Q&A – 11 April 2011
Claim after limitation period
In 1999 I entered into a contract with a friend to pay Tsh 50M that arose out of a transaction. However due to my financial constrains, I could not pay as promised. Few months ago I received a 14 day demand notice from my friend’s lawyers claiming the amount and other costs. I have replied to the demand notice and acknowledged the debt but the creditor is anxious to go to Court immediately after the said 14 days without further notice to me. Please advice.
HP, Singida
There is no doubt that your relationship with your friend is regulated by your written contract of 1999. Under the law, the time limit for proceedings under the written contract is 6 years.
In your case there are two distinct dates- the date of your contract in 1999 and the date of your acknowledgement of the 1999 debt, which you said is a few months ago. By virtue of the law of limitation Act, no acknowledgement shall be operative, if it is made after the expiration of the period of limitation prescribed for the proceedings in respect of the right of action to which the acknowledgement relates. Under the law of limitation, your friend cannot claim against you six years after your default in 1999. Under special circumstances the Minister in charge of justice may extend the period to a further 3 years, totaling 9 years, which would take the date to 2008. After 2008, your friend would not be able to claim against you, even if you acknowledge the debt afresh. Whilst you might have a moral obligation to pay, legally you have a good defence in case you decide not to. We however recommend you see your attorney for further insight and guidance.
Substitution of charge during trial
Two years ago my uncle was charged with unlawful wounding. He pleaded not guilty and the prosecution side brought three witnesses. Surprisingly, when the third prosecution witness appeared, the prosecution side substituted a charge to that of causing grievously bodily harm and after defence hearing he was convicted and sentenced to three years in jail. Was it fair to substitute a charge?
JL, Moshi
Substitution of a charge is governed by section 234 of the Criminal Procedure Act, in that the prosecution side can amend and/or substitute a charge at any stage of the trial for various reasons like defectiveness of the charge in its substance or form. However, after substitution, the Court shall inform the accused the right to recall witnesses to give evidence afresh or to be further cross-examined by the accused. All these procedures should be indicated in the Court records. Any omission of these procedures is treated as a serious error capable in law of vitiating the decision arrived at the end of trial. Since your facts are silent as to whether or not all these procedures were complied with, we advice you to consult your Attorneys with Court records for further advice.
Whether or not it is ‘fair’ to substitute a charge is subjective. In the eyes of the accused it might look unfair; in the eyes of the prosecution it might be fair. All in all the law is clear in that the prosecution can substitute a charge.
Murder of Jessica Lal
I am a second year law student at a university in Dar es Salaam. I watched a movie and have read about the case of Jessica Lal, an Indian hostess who was killed by a politician’s son in a night club in India. I learnt with interest how the High Court there called for the records of the trial Court and retried the murder case. Can the High Court in Tanzania do the same?
GP, Dar
The case you have referred to is a landmark Indian murder case where the son of a well know politician shot dead a bar tender, Jessica Lal, way back in 1999, at a party where there was dim lighting and loud music. From the brief facts that we have, the accused was set free by the trial Court because, amongst other reasons, the prosecution did not prove beyond a reasonable doubt that the accused was present at the scene of the crime.
After acquittal the case was picked up by a well known media outlet which started to investigate the murder. The investigation revealed a clear miscarriage of justice and raised a public outcry across India which resulted in the High Court, on its own accord (sua motu), calling for the records of the trial Court.
The High Court reversed the acquittal by the trial Court and sentenced the accused to life imprisonment. The accused then appealed to the Supreme Court of India equivalent to the Court of Appeal of Tanzania. The Supreme Court upheld both the conviction and sentence of life imprisonment awarded to the son of the politician stating that the prosecution had proved beyond reasonable doubt the presence of the accused at the site of the offence. The Supreme Court added that the presence of accused was proved by ocular evidence of the prosecution witnesses. The Supreme Court also pointed out that the conduct of the accused after the crime proved his guilt and sentenced some of the accused’s friends to various terms after finding them guilty of destruction of evidence and obstruction of justice.
Whilst the Court criticized the media for its reporting, it held that this did not cause any prejudice to the accused.
Coming back to your question, according to the Criminal Procedure Act of Tanzania, the High Court of Tanzania has the same powers as those of the High Court in India. The High Court need not be necessarily moved by someone- it can move itself and address issues.
The Jessica Lal case is a matter which proves the role a responsible media can play in administration of justice and reminds everyone that no one is above the law. It must be pointed out that there is no time limit when it comes to criminal law matters and an acquittal in one Court, does not mean that a case cannot be reopened in another or tried again, of course depending on the new facts.