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Q&A – 16 October 2017

Obscene, pornographic messages

I am a father of three and my daughters have cell phones which I proudly bought for them. Sadly there are so many obscene and pornographic messages flying around on WhatsApp, text and e mail including video clips of disgusting nature. Isn’t there a law which provide for these things?
AL, Dar

The Electronic and Postal Communications Act of 2010 states that any person who by means of any network services or applications service provides any obscene communication to any person commits an offence and shall, on conviction, be liable to a fine not less than five million Tanzanian shillings or to imprisonment for a term not less than twelve months, or to both and shall also be liable to fine of seven hundred and fifty thousand Tanzanian shillings for every day during which the offence is continued after conviction.

As per the said provision, the penalty for such communication serious with hefty fines and possible imprisonment. If you can pin point the persons who sends such messages to your daughters, you can report the matter to the relevant authorities and proper measures can be taken against them. Even if you cannot pinpoint such a person, this is reportable as all mobile phone numbers are registered. Your lawyer can guide you further.

Pornography is also illegal under our penal statutes- very few people seem to remember that. It is an offence that is imprisonable. Furthermore, under the newly passed Cyber Crimes Act 2015, publishing pornography attracts a fine of between 20 to 30M shillings with a custodial sentence of 7 years.

Tanzanian contract with foreign jurisdiction

I executed a contract to be performed in Tanzania but the choice of law is English and English courts have jurisdiction to resolve the disputes. Now the other party has breached the agreement and I don’t see the necessity of filing a case in the chosen jurisdiction, can’t I sue locally? Can I be forced to perform a local contract with a foreign clause such as this? Is there no law to protect me?
JK, Arusha

Courts always endeavor to observe the exact word of the contract as agreed by the parties because the intention of the parties at the time of contracting must be respected unless the Court has reasons to depart from the intention of the parties, which is quite rare. It is unlikely that the Courts will agree to entertain the dispute in Tanzania while both of you expressly agreed to apply English law and chose English Courts. The best available option for you is to request the other party to agree to apply Tanzanian law and Tanzanian Courts to have jurisdiction which we doubt they will agree to.

Such contracts are not uncommon and even if a Tanzanian Court had jurisdiction, such a Court would not know the English laws and hence would not in any case be able to entertain this here. As for being forced to stick to English Courts, please note that this was the clause both of you agreed to by signing on the contract. You cannot now turn around and say that it should not apply. The four corners of a contract are to be respected. Your lawyer can guide you further as there may be other facts in the contract that you may not have spotted that could be used in your favour.

Mandatory mediation at Commercial Court

I filed a case against a party at the Commercial Court and am now being forced to mediate with the other party, whom I cannot even look at. This is quite discouraging and surely someone is upto some tricks somewhere. How do I skip mediation?
UY, Dar

The law and in particular the Commercial Division Procedure Rules of 2012 clearly provide for a mandatory mediation between the parties. Rule 34 states that (1) The party or his advocate or both, where the parties are represented shall be notified in the form set out in Form No.3 in the Schedule, and shall attend the mediation session. (2) Where a third party may be liable to satisfy all or part of a judgment in the suit or to indemnify or reimburse a party for money paid in satisfaction of all or part of a judgment in the suit, the third party or his advocate may also attend the mediation session, unless the Court orders otherwise. Further, rule 35 states that (1) a party to a mediation session shall have authority to settle any matter during the mediation session and (2) A party who requires the approval of another person before agreeing to a settlement shall, before the mediation session, arrange to have ready means of communication to that other person throughout the session, whether it takes place during or after regular business hours.

Rule 36 states that where it is not practical to conduct a scheduled mediation session because a party fails without good cause to attend within the time appointed for the commencement of the session, the mediator may- (a) dismiss the suit, if the non-complying party is a plaintiff, or strike out the defence, if the non complying party is a defendant; (b) order a party to pay costs; or (c) make any other order that is deemed just.

From the above, you can see that you need not attend mediation yourself but can authorize someone to appear instead of you. Such person should either have the authority to make a decision and if you cannot give them authority, then you need to be available on mobile, skype or other communication device so that such person can contact you to get approval during the mediation session. Hence you cannot skip mediation and in the event you do, your case may be dismissed. Please note that no one is playing any tricks with you; just as in other jurisdictions, Tanzania has a mandatory mediation system to assist sort differences out. Your lawyers can guide you further.

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