Q&A – 18 July 2022
Suing a soldier in his absence
I have been in a dispute with my neighbour who is an army officer. The long term misunderstanding has been on my inherited piece of land and claims that my father sold it to him before his death. Last month he mobilised building materials in that piece of land to commence construction of a house. I have initiated a case at the Ward Tribunal but I was told that my neighbour will be going for a AU mission to the Democratic Republic of Congo (DRC) very soon. A friend told me that it is not possible for a case to continue until determination in the absence of that soldier. Please advise me.
Your friend is wrong. It is possible to proceed with a suit against your neighbour army officer in his absence. The procedure for instituting a suit against a military personnel who cannot obtain leave of absence for the purpose of prosecuting or defending the suit in person is provided for in the Civil Procedure Code (CPC).
Order XXVII of the CPC clearly states that where any officer or soldier actually serving the Government in a military capacity is a party to a suit, and cannot obtain leave of absence for the purpose of prosecuting or defending the suit in person, he may authorise any person to sue or defend in his stead. The authority should be in writing and be signed by the officer or soldier in the presence of his commanding officer. However, if he is the commanding officer, the next subordinate officer should sign. It further states that where the officer or soldier is serving in military staff employment, the head or other superior officer of the officer in which he is employed, such commanding or other officer shall countersign the authority, which shall be filed in Court.
When the authority is so filed, the countersignature is sufficient proof that the authority was duly executed and that the officer or soldier by whom it was granted could not obtain leave of absence for the purpose of prosecuting or defending the suit in person. A person authorised by an absent army officer may act personally or appoint an advocate.
Thus, it is possible to continue with the suit you have initiated at the Ward Tribunal in the absence of your neighbour army officer as he can follow the process stated above. Your lawyer can advise you further on the process.
Maternity leave period when a child dies before 84 days expire
I took paid maternity leave but a month after safe delivery, my child died. I informed the HR Manager about the death of my child. A week after I reported the death of my child to the HR Manager, she called me and informed me that I am supposed to go back to work because I am no longer breast-feeding so my maternity leave cannot continue till the expiry of 84 days which is what I was granted as maternity leave period. I would like to know from you if maternity leave ceases when a child dies before the expiry of 84 days which is the statutory leave period.
Section 33(6)(a) of the Employment and Labour Relations Act [Cap.366 R.E 2019] provides 84 days of paid maternity leave days irrespective of the fact that the child dies before the expiration of the leave period. Therefore the HR Manager is not right to call you back to work simply because you are no longer breast-feeding. Maternity leave is not taken only for breast-feeding an infant. It is also granted to give the nursing mother the opportunity to recover from health problems associated with birth.
Amount of cash one is allowed to carry
My cousin was going back to his home village where he is undertaking a big construction project. He carried with him in the car TZS 100M to enable him clear various costs of the project. On the way at a police barrier he was stopped and when he was car searched, he was found in possession of the cash. Police asked him why he was carrying such huge amounts of money in the car and was arrested and interrogated for the offence of possession of property suspected to have been stolen and money laundering. Can you tell me what amount of money a person is allowed to carry with him from one point to another within the country?
There is no law governing the amount of cash money a person can move with from one point to another within the country. Section 23 (1) of the Anti-Money Laundering Act and the Anti-Money Laundering (Cross border Declaration of Currency and Bearer of Negotiable Instruments) Regulations, 2019 (GN No.268 of 2016) regulate the amount of cash a person is required to declare when he is leaving or entering the country but not when someone is travelling within the country.
Carrying a huge amount of cash is not a money laundering offence but it may raise reasonable suspicion that the money is a proceeds of crime and the bearer is avoiding the use of financial institutions because he does not want to leave traces. When a person is charged with possession of property suspected to have been unlawfully acquired, the burden of proof shifts to him to explain, within the balance of probability, how he came into possession of the property.