Q&A – 13 Setember 2010
Court Broker withholding sale proceeds
Two years ago I sued a person for breach of a commercial agreement. The judgment debtor’s property was attached and sold. The court broker who executed the decree gave me 1/3 of the sale proceeds and retained the rest. I feel that was improper- he merely said that this was the amount I was entitled to. Is this legal?
HM, Mwanza
We do not see any justification for such action we are not aware of a law that allows such behavior by the Court broker. As a matter of law, all the fees, charges and allowances payable to the court broker and /or executing officers are supposed to be filed in Court and it is not for the them to decide what to retain.
The said Court broker is supposed to file his bill of costs with the Court and the latter shall determine the amount payable after hearing the parties within 21 days. The fees, charges and allowances charged include the cost of advertising, taking inventories, catalogues and all charges for safeguarding the property attached. In the premises the court broker contravened the law and you may have a cause of action against him.
In answering this we assume that the sale proceeds did not fully meet the amount of the decree. Should the amount realized out of the sale be greater than the decree amount, our answer shall vary. We suggest you contact your attorney for further guidance.
Value of evidence by complainant’s relatives
In 2007 my elder brother was accused of assault with intent to cause grievously bodily harm and the incident was reported to the police station by the complainants’ mother. The matter was brought before Mbeya District Court, where ultimately the case was heard and he was convicted and sentenced to serve a prison sentence. In course of hearing, the prosecution side brought five witnesses to prove their case. However, four of the prosecution witnesses, upon whom conviction was based, were the complainant’s relatives.
I sincerely state that my brother did not commit the alleged offence and the Court could not have found him guilty had it not acted on the complainant’s relative’s evidence which in fact were unreal. What value does the evidence of the relative have in law? Can the court solely act on it to convict and what are the chances of success on appeal? My brother filed his appeal to the High Court but since 2008 his appeal has not been heard. Court’s clerks have failed to give any promising answer as to the date of the appeal. Is it not possible that the complainant’s relatives are playing foul against my brother? Please advice me on appropriate steps to take.
ML, Mbeya
From the facts, your main issue is wheather a complaint’s relatives can legally testify on behalf of the former. The law of evidence is very clear that generally every person is competent to testify unless the Court considers them to be incapable of understanding the questions put to him/her or can not give rational answers to those questions by reasons of tender age (not more than 14 years), disease (whether of body or mind) or any other similar reason.
There is no rule of practice or law which requires the evidence of relatives to be automatically discredited. In absence of the exceptions given above, the evidence of a relative is as good as of any other person and the Court can solely rely on it for proper conviction. However, if the said witnesses appears to be biased or have questionable credibility, the Court will receive such evidence with cautioin and will warn itself before relying on it during convition.
In such instance the Court will require some other evidence for corroboration. the defence counsel also plays a significant role in assisting also plays a significant role in assisting the Court in reaching a just conclusion.
With regard to chances of success in your brother’s appeal, this will depend entirely on the evidence on Court records. The appellate Court will go through the evidence and see if the case was proved to the standards required by law, which in teh circumstances is beyond reasonable doubt.
It is the prosecution side which is duty bound to prove their case beyond reasonable doubt and should the defence be able to raise even the slightest doubts in the mind of the magistrate or judge, as the case might be, the magistrate or judge shall acquit the accused. Since the appeal is before the High Court, you are advised to contact the District Registrar of the respective High Court, who will give you enough information as to why your brother’s appeal has not proceeded. There could be various reasons for the said delay.
Charged with assault
I have been charged with assault after I punched one of my friends in the wee hours at a bar during Easter weekend last year. My case has not started but I have been very unfairly treated as on the material day, another friend of mine mixed my red bull with some alcohol that resulted in this behavior. It is well known amongst all my friends that I never drink alcohol. What should I do?
VF, Dar
We hope you are not trying to mislead us on one hand you do not drink; on the other hand you were in a bar till late at night. Whilst we do know of few people who don’t drink and go to bars, we know of fewer people who do not drink and are in bars till very late at night! In any case, we answer your question assuming that you really do not consume alcohol.
Our law is very clear in that intoxication shall not constitute a defence to any criminal charge. However the law states that intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission cmplained of did not know what he was doing and (a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or (b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.
In this case, you have a solid defence in that the criminal action was a result of lacing of your drink. There are many cases that have dealt with such defences and we do not see why you should not be able to defend yourself successfully. You will need to start working on witnesses who will come in any testify for you.