Q&A – 19 August 2013
Withdrawal of suit after settlement
I have sued my brother in a court of law over a land ownership dispute. Due to our elders’ involvement, we have reached a settlement and agreed to realign our boundaries. I am now advised to go and withdraw the suit in court so that everything will go on as we have agreed. Is there a procedure for doing this? Will I be in a position to file the suit again in case my brother does not honour what we have agreed? Please guide.CG, Kilimanjaro As matter of law, as similar as to one’s liberty to institute a suit, a party who institutes a suit is likewise given liberty to withdraw the suit if he/she no longer wishes to prosecute it. This is more of a one sided matter, because it only involves a plaintiff even though parties might have reached settlement in the dispute.
Under normal circumstance if a person thinks that he might later on still wish to pursue the same matter in court, then a prayer of withdrawing the suit with liberty to re-file it should be made. In your case, you are also free to withdraw the suit if you have reached a settlement with your brother. However, the law gives you the option to record your settlement in court so that it becomes a decree of the court. This will also take away your uncertainties as to honouring of the terms of settlement with your brother. We believe the second option seems to be more convenient in your case but your lawyers can guide you further.
Employer strict on breast feeding time I am a mother of twins staying in the suburb of Dar and have resumed to my workplace following completion of maternity leave. However the difficulties I am now facing are intolerable as the human
resources officer has informed me that our company’s policy allows only two hours of breast feeding including lunch break. Thus should if go for breast feeding is my lunch break of one hour also inclusive? Is this as per the labour laws? Please guide.
GR, Dar
The Employment and Labour Relations Act No 6 of 2004 is very clear under Section 33 (10) by stating that where an employee is breast feeding a child, the employer shall allow the employee to feed the child during working hours up to a maximum of two hours per day. The law has not said that the two hour shall include lunch time and if it would have meant that, it would expressly have stated so. The policy of your company is not in accordance with the foregoing provision. The breast feeding time was meant for a child and lunch time was for the employee. You may may bring this to the attention of the HR officer so that your company policy may be aligned in line with the law’s provisions. Otherwise you may seek further assistance from a lawyer and/or labour officer should the company continue to maintain such a position.
General memorandum of company
If I am dealing with a company that is manufacturing but whose memorandum talks about the company being allowed to engage in almost anything, is such memorandum valid?
AM, Dar
The Companies Act provides that where the company’s memorandum states that the object of the company is to carry on business as a general commercial company:-
(a) the object of the company is to carry on any trade or business whatsoever, and
(b) the company has power to do all such things as are incidental or conducive to
the carrying on of any trade or business by it.
From the above, it is legal for the memorandum to have general objects. You can however consult your lawyers for further guidance.
Additional evidence at Court of Appeal
My advocate who left out a key piece of evidence says that we cannot produce this evidence at the Court of Appeal although it is a case winner. Is this true? What do the rules say?
HE, Dar
As a general principle the Court of Appeal only hears legal principles. However the Court of Appeal Rules of 2009 categorically state the following in section 36
(1) that 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.
From the above, you can see that additional evidence may be allowed at the Court of Appeal. We suggest you contact your attorney again for further guidance.