Appearance in law.

APPEARANCE

Three Modes of Appearance

1.   Personal Appearance

A party in law is entitled to enter appearance personally except where it is a corporation. Corporations can only appear by an advocate.

Iboos Petrol Station V. Blackstone Utility 1955 KLR 20 

A Corporation aggregate has got two types of agents. Agent for ministerial/administrative purposes i.e. manager to cleaner. Agent for Legal purposes who must be an advocate.

NB: A Company’s Secretary though a lawyer is not an agent.

Section 3 of the Advocates Ordinance Cap. 341 define an advocate as a person whose name appears in the Roll of Advocates.

TLCs Act, 1971 -  TLC advocates cannot act where their  employers are not involved.

Zuberi Gigi V. The Returning Officer 1974 LRT n.52 – A State Attorney is an advocate only when he is acting on behalf of the State.

2. By As Advocate Duly Instructed

W. V. Commissioner of Income Tax [1973] EA 187 defines who an advocate is. To be duly instructed an advocate must be able to answer    all the material questions relating to the suit.

Clients verify this by signing the pleadings.

See:  KIWANUKA & CO V. WALUGEMBE [1969] EA 660

BUGERERE COFFEE GROWERS V. SSEBBADUKA [197O] EA 147

KAFUMA V. KIMBOWA HUILDERS & CONTACTORS [1974] EA 91

3. By Recognized Agent

A recognized agent is a person who holds power of attorney.

A power of attorney is a document/instrument by which a person empowers another person to represent him or act in his stead for certain purposes.

The person so appointed becomes an Agent of the Principal.

Order III rule I CPC provides:

“Any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person or by his recognized agent or by an advocate duly appointed to act on behalf or, where the Attorney-General is a party, by a public officer duly authorized by him in that behalf. Provided that any such appearance shall, if the court so directs, be made by the party in person.”

In the case of Hans Nagorsen  V.BP Tanzania Ltd.  High Court Civil Case No. 239 of 1987 (DSM Registry)

Hans was authorized only to settle the claim against the Defendant and not to act as authorized agent in terms of the provisions of Order III rule I of the CPC. Instead Hans Nagorsen filed a suit as the Attorney of the Plaintiff.

Kyando J, held:

“I would readily agree that authorization to settle a claim is not the same thing as authorization to appear, apply or do any act in or to any court within the meaning of those words as used in Order III rule l of CPC. As I see it, Mr. Nargosen was authorized to negotiate settlements out of court, of the claim. He certainly was not, by the above letter, authorized to institute a suit or suits. The institution of the present suit by him was done without authority or power therefore.”

It was also stated in the above case that. “Where a party is unable to sign the pleading it may be signed by any person duly authorized by him to sign or to sue or defend on his behalf.”

In another case, Amirah Ahmed Jaffer V. Abdulrasul Ahmed JAFFER & 2 Others. High Court Misc. Civil Case No.48 of 1992 (DSM).

Mapigano J, stated as follows:

“As every lawyer perfectly understands, a power of attorney is a formal instrument by which one person empowers another to represent him or act in his stead for certain purposes. Under Order III rule 2 (a) of CPC a grantee of such powers is competent to go to law and make application on behalf of the grantor, providing that the instrument gives him such authority, and I am acutely aware that the terms of such instrument should receive a strict construction as giving only such authority as it confers expressly or by necessary implication.”

The trial Judge went on to say:

“By the same token where the principal himself makes or does an application, appearance or act, his attorney has no locus.”