Advocates’ strike snub saves some 25,000 cases

FAUSTINE KAPAMA

ABOUT 25,000 cases would have been affected if advocates in the country were to respond to the call by the Tanganyika Law Society (TLS) to boycott all proceedings for two days, in protest over the alleged bombing of IMMMA Advocates offices in Dar es Salaam.

However, almost all advocates defied the call and proceeded with their engagements, mostly to fulfil obligations to their clients. It has been established that there are currently over 6,328 practising advocates in Tanzania, a ‘Daily News’ survey in the city yesterday showed that each advocate could attend at least seven cases a day, of a civil and criminal nature.

Of such cases, two cases could be for hearing and the rest for mention or be set for necessary orders. Seasoned advocate Alex Mgongolwa hinted that he handles not less than five cases a day in different courts, notably at the High Court and lower courts.

The advocate emphasised that if he attended seven cases, three would be of a criminal nature that would be set for hearing and two of a civil nature, similarly set for hearing before a magistrate or judge.

Advocates Hudson Ndusyepo and Alphonse Katemi voiced virtually similar sentiments, pointing out that they attend at least five cases a day, two of then at a hearing stage. Legal practitioners say that non-appearance at a trial by an advocate served with court summons could have adverse consequences to the case concerned.

If the case is of criminal nature and has been set for hearing, the court could grant an adjournment to allow theaccused to be represented, they explained. They pointed out, however, that a problem arose in respect of a civil nature case as the judge or magistrate could dismiss it for either want of prosecution or non- appearance of the party if the case had been set for hearing.

According to Order IX Rule 3 of the Civil Procedure Code (CPC), the court may dismiss the suit for non-appearance of the parties. The provision reads: “Where neither party appears when the suit is called on for hearing, the court may make an order that the suit be dismissed.”

In terms of Sub-Rule 8 of CPC, where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed.

Whereas under Sub-Rule 9 of the same CPC states in part that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.

There are an estimated 110 district courts and 26 resident mag istrates courts countrywide, where advocates attend judicial sessions. It is estimated that in each court chamber, a magistrate could preside over at least 10 cases of civil and criminal nature a day.

Of such cases, four cases could be for hearing and the rest set for mention. In protesting the strike called by TLS governing council, most members of the bar pointed to the severe injustice that could be occasioned to their clients if the cases were dismissed over non-appearance of advocates.

Mr Katemi was quoted as saying, “The consequences that will result after the strike will be personal. We have been fully paid by our clients and we have full instructions to represent them in court. Who do you think is going to suffer at the end of the day? What are we intending to achieve.”

Another advocate, Oscar Msechu, had this to say, “We should be reminded that we have fiduciary relationship with our clients who have fully instructed us to represent them. What will happen if a case is dismissed over nonappearance of an advocate who is fully paid? I think our clients stand to suffer more.”