Q&A – 29 June 2015

Injunction against a song

I am a music fan tuning and following different programs on a radio station. There is one song which is nowadays played and I feel it offends morality. Can I get a stop order for this song not to be played?
RT, Dar

Injunctions or stop orders are normally reliefs given by Courts for prevention for an injury or preservation of a status quo.

The grant of these orders is purely within the Court’s discretion. In order for one to succeed, the law requires you to demonstrate the following; first that there is a serious question to be tried on the facts alleged and probability that the complainant/applicant will be entitled to the relief prayed for. Secondly that the Court’s interference is necessary to protect the complainant from the kind of injury which may be irreparable before this alleged right is established. Lastly, you must, on balance of convenience, show that there will be greater hardship and mischief suffered from the withholding of the injunction than by it being granted.

Although you have not told us exactly how you believe the song “offends morality,” we are of the opinion that you do not satisfy a number of the above conditions and might not be successful in getting an injunction.

You may wish to explore other forums and complain for instance at the BASATA (National Arts Council) or at the TCRA, whichever will suit you. You must appreciate that what might be offending morality 50 years ago might be normal today. It all depends on what exactly the song is depicting.

Threat to be sued for guaranteeing a loan

I guaranteed my uncle to pay a loan he took from a businessman. This guarantee was reduced in writing and I signed it. It was clear that my uncle was to pay the loan in one year. After my uncle failed to repay, he went back to the businessman and entered into another agreement where my uncle put his land located in the outskirts of Dar es Salaam as security. The businessman gave him some more money and they also agreed on further interest. In this second arrangement, I was not involved at all. My uncle has further defaulted to honor his promises and the businessman is now after me saying that I guaranteed so I should pay. He says that the land put as security will not be enough to cater for full payment of the loan and interest. Will I have to pay for the whole amount?
DF, Dar

The law of contract Act of Tanzania has a provision which states that any variance, made without the surety’s consent in the terms of the contract between the principal debtor and the creditor, discharges the surety as to transactions subsequent to the variance. We think the aforesaid provision of the law comes to your rescue on the liability on the changes made to the earlier terms between your uncle and the said businessman. It was improper under the law to make those changes behind you and yet for you to be liable for the entire debt.

The businessman cannot take you to task for the changes made to the earlier agreement without your knowledge and consent. In short he cannot import such subsequent liability upon you. We think if you will be sued, then you will have a good defence to that effect.

On whether you can totally be absolved of liability, this depends on how your first guarantee was drafted. It also depends on how the second loan was granted, what information the businessman had, whether there was collusion and the like. If there was any foul play in the granting of the second loan, then you might also be able to get out of your first guarantee. Before you get too excited with this proposition, we recommend you contact your lawyer who can study the documentation.

Husband dictates what I wear

I am married to a foreigner and we live in Tanzania. Strangely my husband, who comes from a certain part of Africa, wants me to dress in his country’s costumes whenever I am out of home. This is even when I go for shopping in the market. He maintains that in marriage law he has such power, and I should choose whether to obey him or he will divorce me. Does the law really say this?
YT, Arusha

There is no provision we have come across in the law of marriage act in Tanzania which gives a husband such right. May be in his home country but we doubt it very much, especially in this era.

Out of the known grounds of divorce, dress code is not within the scope. Your husband might be obsessed with his customs but cannot impose it on you. Dressing is a matter of choice and there is no law that governs it, save for dressing appropriately.

We recommend both of you get some counselling and resolve this matter. Your husband has married you, not the clothing you come in, and perhaps the counsellor might be able to assist.

Doctor arrested during surgery

My doctor was performing a same day surgery on me and the police literally pulled him out of theatre and arrested him. I was left under anesthesia for 2 hours before another surgeon arrived. Do the police have such rights?
EN, Mbeya

We do not have enough facts to know what the surgeon had done but there is a protocol for the police to follow. They are also guided by the law and arresting someone like a surgeon, who is in the middle of surgery, and whom they can arrest after surgery, is in our opinion illegal. Since you were under anesthesia there is nothing you could have done.

Are you sure those who arrested him were actually police officers as this sounds very strange? We suggest you lodge a complaint with the Regional Police Commander. Your lawyer can also be consulted if you can sue the police officers in their personal capacity.