Q&A -11 October 2010

Failure to inquire marital status

In December 2008 I was sued in the Primary Court for compensation for adultery although I believe I managed to adduce strong evidence in Court, that I did not know if the woman with whom I was alleged to commit adultery was the complainant’s lawful wife. In fact, before I started having the relationship, the lady had told me she was not married which I believed to be true. I doubt if the trial magistrate was fair to decide the way he did. This was clearly manifested by the Magistrate’s conduct of the case. During trial the Magistrate did not record my evidence and at times he interrupted my testimony. Is there a way I can challenge the findings of the trial Court considering the fact that after delivering the judgment I was ordered to pay Tshs 150,000 to the claimant which I did immediately.
HB, Kahama

The facts of your case tend to accuse the trial Magistrate as being partial. Without going through the records of the Court, we are unable to comment on whether your accusations against the magistrate are tenable. However, we wish to inform you that it has always been difficult to impeach the records of the Court especially where a complainant had the right and opportunity to ask the trial magistrate or judge to read evidence over to him/her and decides not to exercise his/her rights. It appears that you did not opt to exercise this right.

As to the strength of your evidence, again we fail to comment because we do not know the strength of the complainants testimony. This being a civil matter, evidence as a matter of law, is weighed on a balance of probabilities. It seems that your opponent’s evidence outweighed yours. We advice you to proceed with the appeal process. Guidance of a lawyer is recommended.

Loan be paid on demand

I am in the final stages of borrowing Usd 2M from a large bank in Tanzania. In one of the documents, it clearly states that if called upon, I shall have to pay the loan on demand. I spoke to the bank and they said this is standard wording and that everyone in town has signed such a document, even those who have borrowed tens of millions, and that I, being a small ‘fish’ cannot now start getting the bank to redraft its documents. Is this normal?
PR, Dar

This term loan that you are negotiating sounds like a demand loan! Agreements to pay in bank security documents are usually to pay ‘on demand’. This has the advantage for the banks that time does not run under the limitation act until demand is made. However demands can only be made in respect of moneys that are due. Otherwise term loans would not make sense as most of the investment is long term.

The correct form of wording that you should insist on is ‘demand of all moneys when the same shall become due.’

The bank’s comments that others have signed such documents has no legs to stand on. Equally worrying is the ‘big fish small fish’ theorem that the bank has put forward. All loan documents have to be read, understood, negotiated, renegotiated and only then signed and sealed by you. Your desire to kick start your project with the borrowed funds should not induce you to sign anything that comes your way- you may come to regret this in the future.

Arrested in Bar after Midnight

Just after midnight in September last year my two co-tenants and I were arrested by the police at a bar located along a street in Mkuranga District alleging that it was an offence to be found in a bar at that particular time. They did not release us until the following day when we were bailed out by our relatives. Nevertheless, police have proceeded to charge us with the offence in the Primary Court. One police officer, a relative of the co-accused, has been urging us to plead guilty alleging that the offence is punishable for a minimal fine. However, I disagreed with the police’s advise for we were arrested at the place around our home where we were drinking peacefully. Is the police not misleading us; for years I have been drinking at such a time without any problem? Please advice us.
KL, Mkuranga

The Intoxicating Liquors Act prohibits any person, be it the owner of the bar, barmaid or any person to remain in the bar and or/consume beer after 11pm from Mondays to Fridays or after midnight on Saturdays, Sundays and public holidays.

The facts of your case constitute all necessary ingredients of the offence under the Act and that you have been drinking beyond such time for years without any problem is not an absolute defence. As you may note today, people do still consume or sell alcohol beyond the stipulated times- this is illegal under the law. People should not take cover of our authorities’ failure to discharge their duties as an excuse to break the law. Much as we would like to side with you, we subscribe to the advice of the police officer.

Gambling ‘karata tatu’

A police post refused to register and work on my complaint against a player of a game popularly called “Karata tatu” who fraudulently took my Tshs 10,000 during a game. The police refused to take action even after I insisted that my offender was still at the play site, alleging that I lost the money out of my sheer foolishness. Was the police’s response acceptable? Is this game legal?
MG, Morogoro

You were probably playing the game at an unlicenced location making this type of gaming illegal. The police should have taken action against the ‘offender’ but they could have also taken action against you. Both you and the offender are lucky you got away with this as both of you should have been arrested. Sometimes people who go to the police to complain get arrested themselves- the police have powers to do that. Just by merely being the first to report to the police does not make you any less guilty.