THE Court of Appeal has rejected the application lodged by Advocate Fatma Karume to challenge decision of the High Court, which temporarily suspended her from practicing for allegedly issuing unprofessional, disrespectful and abusive language in written submissions filed in court.
Justices Augustine Mwarija, Mwanaisha Kwariko and Paul Kihwelo ruled against Ms Karume, the applicant, after upholding one ground of objection presented by the Attorney General, the respondent, that the application in question was not amenable for revision, hence incompetent.
"(...) we find and hold that the instant application is incompetent and therefore, we strike it out with costs," they ruled. The High Court suspended Ms Karume temporarily under 22 (2) (b) of Advocates Act pending the reference of the professional misconduct matter to the Advocate's Disciplinary Committee.
During hearing of the preliminary point of objection, the parties had locked horns on the competence of the application and whether the impugned decision which was given by the then High Court Principal Judge, Eliezer Feleshi was amenable for revision.
The counsel from the Solicitor General, for the respondents, had forcefully argued that in terms of section 5 (2) (d) of the Appellate Jurisdiction Act, the impugned decision was not amenable for revision because it was merely a preliminary or interlocutory one which did not finally determine the suit.
On the other hand, the advocate for the applicant contended that 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.
In their ruling delivered in Dar es Salaam recently, the justices of the appeal court pointed out that the provision of section 22 (2) (b) of the Act is self-sufficient.
They said that such provision caters for both powers of the High Court Judge 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.
"(The applicant's counsel) urged us to find that the applicant rightly resorted to come before us by way of revision. Admittedly, the argument is attractive but, to us, we find it inexpedient in the circumstances," the justices said.
They found 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.
"We fail to understand why the applicant did not 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," they said.
The justices took inspiration in the case of Sabas William Kiwango vs. The Attorney General, Misc. Civil Application No. 17 of 2011, High Court of Tanzania (Main Registry) at Dar es Salaam (unreported).
In that case, while deliberating on an 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.
The applicant was up until September 20, 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.
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In course of her duty, the applicant was duly instructed to represent one Ado Shaibu in a Constitutional Petition against the Attorney General and two others. As the respondents raised preliminary points of objection, the matter was set for hearing before the Principal Judge.
The Principal Judge ordered the matter to be disposed of by way of written submissions which the parties dutifully complied with. The Attorney General, apart from re-joining the submission by the applicant, raised a very serious complaint against the applicant.
In her reply written submission, the applicant allegedly 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.
