Q&A – 12 August 2013

Advocate not performing

I have been involved in an issue for the past twelve years only to realize now that my advocate made serious procedural blunders that I believe were intentionally done so that my mater is compromised. I reported this to the Advocate Committee but the matter has not been addressed the way it should have been. What other options do I have? Surely Tanzanian law should be able to protect clients interests and take advocates to task. On a different note, can any advocate on the roll practice in Tanzania. Kindly guide.
UU, Dar

Apart from reporting the matter to the Advocates Committee established under the Advocates Act, Judges and the High Court have powers to discipline advocates. The acts states that;

(1) Nothing in this Act contained shall supersede, or interfere with the powers vested in the Chief Justice or any of the Judges of the High Court to deal with misconduct or offences by advocates.
(2) Without prejudice to the generality of the foregoing subsection, notwithstanding that no inquiry may have been made by the Committee–
(a) the Chief Justice or the High Court shall have power, for any reasonable cause to admonish any advocate or to suspend him from practising during any specified period or make an order of removing his name from the Roll;
(b) any Judge of the High Court shall have power to suspend any advocate in like manner temporarily, pending a reference to, or disallowance of such suspension by, the High Court;
(c) any advocate aggrieved by any decision or order of the Chief Justice or a judge of the High Court made in pursuance to paragraph (a), may, within thirty days of such decision or order appeal–
(i) in the case of a decision or order by a judge of the High Court, to the Advocates’ Committee; and
(ii) in the case of a decision or order of the Chief Justice, to the Court of Appeal:

Provided that where the decision or order appealed against was made by a judge of the High Court nominated by the Chief Justice to be a member of the Advocates’ Committee under section 4(1)(a) of this Act, such judge shall not sit at the hearing of the appeal by the Committee, and in such case, the Chief Justice may nominate another judge of the High Court as provided under subsection (3) of section 4 of this Act; and save further that in an appeal to the Court of Appeal against a decision or order of the Chief Justice the latter shall not sit to hear the appeal.

From the above, if you believe that the matter has not been adequately addressed by the Advocates Committee, as a last resort you may write to the Chief Justice who does have power to discipline advocates.

To answer your second question, we take you to section 35 of the Advocates Act which clearly states that (1) Subject to the provisions of section 3 no person shall be qualified to act as an advocate unless–
(a) his name is on the Roll;
(b) he has in force a practising certificate; and
(c) he has a valid business licence,
and a person who is not so qualified is in this Part referred to as an “unqualified person”.

Hence merely being on the roll does not entitle one to act as an advocate. Each and every advocate must have a practicing certificate and a valid business licence without which that advocate cannot practice.

Stamp duty on contract

TRA are forcing me to pay stamp duty on an agreement I entered into for buying a PA system. They claim it is 1% of the value of the system which amounts to a very large amount. My accountant says it is not payable. Kindly guide.
EL, Dar

Your accountant is correct in that stamp duty is not payable at 1% for the purchase of the PA system. The Stamp Duty act is clear in that every instrument specified in the Schedule to this Act and which– (a) is executed in Tanzania Mainland; or (b) if executed outside Tanzania Mainland, relates to any property in Tanzania Mainland or to any matter or thing to be performed or done in Mainland Tanzania, shall be chargeable with duty of the amount specified or calculated in the manner specified in that Schedule in relation to such instrument. Your agreement does not fall into the schedule where 1% would apply and hence no stamp duty is payable. You should refer this section to the TRA and consult your tax lawyer for further guidance.

VAT on commercial court fees

My attorney filed a case worth millions of dollars and the fee was assessed as per the attorneys invoice at 2%. However in the invoice there is a component of Value Added Tax. Does VAT apply on fees paid into Court?
YU, Dar

No VAT should not apply. Also the 2% on filing at the Commercial Court is capped at Tsh 10 million and since in your case you claim is in the millions of dollars, the maximum fee you will have to pay is Tsh 10 million and not 2% of the amount in dispute. We recommend you relook at the calculations as you will be overpaying according to the invoice. You can also demand from your attorney a receipt of the official fees he or she paid into Court and that will likely give you a correct assessment.