MAGU DISTRICT COUNCIL AND ANOTHER v MHANDE NKWABI 1997 TLR 286 (HC)

 

MAGU DISTRICT COUNCIL AND ANOTHER v MHANDE NKWABI 1997 TLR 286 (HC)

Court High Court of Tanzania - Mwanza

Judge Mrema J

B CIVIL APPLICATION 3 OF 1997

16 October 1997

Flynote

C Civil Practice and Procedure - Joinder and misjoinder of parties - Person not a

party in original suit seeking to be joined as appellant in appeal proceedings -

Whether proper.

-Headnote

In an application by the two applicants for leave to lodge an appeal against a decision

of the D Mwanza District Council out of time, the High Court observed that the

second applicant had not been a party to the case at the trial in the district court from

which the intended appeal was sought but his name had been brought in for the first

time in the formal decree of the district court. The decree had been drafted by the

advocate for the applicants who had also drawn the present application and joined the

second applicant.

E Held:

(i) No provision of the law allowed the joining of a party as appellant in

appeal proceedings who had not been a party to the original proceedings whose

judgment and decree were the subject of the appeal;

F (ii) As the second applicant was not a party to the original suit from which

the intended appeal originated there was no judgment or decree or anything against

him to legitimise his joinder as one of the intended appellants;

(iii) The decree accompanying the chamber application and proposed

petition of appeal were improper, if not fake, documents as they purported to join a

party who had not been a party G in the original suit;

(iv) The application was incompetent for misjoinder of parties.

Case Information

Application struck out.

Matata for the applicants.

H Kweka for the respondent.

[zJDz]Judgment

Mrema J:

Mr Matata, learned advocate for the two applicants, viz, Magu District Council and L

M Ndaki, herein this Ruling referred to as the first and second applicant respectively,

has filed the present I application on behalf of the applicants under s 14 of the Law

of

1997 TLR p287

MREMA J

Limitation Act (Act No 10 of 1997) basically for one main reason: and that is for leave

to file appeal A out of time. The application is supported by an affidavit deponed to

by the advocate for the applicants, Mr C A Matata, Messrs Matata & Company

Advocates.

The respondent, one Mhande Nkwabi, was the plaintiff in the Original Civil Case No

11 of 1995, in the Resident Magistrate's Court at Mwanza. In this application it is

apparent that he filed a counter affidavit challenging the applicants' grounds deponed

to Mr Matata's affidavit. However, at the B hearing of this application Mr Kweka,

learned Counsel from the Tanzania Legal Corporation appeared and argued the

application on behalf of the respondent.

The facts, as revealed in Mr Matata's affidavit, are as follows: C

2. That the applicant is aggrieved by the trial court's decision -- judgment

entered on the 20 June 1996.

3. That on 21 June 1996 the applicant gave notice of intention to appeal

against the said D decision and applied for a copy of the said judgment and decree --

notice appended, and marked as annexure `A'.

4. ... On 28 November 1996 the applicants drew up a memorandum of

appeal against the E said judgment but could not file the same for lack of requisite

copy of a decree as the Law requires.

5. That on 4 December 1996 because of the delay by the trial court to

supply a copy of the decree, he drafted (ie Mr Matata) and submitted a draft decree

for endorsement of the F Court which endorsement was made on the 12 December

1996 -- application and decree annexed collectively as annexures `B'.

6. ... On 22 January 1997 the applicants were supplied with a copy of the

decree whereupon the applicants filed the memorandum of appeal with a copy of the

said decree. G

7. That the delay in filing the appeal was beyond the control of the

appellant.

8. That by virtue of the provision of s 19(2) of the Law of Limitation Act

10 of 1972 the time requisite for obtaining a copy of the decree ought to be excluded

in computing the period of H Limitation.

Upon these grounds, it is Mr Matata's prayer that this Court makes an order extending

the period allowing the applicants file their intended appeal out of time.

The respondent Mhande Nkwabi countered these grounds I

1997 TLR p288

MREMA J

A through his counter affidavit contending, basically, that the application of the

applicant is baseless because there is not a single ground in the affidavit deponed to on

their behalf by their advocate, Mr Matata, Learned Counsel, which holds any merit as

to the reason for the delay.

B I heard the arguments from both the Learned Counsel, Mr Matata for the

applicants and Mr Kweka of the Tanzania Legal Corporation for the respondent. But,

with respect, and without wasting anybody's time, I wish to state straight away that

this application is incompetent before this Court because of misjoinder of parties in

the application. It is quite apparent in the RM Civil Case No 11 of C 1995 the parties

in that proceeding were Mhande Nkwabi, the plaintiff, and Magu District Council,

the defendant. The second applicant in this matter, namely, L M Ndaki, was not a

party to that proceeding, he was merely a witness for defence (DW). I know of no

provision in our Laws that makes it possible the joining of a party in appeal

proceeding who was not a party to the original D proceeding whose judgment and

decree are subject of appeal.

I have noted that Mr Matata, the Learned Counsel for the applicants, was also the

legal representative of the Magu District Council, the first applicant defendant. If Mr

Matata had wished to E make Mr L M Ndaki a party to that proceeding whose

judgment and decree he is now seeking to appeal from the district court to this Court

he should have done so at that stage. The judgment and decree being sought to appeal

to this Court was given against the lone defendant, Magu District Council, and not

also against L M Ndaki who was only a witness in that original suit. As Mr L M F

Ndaki was not a party to the RM Civil Case No 11 of 1995 there is nothing against

him as a party legitimizing him to come to this Court as one of the appellants when

there is no decree and or judgment against him in the originating Court.

G In the course of dealing with this exercise I have also been reviewing what Mr

Matata has averred at para 5 of his affidavit and cautiously asking myself as to the

appropriateness of Mr Matata's action. The said averment reads:

H `That on the 4/12/96 because of the delay by the trial court to supply a copy of

the decree, I drafted and submitted a draft decree for endorsement of the Court which

endorsement was made on the 12/12/96. A copy of the application and decree are

appended hereto....'

I With respect, I am particularly concerned with the copy of the

1997 TLR p289

MREMA J

decree, which the learned advocate attached to his affidavit as annexure `B'. As to

who drafted it A (the decree) and presented the same to Court for signature, it is

now common ground that the author was advocate Matata, as per his own admission.

This is where the whole mess sprang up. Mr Matata, being an advocate of long

experience ought not, with great respect, to have acted as a lay man, if not contrary to

the doctrine of uberrimae fidei. He (Mr Matata) having acted for the B defendant

Magu District Council in the District Court, there is no doubt therefore that he knew

who were the parties in the original suit, hence any appeal lay against any one of

them. But then it appears absurd, if not unbecoming of professional ethics on the part

of the same learned advocate C to go ahead to draw a decree on which he callously

dragged in one L M Ndaki, the purported present second applicant, as one of the

defendant/judgment debtors. In my mind, this clearly shows that Mr Matata drew up

the decree enjoining L M Ndaki deliberately for his own interest to same. I D say Mr

Matata's conduct in the matter was deliberate because he was very much aware that L

M Ndaki was only just a witness in the original proceeding and not a party thereto.

How hail, in my considered view, a witness could just out of blue sky be made a

judgment debtor in a decree whose subject matter the purported defendant/judgment

debtor was never a party! E

Other documents filed by Mr Matata in support of the present application tend to

show openly that the learned advocate was not acting with clean hands. For example,

the Notice of Appeal issued by him on 21 June 1996 included L M Ndaki as the second

defendant, a fact which Mr Matata knew or F ought to have known to be false. It is

on the foregoing circumstances I am inclined to the view that the said Learned

Counsel has not been acting in good faith and according to his professional ethics.

In the upshot I am satisfied to say that the decree accompanying the Chamber

application, and also G the proposed petition of appeal to this Court are nothing but

improper if not fake documents as they purport to enjoin a party who was not a

defendant in the original suit. And this, in effect, renders the entire application

incompetent before this Court and, therefore, invalid. In the result I strike out the

application with costs to the respondent. H

1997 TLR p290