Beauty deception

I recently discovered that my wife had undergone extensive cosmetic surgery before we met, significantly altering her natural appearance. We now have children, and they look nothing like the beauty I believed she possessed. I feel deceived and wonder whether I can take legal action against her for misrepresentation. Can a spouse sue for misrepresentation based on concealed cosmetic surgery, and does Tanzanian law recognise this as a ground for divorce? Please guide me.
LM, Dar es Salaam

We understand your disappointment. Under Tanzanian law, marriage is governed by the Law of Marriage Act, Cap. 29 [R.E. 2019]. The Law of Marriage does not explicitly provide grounds for divorce based on a spouse’s previous cosmetic surgery or dissatisfaction with the physical traits inherited by children. While misrepresentation may be a valid ground for rescinding a contract, its application in marriage annulment is not straightforward. The Law of Marriage Act requires that an individual petitioning for a divorce demonstrates that the marriage has broken down, and the Court shall grant a divorce if it is satisfied that the breakdown is irreparable.

We have not encountered a divorce case rooted in aesthetic cosmetic surgery. This may be because cosmetic surgery is a personal choice and does not alter an individual’s genetic makeup. Consequently, pursuing a divorce based solely on undisclosed cosmetic procedures would be legally precarious. Courts prioritise issues such as misrepresentation regarding an undisclosed inability to consummate a marriage prior to the marriage. Furthermore, since genetics are unpredictable and marital consent is not contingent on physical traits, a petition for divorce is unlikely to succeed in Tanzanian legal practice. The best course of action would be to seek counselling rather than engage in litigation to resolve any misunderstandings between you and your wife. However, you might consider exploring other legal options available under the Law of Marriage Act instead of divorce. Consult your lawyer for further guidance.

Noise causing emotional distress

Our company recently won a construction tender and began work, only for a neighbouring business to sue us, claiming that the morning noise from our workers violates their right to a peaceful environment. Surprisingly, they also demanded damages for ‘emotional distress caused by excessive hammering.’ Is it legally possible to claim compensation for emotional distress due to construction noise, and does our work constitute a violation of their rights? Please enlighten us.
FJ, Arusha

Under Tanzanian law, noise pollution is regulated by the Environmental Management (Standards for the Control of Noise and Vibrations Pollution) Regulations, 2014 (G.N. No. 32 of 2015). These regulations establish permissible noise levels and prohibit excessive vibrations that may cause discomfort or harm to individuals. Regulation 3 recognises ‘annoyance’ as a legitimate concern, defining it as a feeling of displeasure or irritation caused by noise intrusion into a person’s environment. Further, regulation 12 explicitly prohibits any person from emitting or causing excessive noise beyond these prescribed limits. However, the ability to claim compensation for emotional distress due to construction noise depends on whether the noise exceeds legally permissible levels and whether it constitutes a public nuisance and a violation of environmental standards.

Part IV of the Regulations provides the maximum permissible noise levels for construction sites based on different construction categories. If the neighbouring business wishes to challenge the noise, it must demonstrate that the noise is excessive, persistent, and beyond legally acceptable levels. If proven unlawful, the affected party may seek injunctive relief to stop the noise or damages for any proven harm. However, claims for emotional distress alone may be complex to substantiate unless supported by medical evidence or a clear violation of environmental laws, which, unfortunately, are not explicit on this matter, forcing us to rely on the law of torts. Consult your lawyer to assess whether the construction activity remains within permissible limits or warrants legal action.

Opposing party caught us off guard with a PO

Our company is involved in a commercial dispute before the High Court. During the hearing, the opposing party abruptly raised a preliminary objection without prior notice to us, challenging the Court’s jurisdiction. We were caught off guard and did not have sufficient time to respond. Is it appropriate for a Court to entertain a preliminary objection when the opposing party was not given prior notice? Shouldn’t fairness necessitate notice before such objections can be raised? Please advise us.
BN, Mbeya

A preliminary objection is a point of law that, if upheld, can dispose of a case without delving into factual issues. Case law defines a preliminary objection as a pure question of law arising clearly from pleadings. The requirements for a proper preliminary objection include: (i) it must be based solely on points of law, (ii) it should not require factual inquiry, and (iiii) it must be raised at the earliest stage of proceedings. There are several cases in which the Court has seriously condemned the practice of raising preliminary objections without filing a notice.

However, in a recent case, an interesting question emerged regarding whether a preliminary objection can be raised without a notice being filed. In this case, the Court held the view that points of law may be raised even if no prior notice was given where the point of law concerns jurisdiction. Based on this case, it follows that the respondent was not precluded from raising a preliminary objection at the hearing, even without filing the notice. Whilst raising a preliminary objection may be permissible, Courts have the discretion to entertain or decline a preliminary objection. In determining the preliminary objection, the Court must allow the disadvantaged party time to respond or challenge the objection’s validity. Furthermore, while the Court may permit an objection without notice in exceptional circumstances, the general practice encourages early disclosure to avoid procedural ambushes. Consult your lawyer for further clarity.