Q&A – 1 April 2013
Golden tooth marriage
I got married to a girl whom I gave a golden tooth. To show our affection, we had one of her tooth removed and replaced it with the golden tooth. Our in laws have caused rifts between us and we have started quarreling every day. She wants a divorce and I am ready to give her one but on condition that she gives me back my golden tooth or buys it from me. How can you help?IP, Dar The tooth you gave her was likely a gift to your wife for the wedding and it became one of her personal effects and hence unlikely that you can get it back. Even if you could, this would mean extracting it from your wifes mouth as it has, by now, become part of her body. There are hundreds of foreign cases that argue whether an artificial tooth is part of your body or not, and most of these are inclined towards a tooth becoming part of your body after it has been affixed. Bearing this in mind, removal of the tooth is against public policy and we believe it is unlikely that you can get this golden tooth back. Factors like whether it is easily removeable, on what conditions you had given it to her, whether her extracted tooth is still with her (in case you win the case against her) and the like may assist your lawyer to further guide you. All in all, it seems like you have a tough case against your wife. Perhaps you can give her a discount and she can purchase it, otherwise its going to be an expensive legal battle in Court.Arbitration clause says non-appealable I entered into an agreement with a company that inserted an arbitration clause which says that the award is final, binding and non-appealable. The arbitration was conducted in Kenya and it is quite apparent from reading the award that it is against public policy and in violation of the laws of Tanzania. The agreement required our company to perform the contract in Tanzania and we succumbed to the laws of Tanzania. How can the award be executed in Tanzania if it is in non-conformity with the laws here? My lawyer says that the non appealability of the award puts our company in a bad position. Please guide.
Arbitration is meant to accelerate the ends of justice to be met. Generally awards cannot be challenged except for under the principles of natural justice and where the arbitrator(s) have misconducted themselves. Awards also cannot be executed if they are against public policy and are in contravention with the laws of the land in which they are being executed.
With the above in mind, since you claim that the award is against public policy and in contravention of the laws in Tanzania, the award can be set aside. This is also provided for under the Arbitration Act of Tanzania where section 16 explicitly states that where an arbitrator or umpire has misconducted himself or an arbitration or award has been improperly procured, the Court may set aside the award.
Section 30 of the Arbitration Act further states as follows: Conditions for enforcement of foreign awards (1) In order that a foreign award may be enforceable under this Part, it must– (a) have been made in pursuance of an agreement for arbitration which was valid under the law by which it was governed; (b) have been made by the tribunal provided for in the agreement or constituted in manner agreed upon by the parties; (c) have been made in conformity with the law governing the arbitration sufficient to enable that party to take the necessary steps to have the award annulled by the competent tribunal.
We must point out that you have not stated in your question what you might have done wrong for the matter to be referred to arbitration. procedure;(d) have become final in the country in which it was made; and (e) have been in respect of a matter which may lawfully be referred to arbitration under the law of Tanzania, and its enforcement must not be contrary to the public policy or the law of Tanzania. (2) Subject to the provisions of this subsection, a foreign award shall not be enforceable under this Part if the court is satisfied that–
(a) the award has been annulled in the country in which it was made; or
(b) the party against whom it is sought to enforce the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case or was under some legal incapacity and was not properly represented; or
(c) the award does not deal with all the questions referred or contains decisions on matters beyond the scope of the agreement for arbitration:
Provided that if the award does not deal with all the questions referred the court may, if it thinks fit, either postpone the enforcement of the award or order its enforcement subject to the giving of such security by the person seeking to enforce it as the court may think fit.
(3) If a party seeking to resist the enforcement of a foreign award proves that there is any ground other than the non-existence of the conditions specified in paragraphs (a), (b) and (c) of subsection (1) of this section, or the existence of the conditions specified in paragraphs (b) and (c) of subsection (2) of this section entitling him to contest the validity of the award the court may, if it thinks fit, either refuse to enforce the award or adjourn the hearing until after the expiration of such period as appears to the court to be reasonably Before you overconfidently embark on our opinion, you should get your lawyer to guide you further.