Q&A – 19 September 2011
Charged with wrong offence
We are currently in prison serving 30 years and are about to lodge an appeal. I admit that we attacked a woman and stole from her. We were caught, charged and convicted of armed robbery. Our co- prisoners tell us that we were charged with the wrong offence since neither of us had any weapon when we robbed that woman. The prosecution admitted that we had no weapon; is not unfair because we are serving 30 years imprisonment while the appropriate conviction for robbery is 15 years. Please advise.
FL & YR Moshi
Atleast you are telling the truth- unfortunately the truth doesn’t change what you did to the woman.
The charge to which you are convicted is correct. Armed robbery was previously defined to require presence of a weapon(s) like knives, gun, arrows, stones etc. Under our Law as it stands amended today, if two or more people rob a person together and use or threaten to use force even if they do not have a weapon, the offence committed is that of armed robbery. The other person is assumed to be the weapon because the larger the company the more threat to the victim. In your case since there were two of you, although none having a weapon, the conviction and sentence is appropriate as provided under the Minimum Sentences Act. It is unlikely that your appeal will succeed on these grounds.
Landlord not real owner
I have leased a flat from a Landlord who is actually not the landlord of the premises. It is the brother of this purported landlord who actually owns the flat I live in. The current landlord is threatening me with eviction for non payment of rent. I am resisting and claiming that there is no lease as the owner is not the real owner. What should I do?
CC, Mwanza
You seem to have some ulterior motive; what you are effectively telling us that whilst you are enjoying the flat you do not want to pay the rent as you believe that the current landlord is not the owner of the flat. You have not told us if what you believe to be the real owner has contacted you or otherwise and how you justify not paying rent.
Case law from other jurisdictions as it stands today does not allow you, as the tenant, to question the title of the landlord. Your relation is limited to that between a landlord and tenant, nothing more.
Under the current agreement, you are in breach of payment of rent which is a material breach and you should, we agree, be evicted. You either pay up or face the eviction. Unfortunately with the details you have given us, we cannot advise anything better.
Judges interrupting my advocate
My son has been charged and convicted of an offence and his second appeal is at the Court of Appeal of Tanzania. During the hearing of the appeal, the sitting Judges were asking a lot of questions and thus interrupting my lawyer in his course of submitting the appeal. I believe the constant questioning prevented our lawyer to fully concentrate on his submissions; instead everything turned around and the Judges seemed to be prosecuting and investigating the case. I am not pleased with the Judge’s behavior. The Judgment of the court is now pending but I am doubtful if the Judges will do justice. Please advise.
JM, Arusha
If a court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine. The Judge must become a participant in the trial or appeal, as the case maybe, by evincing intelligent active interest by putting questions to witnesses or parties in order to ascertain the truth.
In order to discover the truth, the Judge may ask any question in any form, at any time of any witness, or of the parties, about any fact relevant or irrelevant provided he does so without any hint of partisanship and without appearing to frighten, coerce, confuse, intimidate or bully witnesses or parties.
The Justices of Appeal of the Court of Appeal of Tanzania normally do ask questions to clarify points. From the facts you have given us we are unable to quantify the degree of this interference and whether it was abnormal. Your advocate can guide you on whether he believed the asking of the questions interfered in his performance and whether he thinks the Justices had pre determined the matter even before he started his submissions. He can guide you better.
Early repayment claims by bank
I had a five year loan with a bank in Dar es Salaam. Our project did very well and we managed to verbally agree with the bank CEO that we pay back the amounts borrowed earlier. We managed to clear the debt within 3 years. Recently a new CEO has come in the bank and wants us to pay an early repayment charge on the loan. This was not agreed with the former CEO. What should we do?
NC, Dar
This is a very interesting question. Most of the problems we address in the banking sector are those of loans not being paid. This is a very rare situation where we hear issues arising after a borrower has paid the entire loan.
If there was no agreement on the payment of early repayment charge, then the answer is simply don’t pay it. Why should you if it was not agreed upon? However there are certain loan agreements that specifically provide for early repayments.
When you pay back your loan early, the bank has effectively lost on the interest income it would have earned had you continued with the loan. It is with this in mind that banks insert this early repayment clause whereby you actually pay a certain additional amount to pay back the loan earlier. You might want to go through the loan documentation and see if this clause does exist as likely the loan documentation would prevail over the former CEOs verbal assurances.
The law here is still developing but Courts in other jurisdictions have held that early repayment charges are compensation for lost interest income and therefore null and void. The same Courts have however also noted that creditors may charge debtors for additional costs incurred as a result of early repayment. We recommend that you consult your lawyers for further guidance.