Jafferali and another v. Borrisaw and another Civ. Case 29-A—69; 16/9/70; Bramble, J.

Jafferali and another v. Borrisaw and another Civ. Case 29-A—69; 16/9/70; Bramble, J.

This was an application for an order from the court precluding the respondent from acting as an advocate for the defendants in the certain actions. It was based on a letter written to advocate for the plaintiffs which stated as follows: - “We now consider ourselves free to act for the Vendors only unless and until the matter goes to Court, when of course, the writer will be a material witness.” The respondent replied that the words used in the letter referred to were in error and the application was premature in that he had not been summoned as witness.

            Held: (1) “The case relied on is R. v. Secretary of State for India (1941) 2 A.E.R. 546. In which Junior Counsel was called upon to prove certain aspects of Indian Law and continued thereafter to act as counsel in the case. It was held that his was irregular and contrary to practice. There has been no code of practice in Tanzania as far as I am aware and the practice as laid down by the General Council of the Bar in England has generally been adopted as shown by certain decided cases. In Gandesha v. Killing Coffee shown by certain decided cases. In Gandesha v. Killingi Coffee Estate Ltd. (1969) E.A.L.R. 299. Platt, J. expressed disapproval of counsel being witness and counsel in the same case as also did Seaton J. in Safi Seed Limited v. Ecta (Kenya) Limited & other Revision No. 1 of 1967 (unreported). In the latter case counsel called himself as a witness after he had conducted the case up to that point; he then handed over his brief to another counsel.”

(2) “The practice as laid down by the Annual Statement of the General counsel of the Bar, 1911 p. 11 is that a barrister should not act as counsel and witness in the same case; and he should not accept a retainer in a case in which he had reason to believe he will be a witness and if, being engaged in a case it becomes apparent that he is a witness on a material question of fact, he ought not to continue to appear if he can retire without jeopardizing his client’s interests. It appears to me that the adverse comment in Safi’s case was not justified since a course had been followed in keeping with settled practice.” (3) “Any rules of practice are rules of etiquette and while a court will be diligent in seeing that they are not violated I cannot see that it has any power to make an order to prevent an anticipated violation. Whether or not the respondent will be called as witness is till a matter within his discretion. Until he is so called there can be no violation of any rule of practice. The tenor of the letter under reference shows that the respondent is aware of the particular rule and there is no law under which I can make the order sought. If any positive action is taken which violate the rule the court may than make a ruling. I am of the view that the application is premature and that the court has no power to make the order sought.” (4) The application dismissed with costs.