Q&A – 1 November 2010
Can Court draft my agreement?
I hear of all these problems where people are fighting in Court trying to interpret contracts. Why do we have to go to Court when there is a problem? Can we not get a Court to draft a contract that will then not need to go to Court? Is this drafting not a money making machine for you lawyers?
FG, Dar
You ideas are good on paper but make no practical sense. A Court is manned by a human called a Judge, who is also trained in law. It is not manned by God. The Judge’s pen is not God’s pen- there is no magic that the Court can do that law firms cannot. One cannot go to Court to get agreements drafted because Court’s are there to interpret the law. What would happen if a Court drafted your agreement and there was a dispute? Who would adjudicate the matter? Just because an agreement is drafted in Court doesn’t mean that there will be no dispute.
World over there is an outcry that Court’s are slow in their proceedings, so you can imagine the efficiencies of Court’s if it was mandatory for all agreements to be drafted by Judges.
Drafting a contract involves a lot of skill; lawyers try and cover most eventualities yet there are certain events that lawyers might not, at the time of drafting, be able to contemplate.
Your comment on drafting being a money making machine for lawyers is unfounded and uncalled for in the circumstances. Most problems persist because people do not timely consult their attorneys. The English proverb- a stitch in time saves nine- sums this all up.
Attending police Station during pendency of case
In July 2010 I was arrested by police on allegation that I was involved in house breaking. I was accordingly charged in a District Court and was bailed. During the pendency of the case, I was summoned again to the police station for further interrogation. Is this procedurally correct? How can I stop this?
BM, Moshi
Unless you were called to attend the police station for a different incident, which does not seem to be the case here, then it is likely that the act of summoning you to the police, while the case is pending in Court, was unlawful. The police move is suspicious because once an accused person is taken to Court, he is subject only to the jurisdiction of the Court; the reserve powers of police to summon or arrest persons under the law are meant to deal with criminals before cases are taken to Court. Police can only, in a situation like yours, deal with accused person with leave of the Court, which is rarely granted. That being the case, we advise you to report the incident to the Court for necessary orders. Alternatively, you can directly complain to the Director of Public Prosecutions for his intervention.
Proceedings in Camera
I am a 21 year old girl studying at a Dar es Salaam secondary school. Our neighbour’s daughter, who is also my friend and classmate, was raped one night when she had gone out to a kiosk to buy water. Fortunately the suspect was arrested and charged in the District Court. We used to attend Court every time the case was called. However, when witnesses started to testify, we were ordered by the Court to leave the Court room. Is this fair? We want to observe the Court’s proceedings from the beginning to the end to make sure justice is done. Is it not our right to observe Court’s proceedings? Don’t you think that the magistrate plans to side with the accused and hence wants to conduct the proceedings in a secretive manner?
CC, Morogoro
As a general law all persons have the right to be present in Court provided there is sufficient accommodation and there is no disturbance of the proceedings. It is usual however, where cases involving indecent details are called on, to direct females and boys to leave the Court but if an adult woman should insist on being present at the hearing of the case, there is probably no power to prevent her from being present. It is expressly provided under our laws, Sexual Offences Special Provision Act and the Criminal Procedure Act that in rape cases like this, or when a person who in the opinion of the Court is under 16 years is called as witness in any proceedings in relation to an offence against or any conduct contrary to decency or morality, the Court may order the exclusion of all persons not being members /officers of the court or parties or their counsel. However this does not preclude witnesses to be called to testify. Kindly be informed that the course taken by the court is normal in cases like this one and therefore nothing to worry about, unless you have concrete evidence to the contrary. Moreover, if you are on the list of witnesses, you may be called to testify.
Who can witness my Will
I have prepared a Will and need a witness to sign it. Who can be a witness? Does it have to be a judge or lawyer or can it be anyone? I dzo not want my Will to be challenged.
BB, Dar
First and foremost, you require two witnesses and not one. It is not necessary that a Judge or lawyer witness your Will. It is generally advised that a Will be witnessed by persons you know and are trustworthy and if called upon, will be able to testify that the Will had been signed by you in their presence.
A spouse, beneficiary, spouse of a beneficiary, blind person, minor and a person of unsound mind may not witness a Will. The witnesses should understand the nature and effect of what they are doing.
You must take note that both witnesses must be in the same room at the same time as you when they sign. Should one of your witnesses predecease you, we would recommend that you immediately draw a new Will and get another witness. The law requires witnesses’ verification at the time of applying for a probate and a dead witness may complicate and delay the process.