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Q&A – 28 August 2017

Canonical disability

My husband is suffering from a canonical disability. I am not sure what to do. Is this a ground for me to claim damages from him? What else can I do?
TE, Lindi

Canonical disability is the inability of either party to have sexual relations with the other. It is another word for impotence. You cannot claim damages if this is a medical condition and which occurred after the marriage. However if you were unaware of this before marriage and were made to believe that all is normal, then you may have a claim for damages. As lawyers we are not qualified to guide you on the medical remedies available but if canonical disability is permanent and incurable then it is a valid ground for divorce.

When does a law comes into force

There is a particular law which was passed in the National Assembly in Dodoma on a certain day but we are unsure when it came into force. Is it immediately after the President assents to it?
IO, Moshi

Section 14 of the Interpretation of Laws Act states that every Act shall come into operation on the date of its publication in the gazette or, if it is provided either in that Act or in any other written law, that it shall come into operation on some other date, on that date. Hence the law must be published in the gazette to come into force, otherwise it comes into force as shall be stated in the law itself. For example some laws state that the law comes into force upon an order being gazetted by the Minister responsible. You hence need to read the law itself to know when it was to come into force.

Appealing after an appeal

Is it possible for me to appeal from the Court of Appeal? How does one do that?
PP, Dar

Normally the Court of Appeal judgment after an appeal is final. However there is what is called a review, based on some very narrow grounds, that one can lodge after losing an appeal.

Section 4(3) of the Appellate Jurisdiction Act and section 66 of the Tanzania Court of Appeal rules addresses reviews and states that the Court may review its judgment or order, but no application for review shall be entertained except on the following grounds: (a) the decision was based on a manifest error on the face of the record resulting in the miscarriage of justice; or (b) a party was wrongly deprived of an opportunity to be heard; (c) the court’s decision is a nullity; or (d) the court had no jurisdiction to entertain the case; or (e) the judgment was procured illegally, or by fraud or perjury.

The rules state that an application for review shall as far as practicable be heard by the same Justice or Bench of Justices that delivered the judgment or order sought to be reviewed and where the application for review is granted, the court may rehear the matter, reverse or modify its former decision on the grounds stipulated in sub-rule 1 or make such other order as it thinks fit.

Unsolicited advertisements from suppliers

My inbox is flooded with mass e mails being sent by suppliers who are promoting their services. I get e mails from those offering courses, to those selling computers. I hear there is a new law that protects us as consumers from such messages. What about mass messages inviting persons to attend a debate or seminar? Please guide.
OI, Dar

The newly enacted law, The Electronic Transactions Act of 2015 provides for this and makes it illegal for such commercial suppliers to send you unsolicited messages. Section 32 of this Act states that (1) A person shall not send unsolicited commercial communication on goods or service unless- (a) the consumer consents to the communication; (b) at the beginning of the communication, the communication discloses the identity of sender and its purpose; and (c) that communication gives an opt-out option to reject further communication. (2) The consent requirement is deemed to have been met where- (a) the contact of the addressee and other personal information were collected by the originator of the message in the course of a sale or negotiations for a sale; (b) the originator only sends promotional messages relating to its similar products and services to the addressee; (c) the originator offered the addressee the opportunity to opt-out and the addressee declined to opt-out; and (d) an opportunity to opt-out is provided by the originator to the addressee with every subsequent message. (3) An originator who contravenes this section commits an offence and shall, upon conviction, be liable to a fine of not less than ten million shillings or to imprisonment for a term not less than one year or to both. You can see that if the commercial advert is unsolicited, it is illegal and the sender can be fined ten million shillings or be imprisoned for a minimum of one year, or both. However this does not apply to non commercial communication meaning that mass e mails with free debates and seminars would not fall foul under this law.

Further, section 20 of the Cyber Crimes Act of 2015 states that (1) A person shall not, with intent to commit an offence under this Act – (a) initiate the transmission of unsolicited messages; (b) relay or retransmit unsolicited messages , or (c) falsify header information in unsolicited messages; (2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine of not less than three million shillings or three times the value of undue advantage received, whichever is greater or to imprisonment for a term of not less than one year or to both.

It is important for those sending out mass e mails for commercial purposes or those emails that will end up being an offence under the Cyber Crimes Act to be careful as they can be fined and imprisoned.

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