Q&A – 20 June 2011

Mother dead, child helpless

I am a 32 year old widow my husband having died ten years ago. After his death I left our home and went to live with my cousin. My cousin was a very rich woman did not have any children and requested me to give birth to a child for her. It was explicitly agreed that she would take care of the child. I conceived and delivered a baby boy who is now 3 years old. In 2010 my cousin died without leaving a Will. My late cousin’s siblings are now scrambling after the properties and other assets and are not supporting the child despite knowing clearly what the arrangement was. I do not have the means to support the child. Can I claim some part of the deceased estate for the child? What should I do?
JM, Dar

From the facts it is clear that the child is not your late cousin’s child. You have not mentioned who the father is but you are the biological mother of the child. We have noted the agreement that you had with your cousin. The fact that there is no Will further complicates the matter. Additionally the law has held in similar circumstances that an agreement by a woman to carry and bear a child at the behest of another with a view to that other person subsequently assuming the parental role is unenforceable. That is the strict interpretation of the law in the interest of the wider public policy. Furthermore a parent cannot by contract transfer to another his or her rights and duties in respect of a child, because the law imposes such duties in respect of a minor and for its benefit unless it is an adoption case.

You are in a tricky position here- we suggest that you meet your lawyers to look at the possibility of invoking the principle of promissory estoppel here. We must warn you that it is a weak argument but worth a try.

Change of plea after sentence

My son assaulted his friend when the two were coming home from school, causing him to suffer bodily harm. He was arrested and charged and when asked to plead he pleaded guilty to the offence. He was accordingly sentenced to a term of 3 years despite being his first offence. The trial magistrate also relied upon the prosecutor’s unproved allegations that my son is sadistic. Is this not an unfair punishment on my son? Is there possibility of setting aside the whole proceedings so that the prosecution calls evidence to prove the charge against my son?
MA, Morogoro

You have admitted that your son attacked someone and it seems the attack was for no good reason otherwise you would have said so. Your son then pleaded guilty to the charge and you now want him to plead not guilty so that the case can resume. Simply put your question is can an accused person, who has pleaded guilty and been sentenced, rebut his guilt and plead not guilty.

Quite unfortunately the answer to this is in the negative. According to the law, the accused can only change his plea any time before the Court pronounces a sentence.

On the sentencing part, it is true that as a first offender and one who readily pleaded guilty to the charge, your son deserves leniency.

However this will depend on the facts and circumstances of the case. In this instance for example we are not told what facts the prosecutor presented in Court after the plea of guilty. You have also not told us of the severity of the injuries inflicted on your son’s friend nor have you stated the age of your son. Either way, you should look at the possibility of appealing against the sentence to the High Court. You need to make sure that such application is made within the prescribed time.

Remuneration in criminal proceedings

I am a farmer living in a village about 12km from Mbulu District. In 2008 I was charged in Mbulu District Court for the offence of entering into my neighbour’s shamba and destroying crops therein. I was released on bail but had to continue attending Court every month. After over sixteen months of adjournments on basis of incomplete investigations, the the prosecution brought only one witness. The Court returned a no case to answer in my favour but did not make an order as to costs to enable me recover the money I had spent on my lawyer and the travelling. My lawyer says that we cannot claim any money from the Court or complainant for the many months of suffering I had to go through because of these baseless allegations. Is this true? What should I do?
SD, Dar

We cannot deny that defending a criminal case is both expensive and stressful. Being charged with a criminal offence and out on bail entails that you appear each time the case is called, exactly what you had been doing.

Unfortunate for you, unlike other jurisdictions where the Courts grant costs to the accused in a criminal case when he or she is successful, Tanzanian Courts do not do so. In Tanzania the law governing remuneration in respect of services in Court proceedings is the Advocates’ Remuneration and Taxation of costs Rules made under the Advocates Act. These rules however do not apply in criminal proceedings.

The indirect way of recovering costs incurred by a person in criminal proceedings is by way of a suit under the principle of malicious prosecution or false imprisonment whereby such costs may be claimed as damages against the complainant. To succeed however the claimant will be required to plead and prove during the trial the loss he incurred in defending the criminal charges against him. We suggest that you and your legal advisor look at this option. It may sound simple but there is a three tier test that must be satisfied for your claim to be satisfied. Your advisor can guide you more.