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Q&A – 27 November 2017

Reissuing power of attorney

If I have been granted a power of attorney, can I also give someone else a power of attorney based on this power of attorney. In short I want someone else to act as the attorney not myself, although I am the original holder of the power of attorney.
RB, Dar

A Power of Attorney (POA) is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is usually the donor and the one authorized to act is the done or the attorney.

The person who creates a power of attorney, known as the grantor, can only do so when he/she has the requisite mental capacity. In some powers of attorney the grantor states that he/she wishes the document to remain in effect even after he/she becomes incapacitated. This type of power is commonly referred to as a durable power of attorney which has, to the best of our knowledge, not been tested in Tanzania. If someone is already incapacitated, it is not possible for that person to execute a valid power. If a person does not have the capacity to execute a power of attorney (and does not already have a durable power in place), often the only way for another party to act on their behalf is to either refer to the person’s will or make an application in court for the appointment of a guardian to act in the best interests of the person.

Coming to your specific question, it is very unlikely that you can further delegate you powers under the power of attorney, unless the power of attorney specifically states so. Under the legal principle of delegata potestas non potest delegari, no delegated powers can be further delegated. Your lawyer can guide you further.

Right of appeal in death sentence

If a death sentence is passed in Tanzania, does the accused have a right to appeal? If the appeal is pending, and there is no stay of execution, can the person be executed? What are the rules for stay of execution in civil appeals and how soon must a notice of appeal be filed within?
PK, Mtwara

Yes the person can appeal the death sentence. Rule 11(1) of the Court of Appeal rules clearly states that no sentence of death or corporal punishment shall be carried out until the time for giving notice of appeal has expired or, where notice of appeal has been given, until the appeal has been determined. Hence in criminal appeals as soon as one files a notice of appeal, until the appeal has been determined, any death sentence or corporal punishment cannot be carried out. In civil appeals stay of execution must be applied for and granted- there is nothing like an automatic stay. Rule 11(2)(d) states the following conditions to be satisfied for stay of execution to be granted: no order for stay of execution shall be made under this rule unless the Court is satisfied- (i) that substantial loss may result to the party applying for stay of execution unless the order is made; (ii) that the application has been made without unreasonable delay; and (iii) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

A notice of appeal must be lodged within thirty days of the date of the decision against which it is desired to appeal. Your lawyers can guide you further.

Jurisdiction of criminal statute

Does the core criminal statute in Tanzania, the Penal Code, extend to offences committed outside Tanzania in an aircraft that originates from Tanzania? As a Tanzanian can I be charged if I commit an offence against the Penal Code outside of Tanzania whilst in this aircraft?
TY, Arusha

Section 6 of the Penal Code states that the jurisdiction of the Courts of Tanganyika for the purposes of this Code extends to (a) every place within Tanganyika and within the Territorial waters; (b) any offence committed by a citizen of Tanganyika, in any place outside Tanganyika; (c) any offence committed by any person on an aircraft registered in Tanganyika. Hence if for example you punch someone in a Tanzanian registered aircraft which is in another country, you can be charged in Tanzania although you committed the offence in another country. This long arm of the Penal Code allows Tanzanian authorities to protect its people and property accordingly even if you are not in Tanzania.

Flies in toothpaste

I bought a toothpaste from a supermarket in Dar and when brushing my teeth found that there was a fly in the toothpaste. I was quite shocked and decided to remove all the toothpaste from the packing only to find more flies and other particles in the toothpaste. I have become paranoid ever since and do not trust packed products no matter how beautifully designed they are. What can I do?
GJ, Dar

In case you believed that “beautifully packed products” cannot be tainted with flies and other particles, then you are greatly mistaken. There are many cases where some of the top brands have had major goof ups- bottled drinks having cockroaches, lipstick having pig hair, cars having wrong brake pads, aircraft with malfunctioned engines, sofas with dead rats inside the lining, drugs wrongly packed, cd players where the rotating cd slips out, computers that burn the users thighs, to mention a few. You must remember that it is your fellow humans packing and manufacturing and much as we would not want this to happen, such occurrences do happen. The fact that you bought the toothpaste from a supermarket does not mean that you cannot sue the manufacturer wherever he is.

In fact you can also sue the supermarket, the wholesaler who supplied the supermarket and the importer if different from the wholesaler. Your lawyer can guide you further as you will need concrete evidence to prove this- mere assertions will not take you far.

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