IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

(CORAM: MWARIJA, J.A.. KWARIKO. J.A.. And KIHWELO. J.A.^

CIVIL APPLICATION No. 434/01 OF 2019

FATMA AMANI KARUME............................................................... APPLICANT

VERSUS
THE ATTORNEY GENERAL .................................... ......... 1st RESPONDENT

THE 3AJI KIONGOZI,

HIGH COURT OF TANZANIA..................................................2nd RESPONDENT

(Application for Revision from the decision of the High Court of Tanzania,
Main Registry at Dar es Salaam)
fFeleshi, J.IO

dated the 20th day of September, 2019

in
Misc. Civil Cause No. 29 OF 2018

RULING OF THE COURT

24th March & 27th June, 2023

KIHWELO, J.A.:

The central issue subject of the instant application concerns the

decision of the High Court of Tanzania, Main Registry at Dar es Salaam

(henceforth "the High Court") in Miscellaneous Civil Cause No. 29 of 2018 in

which the High Court (Feleshi, Jaji Kiongozi, as he then was) (the learned

J.K.) suspended from practice Ms. Fatma Aman Karume, the applicant

herein, Roll No. 848 under section 22 (2) (b) of the Advocates Act, [Cap. 341
R.E. 2002] (the Act). He further, ordered the Registrar of the High Court to

refer the applicant's matter to the Advocates' Committee for determination

of the complained unethical conduct. The application has been sturdily

contested by the respondents.

We find it crucial, at the outset, to preface our determination with brief

facts which appropriately describes the genesis behind the present matter.

The applicant was up until 20.09.2019 an advocate of the High Court of

Tanzania and courts subordinate thereto save for primary courts. Apart from

that, the applicant was enrolled as an Advocate of the High Court of Zanzibar

and also a Barrister qualified at the Middle Temple.

The applicant was duly instructed to represent one Ado Shaibu in a

Constitutional Petition, Miscellaneous Civil Cause No. 29 of 2018 between

Ado Shaibu and the Attorney General and Two Others. As the respondents

raised preliminary points of objection, the matter was set for hearing before

the learned J.K. who ordered it to be disposed of by way of written

submissions which the parties dutifully complied with.

The written submissions which were dully filed by the parties in

compliance with the court's schedule are the basis of the current application

2
before the Court. The Attorney General, apart from rejoining the submission

by the applicant, raised a very serious complaint against the applicant that,

in her reply written submission she used unprofessional, disrespectful and

abusive language which was full of personal vindication to the Solicitor

General and the Attorney General. The Attorney General went further to pray

that the applicant be reprimanded for such unethical style of arguments

contained in the written submissions.

Consequently, the learned J.K., in the course of deliberation of the

ruling on preliminary objection suspended the applicant in order to pave way

for reference of the complained unethical conduct to the Advocates'

Committee. The applicant is presently aggrieved by that decision and, in an

effort to challenge it, she lodged the instant application which is predicated

on section 4 (2) and (3) of the Appellate Jurisdiction Act, [Cap. 141 R.E.

2002] (the AJA), and rule 65 (1), (2) and (3) of the Tanzania Court of Appeal

Rules, 2009 (the Rules).

It is, perhaps pertinent to observe at this juncture that, the application

was based on 13 grounds which for the sake of clarity and for reasons to be

apparent shortly, we will not reproduce them here, but essentially the main

3
ground is that the learned J.K. acted irregularly, improperly, illegally and

incorrectly in suspending the applicant.

When the application was ripe for hearing on 24.03.2023, the applicant

was represented by Dr. Rugemeleza Nshalla and Mr. Peter Kibatala, both

learned advocates. On the adversary side, the respondents were represented

by Ms. Debora Mcharo, learned State Attorney assisted by Mr. Ayoub Sanga

and Mr. Yohana Marco, both learned State Attorneys.

Before hearing of the application could commence in earnest, Ms.

Mcharo, prayed and was granted leave to raise, orally, four points of

preliminary objection which according to her, the respondents came across

in the course of preparing for the hearing of this application. The four points

of preliminary objection are as follows:

1. The applicant has brought before this Court different parties from
those in the impugned decision;
2. The applicant has filed a notice o f application for revision instead of
notice o f motion as required by taw;
3. The application before the Court has been overtaken by events; and
4. The impugned decision is not amenable for revision.

For the moment, it will suffice to observe that, for the sake of

convenience and practicality, we allowed the parties to argue both the

4
preliminary objections and the application for revision, and the ruling on the

preliminary objection would determine the fate of the application.

We wish to express our profound appreciation to ail counsel who

appeared in this matter for their commendable preparedness and their

ingenuity as well as industry in addressing issues of contention before us.

Prefacing her submission regarding the first point of preiiminary

objection, Ms. Mcharo contended that, the applicant brought different parties

to the instant application from those in the impugned decision delivered on

20.09.2019. Illustrating further, she argued that, the Jaji Kiongozi, High

Court of Tanzania was not a party in the impugned decision while the other

parties have been left out, and hence, they cannot defend their rights. She

therefore, implored us to strike out the application for being incompetent,

citing the case of Salim Amour Diwani v. The Vice Chancellor Nelson

Mandela African Institution of Science and Technology, Civil

Application No. 116/01 of 2021 (unreported) to support the proposition that

parties in the proceedings should at any given time appear as they did in the

original proceedings.

In support of the second point of preliminary objection, Ms. Mcharo

was fairly brief and argued that, the application before the Court was not

5
made in compliance with the law which is categorically clear on the form

upon which any application before the Court should be made, citing rule 48

(1) and (2) as well as rule 65 of the Rules which both require every

application to be made by way of a notice of motion supported by

affidavit(s). She contended that, the application was incompetent since the

applicant lodged a notice of application for revision in total contravention of

the law. Reliance was placed in the case of Gerald Kasamya Sibula v.

Republic, Criminal Application No. 5 of 2010 (unreported) to fortify her

argument.

Ms. Mcharo further argued the third preliminary point of objection in

that, the application before us has been overtaken by events. Elaborating,

she contended that the suspension of the applicant was pending reference

to the Advocates' Committee which has since determined the matter and its

appeal was also decided by a panel of three Judges of the High Court in Civil

Appeal No. 2 of 2020 which nullified and set aside the decision of the

Advocates' Committee and ordered the Registrar of the High Court to

transmit the complaint to the Advocates' Committee in the manner directed

in the impugned order. Ms. Mcharo argued that, entertaining this application

will be an abuse of the court process and will amount to pre-empting the

6
other pending matters especially bearing in mind that the first respondent

has already lodged a notice of appeal challenging the decision in Civil Appeal

No. 2 of 2020. We wish to interpose here and point out that, upon our

prompting Ms. Mcharo was unable to demonstrate whether the said notice

of appeal was before us to enable us deliberate on it.

Arguing the fourth point of preliminary objection, Ms. Mcharo

submitted that the impugned decision is not amenable for revision in terms

of section 5 (2) (d) of the AJA since the impugned decision was a preliminary

or interlocutory decision which did not finally determine the matter and that

the impugned decision was made pursuant to section 22 of the Act, and

according to the nature of the order test, the applicant still had another

remedy under section 22 of the Act, To facilitate an appreciation of her

proposition, Ms. Mcharo cited to us our previous decision in the case of

Tanzania Posts Corporation v. Jeremiah Mwandi, Civil Appeal No. 474

of 2020 and Pangea Minerals Ltd v. Petrofuel (T) Limited and Two

Others, Civil Appeal No. 96 of 2015 (both unreported).

All in all, she urged us to strike out the application before us for being

incompetent.

7
 Conversely, in response, Dr. Nshalla prefaced his submission by

starting with the third point of preliminary objection and very briefly argued

that the complaint by the applicant is not overtaken by events as argued by

Ms. Mcharo because the order suspending the applicant was imposed and to

date the applicant is still under suspension. In his argument, the fact that

the Advocates' Committee acted upon the impugned order, and the High

Court in Civil Appeal No. 2 of 2020 nullified and set aside the decision of the

Advocates' Committee and ordered the Registrar of the High Court to

transmit the complaint to the Advocates' Committee in the manner directed

by the impugned order, does not negate the fact that the applicant is still

under suspension. Thus, he contended that, this preliminary objection has

no merit.

In response to the fourth point of preliminary objection, Dr. Nshalla

admittedly argued that, the applicant was not a party to the matter before

the High Court which is the basis of the impugned decision, and it is on that

account that she has preferred an application for revision before the Court

as the only avenue available to her to challenge the impugned decision. He

placed reliance in the case of Jacqueline Ntuyabaliwe Mengi and

Others v. Abdiel Reginald Mengi and Others, Civil Application No.

8
332/01 of 2021 (unreported) for the proposition that, the only way for

someone who was not a party in the matter before the lower court to

challenge the decision, is by way of revision. Upon our prompting Dr. Nshalla

argued that section 22 (2) (c) of the Act does not apply in the current

circumstances since the applicant was not suspended under section 22 (2)

(a) of the Act. He therefore, insistently argued that the applicant had no way

out other than filing an application for revision, and that no remedy is

provided in respect of the action taken under section 22(b) of the Act.

On his part, in further response to the fourth ground of the preliminary

objection, Mr. Kibatala argued that, the principle of the nature of the order

test which was recited in the case of Tanzania Posts Corporation (supra)

is in favour of the applicant because the impugned order had life of its own

in the sense that it finally determined the rights of the applicant and

therefore, it was not interlocutory, and thus amenable for revision. He

therefore submitted that this preliminary objection has no merit.

In response to the first point of preliminary objection, Mr. Kibatala

argued that, it is true that parties in the impugned decision are not the same

as those in the instant application and according to him the explanation was

simple and straight forward. Illustrating, he contended that, the impugned

9
decision was twofold, the learned J.K. disposed of the matter before him by

sustaining some of the preliminary objections, striking out the petition and

went ahead to suspend the applicant under a different scheme. He further

argued that, the learned J.K. clothed himself with the powers of the first

respondent and ordered the Registrar of the High Court to transmit the

complaint to the Advocates' Committee in the manner directed in the

impugned order. Mr. Kibatala distinguished the case of Salim Amour

Diwani (supra) which according to him, the circumstances are not the same.

While the former case related to extension of time, the latter case dealt with

the issue of failure to accord the applicant the right to be heard prior to

suspension. He further relied on the case of Judge-In-Charge, High Court

at Arusha and Another v. N.I.N Munuo Ng'uni [2004] T.L.R. 44 to

bolster his argument.

In response to the second point of preliminary objection, Mr. Kibatala

was fairly brief and admittedly submitted that, truly the applicant filed a

notice of application for revision instead of notice of motion but everything

else in the application refers to application for revision. He further contended

that, even the notice of application for revision clearly indicated that it arose

from Misc. Civil Application No. 29 of 2018. In his argument, if anything, it

is a mere slip which is inconsequential as there is no any prejudice to any of

the parties. He referred us to the case of Israel Malegesi and Another v.

Tanganyika Bus Services, Civil Application No. 172/08 of 2020

(unreported) for the proposition that failure to properly write the title of the

notice of motion is a minor irregularity which does not render the application

fatal and therefore incompetent. He thus, rounded of by arguing that, in the

spirit of overriding objective principle, the anomaly is minor and therefore, it

can be glossed over. He strongly submitted that this point of preliminary

objection has no merit.

In a very brief rejoinder, Mr. Sanga argued in relation to the response

about the second point of preliminary objection that, rule 48 of the Rules

expressly states that every application will be made by way of notice of

motion and not notice of application and that the remedy in the

circumstances is amendment but not to ignore the anomaly.

In response to the reply in relation to the first point of preliminary

objection, Mr. Sanga insistently submitted that, parties are not the same in

the two matters before the Court and distinguished the case of Judge-In-

Charge, High Court at Arusha (supra) with the current application before

us in that, in the former case, the applicant filed a constitutional petition

li
while the matter before us is not a constitutional petition, and therefore,

parties have to remain the same.

In response to the reply on the third point, the learned counsel insisted

that the impugned decision was not final and to date there are issues still

pending which makes the order interlocutory, not amenable for revision.

Having carefully examined the record and dispassionately considered

the respective oral submissions of the learned trained minds in support and

opposition to the preliminary points of objection, we should now address the

contending issues and determine the preliminary objection.

Starting with the first point of preliminary objection, clearly it is

apparent on the face of the record that the then petitioner and the second

and third respondents before the High Court are not part of this application.

However, we think that, this should not detain us much for the simple reason

that, we find considerable merit in Mr. Kibatala's submission that the cited

case of Salim Amour Diwani (supra) is distinguishable because the

circumstances pertaining to the case before us are not the same as those in

Salim Amour Diwani (supra). While in the former case the applicant joined

the Attorney General who was not a party in the original proceedings as a
second respondent and without leave of the court, in the instant matter the

applicant who was not a party in the original proceedings has come armed

with an application for revision which as we earlier on stated in the case of

Jacqueline Ntuyabaliwe Mengi and Others (supra), the law allows

someone who was not a party to the matter to lodge an application for

revision to challenge that decision. Truly, the applicant has left some of the

parties in the case who would otherwise want to defend their rights, but as

rightly maintained by Mr. Sanga, the remedy which we also associate

ourselves with as the correct exposition of the law, if at all found necessary

in the circumstances of this case, is to allow an amendment and not to

declare the application incompetent and strike it out. All in all, as to the

consequences of this anomaly, we shall reserve our final determination

pending decision of the subsequent point of preliminary objection.

Next, we shall deliberate on the fourth point of preliminary objection

in which the respondent has argued that, the impugned decision is not

amenable for revision.

Our starting point will involve a reflection of the law that provides for

disciplinary powers of Judges and the High Court to deal with misconduct or

13
offences by advocates. For the sake of clarity, we wish to reproduce the

provision of section 22 of the Act which provides thus:

"22. -(1) Nothing in this Act contained shaii supersedeor interfere

with the powers vested in the ChiefJustice or any o f the Judges
of the High Court to deal with misconduct or offences by
advocates.
(2) Without prejudice to the generality o f the foregoing
subsection, notwithstanding that no inquiry may have been made
by the Committee-
(a) the ChiefJustice or the High Court shall have power, for any
reasonable cause to admonish any advocate or to suspend him
from practicing during any specified period or make an order of
removing his name from the Roll;
(b) any Judge o f the High Court shall have power to suspend
any advocate in like manner temporarily, pending a reference
to, or disallowance o fsuch suspension by, the High Court;
(c) any advocate aggrieved by any decision or order o f the Chief
Justice or a judge o f the High Court made in pursuance to
paragraph (a), may, within thirty days o f such decision or order
appeal-
(i) in the case o f a decision or order by a judge o f the High Court,
to the Advocates'Committee; and
(ii) in the case o f a decision or order o f the ChiefJustice, to the
Court o f Appeal:

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 Provided that where the decision or order appealed
against was made by a judge o f the High Court nominated by
the ChiefJustice to be a member o f the Advocates'Committee
under section 4(1)(a) o f this Act, suchjudge shaii not sit at the
hearing o f the appeai by the Committee, and in such case, the
Chief Justice may nominate another judge o f the High Court
as provided under subsection (3) o f section 4 o f this Act; and
save further that in an appeai to the Court o f Appeai against a
decision or order o f the ChiefJustice the latter shaii not sit to
hear the appeai. ''[Emphasis added].

The issue that emerges from the above provision of the law is whether

the impugned decision was amenable for revision. Before we answer that

issue, we hasten to state at this juncture that, the provisions of section 22

of the Act, provides for a scheme under which disciplinary powers of Judges

and the High Court can be exercised against an advocate who behaves in a

manner considered to be professional misconduct or offences by advocates

apart from inquiry by the Advocates' Committee in terms of section 13 of the

Act which is a separate scheme.

Counsel are not at issue in as far as the scheme of section 22 of the

Act is concerned, the real pith and marrow in the instant matter is whether

the applicant having being suspended under section 22 (2) (b) of the Act

15
was justified to come before us by way of revision. While Ms. Mcharo argued

that in terms of section 5 (2) (d) of the AJA the impugned decision is not

amenable for revision because it was merely a preliminary or interlocutory

one which did not finally determine the suit, Mr. Kibatala on his part

contended that, according to the principle of the nature of the order test

which was stated in the case of Junaco (T) Limited and Justin Lambert

v. Harei Mallac Tanzania Limited, Civil Application No. 473/16 of 2016

(unreported) and recited in the case of Tanzania Posts Corporation

(supra), the impugned order had life of its own and therefore it finally

determined the rights of the applicant and thus it is amenable for revision

because it was not interlocutory.

It is clear to us that, from the express wording of section 22 of the Act,

section 22 (2) (b) is the most appropriate provision to address the issue in

contention. In our considered and respectful opinion, the above provision is

self-sufficient in that, it caters for both powers of the Judge of the High Court

to suspend any advocate temporarily in like manner pending reference to

the High Court and also powers of the High Court to disallow suspension of

any advocate who has been suspended upon an application by that

advocate. Mr. Kibatala urged us to find that the applicant rightly resorted to

16
come before us by way of revision. Admittedly, the argument is attractive

but, to us, we find it inexpedient in the circumstances.

With due respect, we are of the finding and holding that, the applicant,

having been suspended under section 22 (2) (b) of the Act, had an

opportunity to move the High Court by employing the same provision of

section 22 (2) (b) of the Act to seek disallowance of the order which

suspended her. Trying as hard as we can to follow Mr. Kibatala's reasoning,

we fail to understand why didn't the applicant resort to this avenue and

instead opted to lodge an application for revision which, in our view, it was

a misconception. To think otherwise, that, in our view, cannot have been the

intention of the Parliament when drafting section 22 of the Act.

It is not insignificant to state that, this situation is not novel. We wish

to take inspiration in the case of Sabas William Kiwango v. The Attorney

General, Misc. Civil Application No. 17 of 2011, High Court of Tanzania

(Main Registry) at Dar es Salaam (unreported) in which, while deliberating

on the preliminary objection in an application where the applicant sought to

move the High Court to lift his suspension, that court decidedly held that

section 22 (2) (b) of the Act is applicable to both cases of suspension of an

advocate and also disallowance of any such suspension.

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 We venture to say that, for the foregoing reasons, that concludes our

deliberations on the fourth preliminary point of objection which we uphold.

As the fourth preliminary point of objection alone suffices to dispose

of the application, it will be hypothetical and a mere academic exercise to

waste time deliberating on the rest of the preliminary points of objection.

Consequently, we find and hold that, the instant application is incompetent

and therefore, we strike it out with costs.

DATED at DAR ES SALAAM this 19th day of June, 2023

A. G. MWARIJA
JUSTICE OF APPEAL

M. A. KWARIKO
JUSTICE OF APPEAL

P. F. KIHWELO
JUSTICE OF APPEAL

The Ruling delivered this 27th day of June, 2023 in the presence of the

Mr. Peter Kibatala, learned counsel for the Applicant and Ms. Frida Mollel,

State Attorney for the Respondents is hereby certified as a true copy of the