Jayantilal Narbheram Gandesha v. Killingi Coffe Estate Ltd. & Panyiotis Preketss, Civ. Rev. 1-A-68, 9/9/68, Platt J.

Jayantilal Narbheram Gandesha v. Killingi Coffe Estate Ltd. & Panyiotis Preketss, Civ. Rev. 1-A-68, 9/9/68, Platt J.

The suit proper involves a dispute over a contract between the parties for the sale of a farm. Plaintiff’s advocate, who had acted for both parties during the negotiation of the contract, was called by defendant as a witness. Plaintiff objected that to allow this would amount to an abuse of the process of the court. The court permitted the summons to issue, and in addition ruled that, in view of his role as a witness, plaintiff’s advocate should relinquish his retainer. [Citing Safi Seed Ltd. v. ECTA (Kenya) Ltd., Civ. Rev. 1-A-67, Seaton J., (unreported)]. This partition for revision is concerned only with these ruling (Indeed, the case has progressed no further).

            Held: (1) This petition for revision was brought under section 79(1) of the Civil Procedure Code, 1966. The High Court observed that it could have been brought under the Magistrates’ Courts Act, Cap. 537, ss. 38, 39, as provided by sec. 79(2) of the Civil Procedure Code, which gives the High Court wider revisional powers than 79(1). As plaintiff petition did not refer to the latter provisions, however, the Court limited itself to sec. 79(1). (2) Sec. 79(1) provides for revisional  jurisdiction over decided cases. Whether an interlocutory decree may come within the meaning of “case” is a thorny question on which the authorities diverge.[Citing Hassan Karim & Co. Ltd. v. Africa Import and Export Central Corp. Ltd., (1960) E. A. 396; Muhinga Mukono v. Rushwa Native Farmers Co-operative Society Ltd. (1959) E.A. 595]. The present situation cannot qualify as a decided case under any reasonable definition. “It was an interlocutory matter, unconcerned with the final decision or that of any of the issues before the Court and was concerned entirely with a step in the procedure.” (3) Even if this view were wrong, the ruling of the learned magistrate could be upset on revision (as opposed to appeal) only if the magistrate did not have the jurisdiction to make the order in question, or if he exercised his jurisdiction illegally or with material irregularity. As neither of these are present here, plaintiff has no claim on the merits to relief by way of revision. (Citing Mulla’s Commentary to sec. 115 of the Indian Code of Civil Procedure which is in the same terms as sec. 79(1) of the Tanzania code). (4) “It is well established … that it is irregular, save in exceptional cases for an advocate both to appear as counsel and to give evidence as a witness.” An advocate is an officer of the court, and if the court deems it unwise for him to act in such a dual capacity, he should comply. [Citing Halsbury’s Laws of England, vol. 3, para. 102; Safi’s case, supra] (5) “It was also argued that if the

Application was allowed it would lead to a convenient method of putting counsel out of the case. As I understand it advocates in this country are apparently accustomed to dealing with matters such as these for both sides. That may be, but if a dispute arises which leads to a conflict of interest, and one party wishes to call the advocate as a witness, it seems that the proper course would be for him to act as a witness rather than as counsel for the other side. If this is maintained, then while the present advocate may have to step down in this case, on other occasions other advocates may similarly have to step down, with the result that what is fair to one will be fair to all. Petition dismissed.