SAID SALIM BAKHRESSA v ALLY A NGUME 1997 TLR 312 (CA)

 SAID SALIM BAKHRESSA v ALLY A NGUME 1997 TLR 312 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Lubuva JA

B CIVIL APPEAL 31 OF 1997

12 December 1997

(An appeal from the ruling of the High Court of Tanzania, Dar es Salaam, Maina J)

Flynote

C Civil Practice and Procedure - Appeals - Defect in appeal - Proper course -

Memorandum of appeal not conforming with Order IX Rule 2 - Appeal ought not to

be dismissed

Civil Practice and Procedure - Representation of parties - When it can be inferred

that counsel duly instructed

D Civil Practice and Procedure - Summons - Service of - Party claiming non-receipt

of notice although summons served on employee at party's address - Person who

received summons not called to testify on whether party aware of summons

-Headnote

E The appellant appealed against a decision of the High Court which had dismissed

an application to revise a district court civil suit for damages. On appeal there were

three issues which the Court was required to decide, viz (a) whether the counsel who

had appeared for the appellant had been instructed to do so; (b) whether service of

summons had been effected on the appellant; and (c) F whether the resident

magistrate's court had had jurisdiction to entertain the appellant's application for an

extension of time.

Held:

G (i) The learned judge in the High Court had erred in invoking a course of

action which was not provided for by dismissing the appeal when he found the

memorandum of appeal did not conform with the requirement of Order IX Rule 2.

Instead of dismissing the appeal the proper course was to reject or strike out the

appeal or return it to the appellant for amendment: Rule 3(1) of Order IX provided to

this effect;

H (ii) Notwithstanding the impropriety of the order dismissing the appeal in

terms of the provisions of the Civil Procedure Code, as long as the order still

remained unvacated, the remedy open to the appellant was either to appeal to the

court or to seek review of the matter by the High Court: to take the matter back to

the court of the Resident Magistrate I was highly misconceived;

1997 TLR p313

(iii) Generally, there is no formal procedure laid down for instructing an

advocate to defend a A client in a trial: the instructions may be given by the client

himself or any other person on his behalf. In the present case the instructions had

been given by the appellant's nephew. In the circumstances further where the

advocate had filed the written statement of defence; where the advocate had made it

clear in a letter to the original plaintiff's advocate B that he was instructed on behalf

of the appellant; and where the advocate had appeared in court in defence of the

appellants at the trial and had gone to the whole length of preparing for a case and

conducting it in court, it would be most unusual and improbable that the advocate

would not have been properly instructed; C

(iv) In the circumstances where the summons had been served on an

employee of a limited liability company at an address which had been indicated as the

address of the appellant in his personal capacity and the process server had endorsed

the summons to the effect that the appellant was away on safari at the time and the

person who had received the summons had not been called to testify that the

appellant did not receive notice thereof, D the appellant's complaint as to service of

the summons had to be dismissed.

Case Information

Appeal dismissed with costs.

Case referred to: E

1. Kighoma Ali Malima v Abas Yusuf Mwingamno Civil Application No 5

of 1987 (unreported)

Kisusi for the appellant.

[zJDz]Judgment

Lubuva JA: F

This is an appeal against the decision of the High Court (Maina J) in High Court Civil

Revision No 28 of 1985 dismissing an application for revising Morogoro District Court

Civil Case No 16 of 1993. The facts as found at the trial are brief and may be stated as

follows: In Civil Case No 16 of 1993 at G Morogoro Resident Magistrate Court, the

respondent had sued Ally Abdallah Kigozi, Jamal Suleiman and Said Salim Bakhressa,

the appellant who, at the trial were respectively referred to as the first, second and

third defendants. The respondent claimed a total of Shs 9,930,910/= as damages

suffered following an accident which involved the respondent's lorry Mercedez Benz

in H make, Registration No MG 4709. The other motor vehicle Registration No TZC

7632 which collided with the respondent's lorry belonged to the second defendant

and its driver was the first defendant. It pulled a trailer, Registration No TZC 91574

belonging to the third defendant as the registered owner. At I

1997 TLR p314

LUBUVA JA

A the end of the trial, the respondent obtained judgment against the defendants

who were severally held liable to pay him a total sum of Shs 7,948,457/= including

costs and interests. From that decision the third defendant at the trial, Said Salum

Bakhressa, the appellant, applied for revision in the High Court. The application for

revision was dismissed. The appellant is appealing to this Court.

B Mr Kisusi, learned counsel who represented the appellant in the High Court, is

also appearing in this appeal. He has filed an eight-point memorandum of appeal.

From these grounds, it is our view that the following are the issues of substance upon

which the determination of the appeal turns C around. These are as follows:

1. Whether Mr Mbezi had been instructed to represent the appellant;

2. Whether the service of summons was effected on the appellant and

D 3. The jurisdiction of the Resident Magistrate Court Morogoro to

entertain the appellant's application for extension of time.

We will first deal with the question of jurisdiction. This is raised in grounds two and

seven of the E memorandum of appeal. As indicated, following the decision in

Morogoro Civil Case No 16 of 1993, the matter was taken on appeal as High Court

Civil Appeal No 32 of 1994. On 3 August 1994, the appeal was dismissed by the High

Court on account of the fact that it was defective. As a result the appellant took the

matter back to the Resident Magistrate's Court Morogoro applying for extension of F

time in which to apply for extension of time in which to apply for setting aside the

decision of 25 April 1994 in Morogoro Civil Case No 16 of 1993, the subject matter of

the dismissal by the High Court on 3 August 1994. The learned Senior Resident

Magistrate held inter alia that the court had no jurisdiction to deal with the matter

which had been dealt with by the High Court (Mackanja J). As G already observed,

in Civil Revision No 28 of 1995 the High Court (Maina J) upheld the decision of the

Resident Magistrate on the point of jurisdiction.

Mr Kisusi, learned counsel forcefully criticised the learned judge for upholding the

trial magistrate on H the question of jurisdiction. In support of this submission, he

advanced two reasons. Firstly, that the appellant Said Salim Bakhressa had not

appealed to the High Court. It was the first defendant in Morogoro Civil Case No 16

of 1993 who, through the services of Mr Mbezi, learned advocate preferred Civil

Appeal No 32 of 1994 Mr Kisusi urged. That is, Mr Mbezi was not instructed to prefer

I the appeal on behalf of the

1997 TLR p315

LUBUVA JA

appellant. Secondly Mr Kisusi stated, the appeal was dismissed by the High Court on a

mere A technicality in which case the applicant was not barred from filing such an

application before the Court of the Resident Magistrate at Morogoro.

The respondent who appeared in person at the hearing of the appeal did not have

much in B response to this submission. Naturally, being a lay person, he left the

matter to the court to decide.

As the complaint on jurisdiction is based on the High Court Civil Appeal No 32 of

1994, we think it is desirable to examine briefly the manner in which the appeal was

dealt with by the High Court on 3 C August 1994 (Mackanja J). From the record it is

apparent that the learned judge dismissed the appeal because of what he described as

incurable defect in that the memorandum of appeal was not accompanied by a copy of

the extract of the decree. This is provided for under Ord XXXIX, Rule 1(1) of the Civil

Procedure Code, 1966. However, with respect we think the learned judge invoked a

D course of action which is not provided in the Civil Procedure by dismissing the

appeal when he found the memorandum of appeal did not conform with the

requirement of Ord XXXIX Rule 2. Instead of dismissing the appeal the proper course

is to reject or strike out the appeal or return it to the appellant for amendment. Rule

3(1) of Ord XXXIX of the Civil Procedure Code provides to this E effect.

With regard to Mr Kisusi's complaint that the learned judge erred in upholding the

decision of the trial magistrate that the magistrate's court at Morogoro had no

jurisdiction to entertain the application, we have no hesitation in stating at once that

there is no merit in it. As observed, F following the decision in Morogoro Civil Case

No 16 of 1993, the matter was taken on appeal on behalf of the appellant and his

other two co-defendants. That was Appeal No 32 of 1994 in the High Court at Dar es

Salaam which was dismissed on 3 August 1994. Notwithstanding the impropriety of

the order of dismissing the appeal in terms of the provisions of the Civil Procedure

Code, we are of G the view that so long as the order still remained unvacated, the

remedy open to the appellant was either to appeal to this Court or to seek review of

the matter by the High Court. To take the matter back to the Court of the Resident

Magistrate at Morogoro, was, with respect, highly misconceived. The claim by Mr

Kisusi that the Appeal No 32 of 1994 was dismissed on technicalities as a H

justification for that course of action is to say the least, a lame excuse which cannot

invest the Court of the Resident Magistrate at Morogoro with jurisdiction to deal with

a case that had already been dealt with by the High Court. We are therefore I

1997 TLR p316

LUBUVA JA

A satisfied that the learned judge correctly upheld the trial magistrate in the

decision that the trial magistrate's court had no jurisdiction to entertain the

application. This ground thus fails.

The next important issue concerns the instructions to the advocate. That is, whether

in the circumstances of the case, Mr Mbezi, learned counsel was in fact instructed to

represent the B appellant. This falls within ground three of the memorandum of

appeal. Mr Kisusi vehemently maintained that Mr Mbezi was not instructed by the

appellant to represent him (appellant) at the trial. That it was one Islam Ally Salehe

who had instructed Mr Mbezi to represent all the three defendants including the

appellant. In that case, Mr Kisusi insisted, as the advocate appeared in court on behalf

C of the appellant without the instructions of the appellant, the effect of it was that

the appellant was not represented at all at the hearing of the case. The learned judge

like the trial Senior Resident Magistrate believed that Mr Mbezi, learned advocate

had been duly instructed to represent the appellant at the trial. Mr Kisusi strongly

seeks to fault the judge on that. In considering this matter the following factors are, to

our minds, relevant. First, from the initial stages of the case, it is D common ground

that Mr Mbezi, learned advocate was instructed by Islam Ally Salehe (DW2) a

nephew of the appellant to defend the three defendants at the trial including the

appellant. Generally, there is no formal procedure laid down for instructing an

advocate to defend a client in a trial. The instructions may be given by the client

himself or any other person in that behalf. Here, the E instructions were given by

Islam Ally Salehe (DW2) based in Morogoro and who describes the appellant as his

uncle.

F Secondly, Mr Mbezi filed the written statement of defence in the case for the

three defendants including the appellant. Thirdly, from the record, it is clear that Mr

Mbezi makes it clear in his letter of 29 September 1993 addressed to Mr Massati,

learned advocate for the respondent, (the original G plaintiff) that he was instructed

by Jamal Suleiman personally and on behalf of Said Suleiman Bakhressa, the

appellant. He denied liability on the part of the appellant. Fourthly, on the dates set

for the hearing of the case, Mr Mbezi appeared in court in defence of the defendants

including the H appellant. Fifthly, it is most unusual and indeed improbable that an

advocate would go the whole length in preparing a case as well as conducting its

defence in court if he is not assured of the instructions and the attendant fees. With

respect, we do not think that Mr Mbezi, a lawyer of long standing, is an exception to

this practical principle in the legal practice. From these circumstances, I on a balance

of probabilities,

1997 TLR p317

LUBUVA JA

we agree with the learned judge that Mr Mbezi, learned counsel was duly instructed

to represent the A appellant at the trial. We can find no reason to differ with the

learned judge in his finding of fact on this issue. The complaint on this ground is

unfounded.

Then there is the question of the service of the summons which was raised in ground

three of the B memorandum of appeal. The learned judge was satisfied that the

appellant was served. Mr Kisusi, learned counsel has strongly contended that the

appellant was not served. He advanced two reasons. One, that the summons was

served on an employee of a limited liability company which is a separate legal

personality. Second, that as the appellant was at the time outside the country, he was

not aware of the case. Having taken the view that Mr Mbezi, learned counsel had

been C instructed to represent the appellant, we proceed to examine the issue of the

service of summons against that background. We are respectfully in agreement with

Mr Kisusi, learned counsel that there was no personal service on the appellant. This is

so because the notice of hearing which was D addressed to the appellant was not

served on him. According to the process server, it was served on one Holla Salum

Hafidh, an employee of Said Salim Bakhressa and Company, a limited liability

company. As seen from Annexure `SSB4' the process server had endorsed the

summons E in Kiswahili `Bakhressa nimeambiwa yuko nje ya nchi, amesafiri.' This

translates to the effect that Bakhressa is away on safari out of the country. It was

however the same address ie Paa Street Kariakoo which was indicated in respect of

Said Salim Bakhressa as an individual and Said Salum Bakhressa and Company

Limited. With that address used in effecting the service of summons the F question

is whether the appellant was made aware of the case and the date set for trial. In their

affidavits, the appellant and Islam Ally Salehe deny that Holla Salum Hafidh passed

on the G summons or message to the appellant. The learned judge did not believe

them on this. It being a matter of credibility on the part of the appellant, it is

incomprehensible that no affidavit sworn by Holla Salum Hafidh was filed. That

would have supported the appellant's claim that the employee Holla Salum Hafidh

did not pass on the summons or information regarding the case to the H appellant.

Nor is there any explanation by Mr Kisusi, learned counsel as to why the affidavit of

Holla was not filed. In somewhat similar situation, in the case of Kighoma Alli

Malima v Abas Yusuf Mwingamno (1), counsel for the applicant had failed to file an

affidavit of the messenger who was instructed to serve the respondent's counsel to

show the reason for failing to I

1997 TLR p318

LUBUVA JA

A effect the service as instructed. There, this Court held, among others that

counsel's mistake in not filing the affidavit of the messenger was not sufficient reason

for extension of time, it was fatal. In the instant case, the unexplained omission to file

the affidavit of Holla was further testimony raising doubts that the appellant was not

truthful. Accordingly, applying the principle from the B Kighoma Alli Malima's case

(supra) to this case, we are in agreement with the learned judge that the appellant was

served. Furthermore, as Mr Mbezi, learned counsel had appeared and defended the

appellant throughout the trial, it goes without saying that the question of the case

being heard ex-parte does not arise. For these reasons we dismiss the appellant's

complaint on service of C summons.

Before concluding this matter, we would like to comment briefly on the following

issue. That concerns an advocate's denial to have instructions to represent a party at

the trial and to raise that D as a ground of appeal. At the hearing of this appeal, Mr

Kisusi had repeatedly made the point that though Mr Mbezi defended the appellant at

the trial, he had not been instructed by the appellant. This is also apparent from the

affidavits of Mr Mbezi and Mr Kisusi on this point. As observed by Kaji J when

granting leave to appeal, this is a very peculiar and novel aspect pertaining to

counsel's E instructions to defend. It is common knowledge and elementary that

there is no rigid or formal manner in which counsel receive instructions from clients

to enter appearance in court. This is a matter for agreement between counsel and

clients. Under Ord 3 Rule 4 of the Civil Procedure Code, Mr Kisusi urges that the

courts below should have pressed for Mr Mbezi to identify which client among the

defendants he was representing. With respect, we do not agree. On record Mr F

Mbezi quite clearly stated that he was appearing for all the three defendants including

the appellant. The power under Ord 3 Rule 4 of the Civil Procedure Code, is

discretionary and it is invoked where G the court has reason to require an advocate

to produce written authority by the party to act on behalf of such a party. Otherwise,

it is normal practice to take on the word of counsel appearing in court as officers of

the court to be authentic. As a matter of fact, at the hearing of the appeal when H

the Court asked for a written authority from Mr Kisusi to act for the appellant, he had

none! In that situation it is, to say the least, absurd ask for authority from Mr Mbezi

in proof that Mr Mbezi was appearing on behalf of the appellant.

I In our considered view what is important from the court's point of view is the

ascertainment that the party is represented by counsel

1997 TLR p319

of not. In the event that the party is represented by counsel, the court is not bound to

go further A behind inquiring whether in fact counsel was instructed. As a matter of

ethics, counsel as officers of the court are taken seriously and solemnly on what they

say in court. It is therefore highly improper in our view for counsel who has

represented a party throughout the trial to swear an affidavit later on B appeal

complaining of lack of proper instruction to appear on behalf of the party. We think

that this kind of behaviour not only borders on unprofessional misconduct but also

gives an opportunity to dishonest losing parties to start cases afresh or institute

appeals on grounds that they were represented at the trial without their instruction.

This, if left unchecked, would lead to the C perpetration, of injustice and indefinite

litigation in court. It is hoped that the relevant authorities in the judicial and the bar

would be vigilant against a recurrence of such conduct.

In the event, for the foregoing reasons, we are satisfied that this appeal is devoid of

any merit. It is D dismissed with costs.

1997 TLR p319

F