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Q&A – 6 November 2017

Time already spent in prison

On a manslaughter charge where my uncle was sentenced to 12 years, he had already spent 5 years before he was convicted. The Judge did not seem to have taken that into account. Should the years already spent in remand prison not be deducted from the 12 years? The Judge is dead and hence we cannot get this clarified.
MB, Dar

There is a similar case of an individual who was sentenced to 15 years in jail, whilst he had already spent 6 to 7 years in remand. The Court of Appeal had ruled that the years spent in remand prison must be deducted from the overall sentence. Infact, if our memory serves us correctly, the Court of Appeal in that case also reduced the sentence from 15 to 9 years after considering the fact that the accused had pleaded guilty to manslaughter including other mitigating factors. The judge need not be alive for the same facts to apply in your uncle’s case. You might be time barred to appeal, but you might succeed in filing an application based on illegality of the sentencing decision, which application might be successful and which will then allow you to appeal. Your lawyer can guide you further.

Arrested for forwarded whatsapp

A friend of mine, who merely forwarded a whatsapp message that he had received, was arrested and is in remand prison. Apart from this being non sensical, it is clear that he is framed as the original person who wrote has not been touched. What should I do?
JE, Moshi

The Cyber Crimes Act is very strict when it comes to this. Section 16, which some say curtails freedom but it is good law as we speak today, states the following: Any person who publishes information or data presented in a picture, text, symbol or any other form in a computer system knowing that such information or data is false, deceptive, misleading or inaccurate, and with intent to defame, threaten, abuse, insult, or otherwise deceive or mislead the public or counselling commission of an offence, commits an offence, and shall on conviction be liable to a fine of not less than five million shillings or to imprisonment for a term of not less than three years or to both.

Hence whether you are the originator or only forwarding, you can still be charged as whatsapp under the wide definition of computer system is covered under section 16 above. As for the person who is not yet arrested, your friend can inform the police of the situation in writing and appropriate action should hopefully be taken.

Res judicata in law

I am a law student at the University and find it hard to fully understand all the angles to res judicata as a defence. I can think of situations that seem like res judicata but are not really, but the professor says they are. How can you assist make it simpler?
PP, Dar

Res judicata is a Latin term for a matter already judged. We have come across a very good English judgment, that would be persuasive in Tanzania, and which was cited in a Tanzania proceeding. In Virgin Atlantic Airways Ltd v Zodiac Seats UK this is what was said, and which we hope will clear all your different ‘situations’:

“Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle. The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v Boot [1928]. Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given on it, and the claimant’s sole right as being a right on the judgment. Although this produces the same effect as the second principle, it is in reality a substantive rule about the legal effect of an English judgment, which is regarded as “of a higher nature” and therefore as superseding the underlying cause of action: see King v Hoare (1844). At common law, it did not apply to foreign judgments, although every other principle of res judicata does. However, a corresponding rule has applied by statute to foreign judgments since 1982: see section 34 of the Civil Jurisdiction and Judgments Act 1982. Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston’s Case (1776). “Issue estoppel” was the expression devised to describe this principle by Higgins J in Hoysted v Federal Commissioner of Taxation (1921) and adopted by Diplock LJ in Thoday v Thoday [1964]. Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger.”

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