Asante Mkuu
Pasco kwa majibu yako. Lakini, bado natamani nikufahamishe.Kuwa Wakili ni jambo moja na kuwa Practising Advocate ni jambo lingine. Uwakili huanzia siku ambayo Mwanasheria hukubalika na kusajiliwa kuwa Wakili na Jaji Mkuu wa Tanzania.
Wapo Mawakili ambao hawa-practice. Ku-practice ni kutetea Serikali au watu binafsi Mahakamani au kwenye Mamlaka nyinginezo za kisheria zisikilizazo mashauri. Kutumia tu
muhuri au kutoa ushauri si ku-practice.Ndio maana muhuri wa Wakili una vyeo vitatu: Advocate, Notary Public na Commisioner for Oaths. Cha kwanza ndicho cha ku-practice.
Kwa kuongezea,kama nilivyosema hapo juu,wapo Mawakili ambao hawa-practice.Hawa ni pamoja na Majaji,Mahakimu na hata Mawakili wa kawaida ambao kwasasa ni wanasiasa na kadhalika. Hao hawana Certificate of Practice inayotolewa kila mwaka na Tanganyika Law Society ingawa wanabaki kuwa Mawakili.
Uwakili ni jambo la kwanza.Ku-practise ni jambo la pili.Mambo tofauti. Kama una utayari,tuendelee kueleweshana.
Naona mnabishana tu na Pasco bila kurejea sheria .
Kisheria na kwa mujibu wa Sheria ya Mawakili ku-paractice kama Advocate /Wakili kwa kutetea kesi Mahakamani kuna hitaji cheti cah kufanya hivyo (
Practising certificate). Unaposajiliwa na Jaji Mkuu kuwa wakili, Chama cha Mawakili kinaweza kukuandikisha na kukutambua kama (Practising Advocate au Non- Practising Advocate) Hawa "Non- practsing advocates" ni wale wasio na Cheti cha "Practise".
Hata hivyo, unaweza hata kama sio "practising advocate" kufanya "practise" katika maeneo mengine ya kiuwakili. Kwa mfabo kupitia sheria za Usajili wa Hati, Sheria ya Wasimamizi wa Viapo, Mawakili wote iwe wana cheti cha ku-practise au lah wanatabulika "practicing Notaries" au wathibitshaji wa nyaraka.
kutoa tu maoni au kuandaa nyaraka za kisheria hakukuwezeshi kujiita au kuitwa Wakili mpaka uwe umesajiliwa kamwa wakili. Hata kama umemaliza digrii ya sheria utaendelea kuwa Mwanasheria tu (A Lawyer).
Sheria ya Tafsiri (Interpretation Act Cap. 1 R.E 2002)
"
advocate" means a person entitled to practise as an advocate in the High Court or courts subordinate under the provisions of the law for the time being applicable to advocates;
TUSOME VIFUNGU VIFUATAVYO VYA SHERIA KWA MWONGOZO.>
Sheria ya Mawakili (Advocates Act Cap. 341)
"
advocate" means any person whose name is duly entered as an advocate upon the Roll;
"practising certificate" means a certificate issued by the Registrar to an advocate, authorising him to practise as such within Tanzania, pursuant to the provisions of Part VI;
Section 3 : Certain officers exempt from provisions of the Act
(1) Every officer to whom this section applies shall, in connection with the duties of his office, be entitled to practise as an advocate in the High Court or in any court subordinate thereto constituted under the Magistrates' Courts Act * and to perform any of the functions which, in England, may be performed by a member of the Bar as such or by a solicitor of the Supreme Court of Judicature as such, and provided, be subject to the provisions of this Act.
(2) The officers to whom this section applies are
(a) the Attorney-General, Parliamentary Draftsmen and State Attorneys, and any person duly qualified holding office in the Attorney-General's Chambers;
(b) the legal secretary Income Tax Department;
(c) any person duly qualified holding office in any municipality established under the Local Government (Urban Authorities) Act * or any township authority established under the Local Government (District Authorities) Act *;
(d) the Registrar-General, Administrator-General, Public Trustee, Official Receiver, Commissioner for Lands and any person duly qualified holding office in the office of the Registrar-General, or of the Administrator-General, or of the Official Receiver or the Land Officer;
(e) any person duly qualified holding office in such parastatal organisation as the Minister may, by order published in the Gazette, designate for the purposes of this section.
(3) For the purposes of this section "person duly qualified" means a person who is the holder of one of the professional qualifications set out in paragraph (a) of subsection (1) of section 8.
Admission and enrolment of advocates Acts Nos. 16 of 1963 s. 3; 31 of 1997 Sch.; G.N. No. 395 of 1963
(1) A person may apply to the Chief Justice to be admitted as an advocate
(a) if he holds one of the following professional qualifications, that is to say
(i) if he is the holder of a degree in law granted after examination by the University of East Africa or the University of Dar es Salaam by such other university or other institution as may be recognised by the Council for the purposes of this section;
(ii) if he is a legal practitioner (by whatever name called) and thereby has a right of audience before any court having unlimited jurisdiction in civil and criminal matters in any Commonwealth country or in any other country designated by the Minister for the purposes of this section;
(iii) if he is a Solicitor of the Supreme Court in England, Northern Ireland or the Republic of Ireland, a Writer to the Signet, a Solicitor in the Supreme Court of Scotland, or a person admitted or deemed to have been admitted as a solicitor under the Solicitors (Scotland) Act, 1933, of the United Kingdom, or if he is the holder of any similar qualification which is accepted by the Council as a professional qualification for the purposes of this subparagraph; and
(b) subject to the provisions of subsection (2), if either
(i) he has complied with such requirements (whether relating to instruction or examination or otherwise) as to the acquisition of professional experience as may be specified in regulations made hereunder by the Council; or
(ii) he has been in continuous practice as an advocate in Kenya, Uganda or Zanzibar during the five years immediately preceding his application.
P
RACTISING CERTIFICATES
Section 34. Registrar to issue practising certificates
It shall be the duty of the Registrar to issue in accordance with the provisions of this Part certificates authorising the advocates named therein to practise as advocates.
S
ection 39. Qualifications for practising as advocate
(1) Subject to the provisions of section 3 n
o 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".
40. Rights of practising advocate C.A. Act No. 2 of 1962 4th Sch.
Every advocate who has in force a practising certificate may practise as an advocate in the High Court or in any court subordinate thereto constituted under the Magistrates' Courts Act * and may perform any of the functions which, in England, may be performed by a member of the Bar as such or by solicitor of the Supreme Court of Judicature as such.
[PCh341s41]41. Unqualified person not to act as advocate
(1) No unqualified person shall act as an advocate, or agent for suitors or, as such, issue out any summons or other process, or commence, carry on or defend any action, suit or other proceeding in the name of any other person or in his own name, in any court of civil or criminal jurisdiction, or act as an advocate in any cause or matter, civil or criminal.
(2) Any person who contravenes the provisions of this section shall be guilty of an offence against this Act and of contempt of the court in which the action, suit, cause, matter or proceeding in relation to which he so acts is brought or taken and may be punished accordingly, and shall be incapable of maintaining any action for any costs in respect of anything done by him in the course of so acting, and shall, in addition to any other penalty or forfeiture and any disability to which he may be subject, be liable on conviction to a fine not exceeding two thousand shillings.
Section 42. Penalty for pretending to be an advocate Act
Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description, or uses any title which corresponds to the title of a legal practitioner in any Commonwealth country, implying that he is qualified to acts as an advocate, shall be liable on conviction to a fine not exceeding one million shillings or twelve months imprisonment or both.
Section 43. Penalty for unqualified persons preparing certain instruments Act
(1) Any unqualified person who, unless he proves that the act was not done for, or in expectation of, any fee, gain or reward, either directly or indirectly, draws or prepares any instrument
(a) relating to movable or immovable property or any legal proceeding;
(b) for or in relation to the formation of any limited liability company whether private or public;
(c) for or in relation to the making of a deed of partnership or the dissolution of a partnership,
shall be liable on conviction to a fine not exceeding one million shillings or twelve months imprisonment or both and shall be incapable of maintaining any action for any costs in respect of the drawing or preparation of such instrument or any matter connected therewith.
(2) This section shall not extend to
(a) any public officer drawing or preparing instruments in the course of his duty; or
(b) any person employed merely to engross any instrument, application or proceeding.
(3) For the purposes of this section and section 44 the expression "instrument" does not include
(a) a will or other testamentary instrument;
(b) an agreement under hand only which does not and is not intended to operate as a deed under the Land Act *;
(c) a letter of power of attorney; or
(d) a transfer of stock or shares containing no trust or limitation thereof.
section 44. Instruments to be endorsed with name and address of drawer
(1) Every person who draws or prepares any instrument in contravention of section 43 shall endorse or cause to be endorsed thereon his name and address; and any such person omitting so to do or falsely endorsing or causing to be endorsed any of the said requirements shall be liable on conviction to a fine not exceeding two hundred shillings.
(2) It shall not be lawful for any registering authority to accept or recognise any instrument unless it purports to bear the name of the person who prepared it endorsed thereon.
section 66. Advocates to be officers of High Court
Any person duly admitted as an advocate shall be an officer of the High Court and shall be subject to the jurisdiction thereof.
Sheria ya Chama cha Mawakili (THE TANGANYIKA LAW SOCIETY ACT, Cap 307)
"
practising certificate" means a practising certificate issued under the provisions of section 35 of the Advocates Act *
6. Membership
The membership of the Society shall consist of the following
(a) all advocates who are members of the Society by reason of the provisions of section 7;
(b) all persons admitted to membership of the Society under section 8;
(c) all persons elected as honorary members of the Society under section 9.
S
ection 7. Practising advocate to be member of society
(1) Every advocate who h
as in force a practising certificate shall without election, admission or appointment, become a member of the Society from the date on which the practising certificate is issued to him and be subject to any provision of the law for the time being affecting that member:
Provided that every advocate to whom a practising certificate is issued before the first day of February of each year shall, if he was an advocate on the first day of January of that year, be deemed to have been a member of the Society as from the first day of January of that year.
(2) Every advocate who becomes a member of the Society under subsection (1) shall, subject to the provisions of subsection (3), remain a member until the end of the current year.
(3) When an advocate who is a member of the Society by reason of the provisions of subsection (1) has his name, whether at his own request or otherwise, removed from the Roll, he shall immediately cease to be a member of the Society.
8. Qualifications for membership
(1) Any of the following persons who applies for membership of the Society in the prescribed manner shall be admitted as a member of the Society, that is to say
(a) the Attorney-General, Parliamentary Draftsman and State Attorneys, for the time being resident in Tanzania, and any person duly qualified holding office in the Attorney-General's Department;
(b) any person duly qualified holding office in a local government authority;
(c) the Registrar-General, Administrator-General, Public Trustee, Official Receiver, Land Officer and any person duly qualified holding office in the department of the Registrar-General, Administrator-General, Official Receiver or the Land Office;
(d) [Omitted under Cap. 4 s. 7.]
(e) any other legally qualified person, for the time being resident in the Tanzania, as may from time to time be determined by special resolution:
THE REGISTRATION OF DOCUMENTS ACT (Cap.117 R.E)
NOTICES
THE REGISTRATION OF DOCUMENTS (AUTHORISED PERSONS) NOTICE
made under Section 12 of the Act:
2. The following persons are hereby authorised to attest the execution of documents of which registration is compulsory under the provisions of the Registration of Documents Act * (a) where the documents is executed within Mainland Tanzania, Kenya, Uganda or Zanzibar
A Judge of the High Court,
A Magistrate,
A Justice of the Peace,
An Advocate,
The Registrar of Documents,
An Assistant Registrar of Documents,
The Registrar of the High Court,
A Deputy Registrar of the High Court,
The Commissioner for Lands,
An Assistant Commissioner for Lands,
The Administrator-General,
A Senior Assistant Administrator-General,
An Assistant Administrator-General,
An Administrative Officer,
An Internal Revenue Officer,
A Senior Land Officer,
A Land Officer;
any person employed by the Government of the United Republic and who, under the provisions of section 3 of the Advocates Ordinance, is entitled to practise as an Advocate of the High Court;
any person employed by the Tanzania Legal Corporation established by the Tanzania Legal Corporation (Establishment) Order, 1970 and who, under the provisions of section 3 of the Advocates Ordinance, is entitled to practise as an Advocate of the High Court;
THE NOTARIES PUBLIC AND COMMISSIONERS FOR OATHS ACT (Cap 12 R.E, 2002)
Section 2: "
practise as a commissioner for oaths" means perform, mutatis mutandis, the functions and duties commonly performed by a commissioner for oaths in England;
Section 3. Persons entitled to practise as notaries public and commissioners for oaths
. (1) Any of the following persons shall, except as provided in subsection (2), be entitled to practise as a notary public and Commissioner for Oaths in Mainland Tanzania in accordance with the provisions of this Act and to levy fees in accordance with the First Schedule
(a)
an advocate; and
(b) a person entitled to practise as a notary public in England, Scotland, Northern Ireland or the Republic of Ireland.
(2) The following persons shall not be entitled to practise as notaries public or commissioners for oaths
(a) any advocate who is suspended from practice until the period of suspension ends;
(b) any person whose name is removed from the roll of advocates otherwise than at his own request, until his name is restored to the roll of advocates;
(c) any person whose name is removed from the roll of notaries public and commissioners for oaths or who is suspended from practice as a notary public or commissioners for oaths in any reciprocating commonwealth country for professional misconduct, until his name is restored to the roll.
(3) In this section the expression "advocate" has the same meaning as in the Advocates Act *, and the expression "roll of advocates" means the roll of advocates kept by the Registrar of the High Court in accordance with the provisions of Part II of that Act.
4. Enrolment and granting of certificates Ord. No. 38 of 1955 s. 4
(1) Any person mentioned in section 3 who is entitled to practise as a notary public and commissioner for oaths shall, on application to the Registrar of the High Court and payment to him of the prescribed fee, and upon signing a roll to be kept by the Registrar, be granted a certificate in the form in the Second Schedule, which certificate shall, subject to the provisions of section 5, entitle him to practise as a Notary Public and Commissioner for Oaths in Mainland Tanzania so long as it is in force.
(2) Every certificate shall cease to be in force after the 31st December next following the date of issue, unless it is renewed.
(3) Every certificate shall be renewed, by endorsement, upon the application of the holder and payment of the prescribed fee.
(4) The granting of a certificate under this section and its renewal shall be recorded in the roll.
(5) When a certificate granted under this section is lost, destroyed or mutilated it shall be replaced by a fresh certificate upon the application of the person entitled to it and payment of the prescribed fee.
[PCh12s5]5. Suspension or removal from roll Ord. No. 38 of 1955 s. 5; Act No. 9 of 1996 Sch.
(1) A notary public and commissioner for Oaths may be suspended from practising or his name may be removed from the roll by order of a judge of the High Court if he is guilty of unprofessional conduct or if he otherwise becomes a person who, under subsection (2) of section 3, would not be entitled to practise as a notary public or commissioner for oaths:
Provided that no such order shall be made until the notary public and commissioner for Oaths has had opportunity of showing cause against such order.
6. Penalty for unlawfully practising Ord. No. 38 of 1955 s. 6
(1) Subject to the provisions of section 10, any person who holds himself out to be a notary public or commissioner for oaths or receives any fee or reward as a notary public or commissioner for oaths, unless he holds a valid certificate granted under this Act, shall be guilty of an offence and liable to a fine not exceeding one thousand shillings and for a second or any subsequent offence to imprisonment for a period not exceeding six months or to a fine not exceeding two thousand shillings or to both.
(2) Nothing in this section shall be construed as exempting any person from any prosecution under the provision of any other law to which he would otherwise be liable:
Provided that no person shall be punished twice for the same offence.
[PCh12s7]7. Bar on commissioner for oaths practising when interested
No commissioner for oaths shall exercise any of his powers as a commissioner for oaths in any proceedings or matter in which he is advocate to any of the parties or in which he is interested.
[PCh12s8]8. Jurat to state when oath is taken
Every notary public and commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat of attestation at what place and on what date the oath or affidavit is taken or made.