Q&A – 22 August 2011

Suing an embassy for non payment

We entered into a contract to construct a portion of a building for an embassy in Dar and have fulfilled all our obligations. It has now been six months and our payment is not forthcoming. My lawyer says that we should proceed to sue the embassy not only for the amount outstanding but also claim other damages. What should I do? Can I report them to the police?
PL, Dar

Before we jump the gun and discuss about the types of damages, we must bring to your notice that embassies are protected under the Diplomatic and Consular Immunities and Privileges Act. This act provides special immunities and privileges to various international organizations and embassies including immunity from attachment or execution. The matter would be different if the embassy has waived its immunity, which we doubt any embassy would do. We advise you to consult your attorneys before dreaming about getting damages from the embassy.

On a more realistic note, you might want to find out the cause of the non-payment. We are aware that in construction many contractors get penalized because of delays they cause. After speaking to your attorneys, you might want to consider a more mediatory approach and understand the actual basis (that you have not disclosed to us) of the non-payment.

As stated above and unfortunately for you, the embassies enjoy great protection under the law. Reporting the embassy to the police will not help as generally the police have no powers to interfere in such embassy matters. This is a contractual matter, not a criminal issue and the police will not entertain you.

Case over with one witness

I was shocked to lose a case at the Commercial Court after the plaintiff brought only one witness. On the other hand we brought more than eight witnesses to dispute the facts. What should I do?
FP, Dar

There is no law that requires you to bring a minimum or a maximum number of witnesses. The number of witnesses is immaterial; it is the credibility of the testimony which is important and the law of evidence act specifically disregards the number of witnesses required to prove a certain case. If you have lost the case, you should consider filing an appeal. Your attorneys can guide you further.

Defective affidavit consequence

We made an application at the High Court where the other party raised an objection on the affidavit we filed. It was a very minor omission in that the affidavit did not show the place and date at which it was sworn. Whilst the application was meritious, the Judge said there was no application before him and did not entertain the matter. What should we do? Is the Judge biased?
OI, Dar

You are undermining the role of an affidavit in pleadings. An affidavit is a declaration of facts that is made voluntarily by the declarant before an officer authorized to administer oaths. The affidavit must be confined to such statements as the declarant is able of his own knowledge to prove but may also contain statements of information and belief with grounds stated thereon.

Apart from the statement declaring the facts, an affidavit also must contain a verification clause, a jurat and signature of the declarant.

Without these an affidavit is rendered incurably defective.

In your case, the Jurat was defective which is a certification that states when, where and before what authority the affidavit was made. The absence of the date and place at which the affidavit was sworn hence renders it incurably defective and usually entails in your application to be struck out.

Since there was no application before the Court because there of a defective affidavit, the Judge naturally cannot entertain you. On the facts we do not see how the Judge was biased; we suggest you refile the application in Court.

Importation of machine

I wish to import a very expensive machine from Europe and wish to learn how I can legally protect myself in the event that the machine does not work when we install it in Tanzania. Is there a way we can get full protection under the law? What steps should we take to be absolutely certain about this machine? What is the magic you can suggest? The company we are dealing with has a very comprehensive and professional website but I want to be 100% sure.
IT, Moshi

Unfortunately we have no magic wand and cannot eliminate the risk of the machine not working when it is installed. However we have tried below to indicate on how best you can reduce your exposure.

First and foremost, it is very unlikely that your supplier will allow you to make the payment after the machine has been installed. If this is possible, it eliminates almost entirely the risk of having your funds exposed with the supplier.

The other most common way of protection is by way of opening a letter of credit (LC) and appointing an international inspection company to inspect the machine for you prior to shipment. Again with highly sophisticated brand new machines, the process of inspecting the machine by actually switching it on prior to shipping might be difficult but it is not uncommon. The Bank that you open the LC with will only transfer the funds to the nominated bank of the supplier after the bill of lading and a proper inspection certificate is presented to it.

We also recommend that you get an all risks marine policy for the shipment when it is being shipped. Also a nice looking website does not mean it is a reliable company and you should conduct your normal due diligence. It is not unwise to pay them a visit to make sure they are the actual suppliers and not brokers or ‘tapelis’.

Lastly, if the machine is as important to you as you make it sound, and since you seem very nervous about this, you may want to appoint a law firm in the town or country that you are purchasing from. The law firm will ensure that a proper and fair contract is drafted that adequately protects you. The choice of law in the contract is an important factor as a judgment obtained in Tanzania against a company in Europe may not be executable in Europe.