Q&A – 18 April 2011

Admissibility of judgment in criminal trial

In early 2009 my car was severely damaged in a road accident. The driver of the vehicle which caused the accident was tried at Kinondoni District Court. At the beginning of trial, the driver denied the charges against him. After witnesses testifi ed the driver changed his plea to that of guilty. Following his change of plea he was convicted and sentenced to pay a fi ne. Thereafter I instituted a civil case at Kisutu Court against the driver for compensation of my damaged motor vehicle. Unfortunately my two witnesses are indisposed- one died last year and the other is not seen and all efforts to get him have failed. I have requested the Court to consider their evidence in the traffi c case but the trial magistrate has desisted from my prayer. Whatshould I do? Please assist as I suffered a very big loss.
GL, Dar

The magistrate’s refusal of your request is justifiable. A final judgment in criminal proceedings is merely relevant where it declares any person to be guilty of the offence he is charged with. The judgment in criminal proceedings is not and cannot be evidence in a civil suit. All questions in a civil suit, even if the cause of action therein would be connected with the criminal proceedings, must be determined independently. As far as your situation is concerned, the magistrate in the civil suit is only called upon to determine claims of damages. He knows nothing of the evidence that was before the criminal Court, because issues in criminal proceedings are different from claims of damages in the civil suit. As such statements of evidence in criminal proceedings cannot be admissible in the civil suit. This is the law of the country as it stands today.

The facts you have given do not tell us what kind of evidence your two missing witnesses are required for. You should continue with your case because proving a case does not depend on the number of witnesses rather on the weight of evidence in which case even one witness suffi ces. You should contact your lawyer for further advice.

Arrested for enticing a woman

For quite some time my neighbor has been accusing me of having an affair with his wife. In January 2010 there was a baptismal ceremony at our other neigbour’s house in which my family and that of my suspicious neigbour were invited. Incidentally my neighbour found me standing outside the house with his wife, got very upset and took her home after yelling at me infront of others. Shortly after they had left, some policemen came and arrested me. At the police station I was interrogated on the incident and released a day later. It is untrue that I am having an affair with the wife of the neighbor.
PO, Moshi

The legendary James Bond would be in big trouble if enticing a woman or ones wife would be a criminal offence. It is not and hence you cannot be arrested for this, even if you were trying to make any sort of move. By answering in this manner we are not trying to say that you should do so, or continue to do so- we are strictly speaking from a legal point of view. It is a moral wrong to entice another man’s wife- it is a tort, a civil wrong and not a criminal offence. The Police have no power to arrest a man who is alleged and even if proved to have committed that wrong. In your case, you can sue both the policemen who arrested you and the neighbour for damages for false imprisonment. On the other hand since such enticement is a tort, the husband can sue you for damages if he can prove a good cause of action against you.

Misplaced title deed

I am owner of a large piece of land in Mikocheni. I cannot find my original title deed and wish to know the process of getting a new one issued. How do I go about this? How do I know that there has been no mischief with the ownership? Presently the land is occupied by a tenant who has a long lease over my property. What should I do?
PP, Dar

The worst case, and we hope that is not the case, is that someone has used your original title deed and transferred the property. This would obviously be a fraudulent transfer but you would have to go through the tedious process of fighting this out. To fi nd out if there has been any mischief we recommend that you do an offi cial search at the Land Registry in Dar es Salaam.

To get a new title, you can apply to the registrar of titles by making a formal application. Attached to the application you have to provide a police loss report. In the application you have to show that all necessary efforts to find the said title have been made and proved futile.

When the registrar is satisfi ed that all efforts to find the title have been exhausted, a notice will be published in the gazette and in a local newspaper, and after expiry of 30 days and there being no objection thereto, a new certifi cate will be issued. The new certificate of title issued shall be deemed to replace the certifi cate of title previously issued. After a new title is issued, and if the old title is recovered, it must be surrendered to the registrar for cancellation.