Q&A – 9 September 2013
Body search by TRA officers
In a certain raid that TRA officers conducted on our office premises, a male TRA officer actually put his hands into my skirt pocket saying I was hiding a back up drive of my computer. The officer actually also tried to physically search me. Can they do that?
OI, Dar
This is a very serious allegation against the TRA which itself has a service charter that all its officers must follow. One of the obligations clearly stated in the charter is that TRA officers have an obligation to show respect when they are performing their duties of assessing and auditing taxpayers’ records. They are also supposed to show respect and dignity when performing their duties.
We suggest you write to the Commissioner General about this serious issue and also contact your lawyers to consider suing the individual officer who searched you as at the time of conducting this illegal search he was not acting in his official duty.
TRA is committed under its charter to behave fairly and this incident is a serious breach of your privacy and something that the Commissioner General will seriously take up with his officers.
Courts wasting paper
What is the difference between striking out and dismissing an appeal? Also in an appeal before the Court of Appeal of Tanzania, our appeal was struck out because the decree of the High Court was not attached to the records of appeal. Couldn’t the justices of appeal just ask the High Court Registrar at Dar es Salaam who is less than 500 metres away from the Court of Appeal to submit it so that the appeal can proceed as opposed to being struck out and being filed again? Is it not a waste of paper to strike out the appeal, where the justices of appeal know that the appeal would be refiled the very next day? Is such a waste of paper not in contravention of the environmental laws of the country. It seems with technicalities, the Court of Appeal is increasing the number of trees that would be cut down in Tanzania and adding to the forest degradation of our beautiful country? Please advice.
VM, Dar
By definition, striking out an appeal implies that there was no proper appeal capable of being disposed of meaning that it can be refiled. On the other hand, an order for dismissal implies that, a competent appeal has been disposed of and which in most cases cannot be refiled. The right of appeal is founded in statute and that a party who seeks to avail him or herself of that right must strictly comply with the conditions prescribed by the statute.
The Court of Appeal of Tanzania is guided by its Rules of 2009. The said rules mandatorily require among other things, to attach the High Court Decree in the record of appeal. It has been held by the Court of Appeal on a number of occasions, that a failure to extract and lodge to the Court a copy of the relevant High Court Decree is not a mere procedural or technical defect, but goes to jurisdiction and crux of the appeal and hence renders the appeal incompetent.
Many Court’s around the world have reduced the number of procedural and technical issues so that the substantive issues in appeals can be heard- in Tanzania and as many practicing advocates believe, such procedural issues can sometimes be a stumbling block to the administration of justice with more technical and procedure based rulings being issued by the Court of Appeal than those on substantive issues. With the strictness on procedure, this has also increased the number of preliminary objections that are raised at the Court of Appeal further adding to the delay in the delivery of substantive justice.
As you have correctly said, if the appeal is struck out, you are at liberty to the file but subject to the law of limitation. From the above explanations, the distance between the Court of Appeal and the High Court or the alleged wastage of paper doesn’t help with the current law and in any case, will not change the requirement of the statute/rules.
However, we must add that from a practical view point your argument is quite attractive and it would likely assist in expediting the dispensation of justice based on the substantive law/issues, in addition to reducing the costs that parties and the Court of Appeal itself would incur when hearing appeals. Your lawyers can guide you further.
Defendant dead, judgment not delivered
In the last few years my uncle filed a civil suit in the District Court against an individual Defendant. The hearing of the case was concluded on both sides and he is waiting for the Court judgment. However, we have recently been informed that the Defendant has died and are worried with this information. My uncle would like to know the fate of his case if he wins. Can we instead sue his wife. Please advice.
NG, Mara
Since the hearing of the case was concluded, the law is very clear in that whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncement of the judgment. The judgment will be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place. Therefore, should your uncle win the case, we advice you to consult your Attorneys for further legal action including but not limited to execution of the intended decree.
As for suing his wife, if you had not done this at the initial stages because there was no cause of action against her, it is unlikely you can do that now.