. One of the grounds of appeal preferred by the learned advoate for the appellant, Mr. Mbise, was that the appellant, his client, was unjustifiably denied her right of legal epresentation at the hearing of the first appeal by the District Court of Mbozio That ground of appeal, as I intend to demonstrate, suffices 1 in my view, to dispose of this appeal, and I propose, therefore, to exclusively consider and determine it. The case originated in the Primary Court of· Runda. The primary court ;.r- - ii ' . decided in favo of the respol?,dent, and the ·appellant, feeling aggrieved, .:r preferred an appeal to the District Co'urt of Mbozi through the services ef her ' learned advocate, Mr. Mbise; · Mr. Mb:i:se!;."rfuiy·:-an-d--fully exposed himself to the District Court as the learned (;ourisel for~epellant. The learned Advocate

• ,·1~ ...... r had filed the Notice of the intention 'to appeal in time. He had applied for in writing, and received, copies of proceedings and judgment.- He had drawn and :prE:lsented for filing the Memorand~ of Appeal inr· time. He had not indicated in it_that, he was engaged for drawing the appeal onlyo He was, engaged to argue I ll ·• J;he 1:-Ppea~ as wel;I.o . H2 hEJ.d. not e.t any stage not_ifed te istrct Court in a:I}Y m_qnner tht he had withdrawn from the appeal. Likewise, te appellant had not dop.e so. Thus the identity of Mr. Mbise a13 the legalrepresentative of the 1 ap_pE;llt wa.,s duly known by the. District t;:;ourt. On 19.6097 the first appea:i.. was hec'.3.rd in the presence of and th_e respondent,. but in +;he absence oi' Hr. Mbise, and the judgement,

Ill For the purposes of ensu:t'l;llg equality before the law, . j' . the state shall make provisions:-. . , (a) that every person 1 .,shall, when his. rights and ob~~~tions ae being detered 2 be enttled t a faμ;-ing by he court of law or other. bodY; ..s?Ecerned and be guaranteed the right of ap:)ea.l or to another legal remedy against the decisions of courts of law and other bodies whch decide on his rights or interests founded on statutory provisionsd" (underlining mine) A party should not be deprived of the right of legal representation unless cogent and exceptional reasons exist 1 su-::h as, through the faultLlhe party or through the fault of his advocateo It should be remembered that an advocate is an officer of the court and owes a duty to the court as well as to his client. He assists the court to reach a just decisiono Thus it is not only in the interests of ps.rties, but in the public interest as well, that legal representation is recognized as a right. If a paty is deprived of the right of lGgal representation through no fault of his own, and through no fault of his Counsel, and a decision adverse to him is reached, the decision will be quashed on appeal. Of course, the need to . courtp expedite hearing of appeals in . 3 of law cannot be over-emphasizedo But I would, in conclusion, echo the most lucid words of Samatta, Jli (as he then was) in Alimasi Kalumbeta V .. Ro -· High Court Criminal Appeal No. 175 of 1979 (Mbeya Registry) (unreported); that: vtNo one can possibly doubt that speed is a..'1 :L'11portant element in the dispensation of justice. But however good speed may be, justice is still better. The learned magistrates would do well i~1 f:J.ture not to forget that., 0 I accordingly allow the appeal 1 quash and set aside the district court's judgment, and hereby remit the matter to the district court of Mbozi with an order for the hearing of the first appeal ~e nova before another Magistrate of competent jurisdiction in accordance with the procedure prescribed under the law. There shall be

• ;/ I ;. , . t ,, AT MBEYA. 30 April For Appellant: Mr. Mkum be, for ~fr c Mbis e o For Respondent: Absento JUDGE.

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