Q&A – 17 September 2018

Suing parents for poverty

My parents had me when they knew or ought to know that they are poor and cannot provide me with the luxuries of life that I am constitutionally entitled to. I have been reading about the law and want to take them to task by suing them both so that other Tanzanians are scared of having children when they don’t have money. How do you suggest I take this forward? Also, do I have the choice of parents in that can I switch to richer parents?
TR, Dar

First and foremost, the luxuries of life are not provided by our or any other constitution that we are aware of. You are living in dreamland, not even Disneyland, and might need to do some additional research before concluding the way you have.

We don’t see any cause of action that arises from the facts you have provided. Most parents do, indeed, struggle to bring up their children, and unless there is something you have not disclosed to us, we believe you have no chance of succeeding in this case.

Unsuccessfully suing your parents will not scare Tanzanians from having children- we are a proud nation and will remain so.

On switching to parents, we are unfortunately not sure what you mean. Do you mean if you can switch to richer parents so that you have the luxuries that you want? You sound like you are willing to be displayed at a supermarket shelf waiting for a rich couple to take you with them. Apart from this being impossible, it is illegal. We suggest you work on enriching yourself by educating yourself. A very notable leader once said that ‘struggle is the meaning of life, defeat or victory is in the hands of God.’

No punctuation in legal drafting

I am a proponent of difficult and without punctuation legal drafting. The older documents really make a lawyer valued. With the current ease in drafting I believe the profession has gone backwards. I wish to embark on a campaign of change and request your opinion.
PO, Mwanza

Everyone has their views on this. However, with punctuation and simple plain English, it has made the law simpler to understand. After all, what is the use of a document if a normal person cannot understand it.

There was no punctuation in the olden times because people used to write with their hands, and having punctuation could result in someone inserting commas to change the meaning. This chance of potential forgery resulted in no punctuation at all. However with technology, this has changed.

The legal profession has changed drastically over the past decades and we believe it is in the right direction and you need not embark on a campaign, which, in any case might fail.

Take an example of the following without punctuation: This man said the Judge is a fool. There are two variations to this. The first which wont please a judge is ‘This man said the Judge, is a fool! The second variation would be ‘This man, said the Judge, is a fool.’ By changing the position of the comma, you would know whether the judge or the man is the fool!

One Court says north, other says south

There were two cases of different parties going on in two different Courts. The issues were more or less similar. One Court ruled exactly opposite of the other. How can the Courts do such a serious blunder? I have reported this to the Chief Justice. Please guide further.
YU, Dar

We are sorry for your disappointment but it is not uncommon for such an occurrence in many Court systems around the World, Tanzania being one of them. That is the reason there is normally one Appellate Court in the country and the parties can appeal to this Court where one judgment will ultimately be issued.

There is a principle of stare decisis by which judges are obliged to respect the precedent established by prior decisions. Generally speaking, higher Courts do not have direct oversight over the lower Court of record, in that they normally do not reach out on their own initiative at any time to overrule judgments of the lower Courts. Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher Courts. If a judge acts against precedent and the case is not appealed, the decision will likely stand.

A lower Court may not rule against a binding precedent, even if it feels that it is unjust; it may only express the hope that a higher Court or the legislature will reform the rule in question. If the Court believes that developments or trends in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, it may either hold that the precedent is inconsistent with subsequent authority, or that it should be distinguished by some material difference between the facts of the cases. If that judgment goes to appeal, the appellate Court will have the opportunity to review both the precedent and the case under appeal, perhaps overruling the previous case law by setting a new precedent of higher authority.

Reporting this to the Chief Justice might not help as that is an administrative action you have taken. The matter must be appealed. Your lawyers can guide you further.

Case of 1996 still in Court

My case is a 1996 case and is still in Court. It has been 18 years since I lodged it. This is gross delay by the system. What should I do?
IP, Dar

It is true that there is a huge case backlog in Courts in Tanzania. However it is not entirely the fault of the judiciary as some tend to believe. Cases get delayed because of lack of witnesses, non-seriousness on the part of the plaintiff and defendants including non availability of the counsel representing the two parties. It is quite unfortunate that you have been in Court for such a long time.

We suggest you write to the Judge in Charge about this and bring this to his or her attention. The judiciary had embarked on clearing old cases and there is a movement in the right direction.