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Q&A – 1 January 2018

Name used as a director

A friend of mine wants me to act as a director in a company and says he will do everything for me, and is merely using my name to comply with the law. He has given me a letter stating that I shall never be liable for anything that the company will do, notwithstanding I am a director. This seems like a good arrangement as I will get paid for the usage of my name. Should I proceed?
PP, Moshi

You seem to be a rubberstamp director and hence do not recommend that you enter into this arrangement. You can be liable in a number of ways and a mere letter cannot absolve you of liability. You should not agree for such name usage unless you intend to act as a director as defined under the Companies Act. Section 185 of the Companies Act addresses this on point and states that a director owes the company a duty to exercise the care, skill and diligence which would be exercised in the same circumstances by a reasonable person having both – (a) the knowledge and experience that may reasonably be expected of a person in the same position as the director, and (b) any special knowledge and experience which the director has.

New evidence at Court of Appeal

I wish to introduce new evidence that has just come to light in a matter that is now on appeal. Can the Court of Appeal admit such evidence as it is critical to the dispensation of justice?
II, Dar

Whilst the Court of Appeal would very sparingly allow this, it is possible for the Court of Appeal to allow introduction of new evidence on an appeal. Rule 36 of the Tanzania Court of Appeal Rules states that (1) on any appeal from a decision of the High Court or Tribunal acting in the exercise of its original jurisdiction, the Court may- (a) re-appraise the evidence and draw inferences of fact; and (b) in its discretion, for sufficient reason, take additional evidence or direct that additional evidence be taken by the trial court or by a commissioner. (2) When additional evidence is taken by the Court, it may be oral or by affidavit and the Court may allow the cross examination of any deponent. (3) When additional evidence is taken by the trial court, it shall certify such evidence to the Court, with a statement of its own opinion on the credibility of the witness or witnesses giving the additional evidence, when evidence is taken by a commissioner, he shall certify the evidence to the Court without any statement of his own opinion on the credibility of the witness or witnesses.

Husband staying elsewhere

My husband is staying elsewhere and I want to get a Court order to force him to stay at home. How should I go about this?
UT, Dodoma

We are unsure what you mean by he is staying elsewhere. Is this a separation or not? We believe he does not seem to want to continue cohabiting with you. If that is the case, then unfortunately no proceeding may be brought to compel a husband to live with his wife. Hence you will not be able to get any order to force him to return. You can try other means of convincing him, perhaps by involving some elders, but the Court will not be able to intervene.

Arbitration too expensive

I entered into a lease which is now in dispute and I have rushed to Court to sue my landlord which proceedings are still pending in Court. To my surprise the lease has an arbitration clause but I seek to go to Court as it is cheaper. I agreed to arbitration thinking it would be cheaper and faster, but the quotation I have received for arbitration is three times higher than going to Court. How can you help me?
HH, Dar

There is very little we can do to ‘help’. You agreed to arbitration and unless the other party agrees that they are ready to litigate in Court, your Court application will unlikely survive. Reasons like you thought arbitration was cheaper than going to Court will not hold in a Court of law, which will direct you to arbitration. Arbitration is an alternate dispute resolution mechanism and binding on the parties, and Tanzanian Courts strictly enforce such clauses.

Without prejudice on lease

On a lease that I am signing, the top reads without prejudice. I find this quite awkward. What guidance can you give me?
FD, Mtwara

Just as you do, we also find this awkward and inappropriate, especially if you are entering into a binding lease agreement. When used in a document or letter, without prejudice means that what follows (a) cannot be used as evidence in a court case, (b) cannot be taken as the signatory’s last word on the subject matter, and (c) cannot be used as a precedent.

Contents of such documents normally cannot be disclosed to the courts but, when a party proposes to settle a dispute out-of-court, it is the genuineness of the effort that determines whether the proposal can disclosed or not, and not whether the words without prejudice were used. Other synonyms of without prejudice are without abandonment of a claim, privilege, or right, and without implying an admission of liability.

The insertion of without prejudice in the lease means that it is not binding and cannot be used in Court. This is exactly opposite of what is trying to be achieved. We recommend that the without prejudice be removed, or if your landlord is obsessed with the term, then it be changed to with prejudice.

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