Q&A – 20 December 2010

Technicalities in Court

I had made an application at the High Court in Iringa for certain reliefs based on merit. It was a strong application to block a bank from selling my property for non payment of a loan. To my utmost disgust the application was not even heard and the application was cancelled on a mere technicality. Instead of citing a certain section 68 of a law, my attorney had quoted another section which the Judge said was not good enough. For a mere number error, we were thrown out of Court. What kind of justice is this? Why would a Court just throw us out on these minor matters without addressing the major issue at hand?
GL, Iringa

It is now well settled that non citation or wrong citation of an enabling provision of the law renders the application incompetent to be heard, and this seems to be the case in your application for injunctive relief against the bank. Some counsel have argued that such matters do not go to the root of the matter, as you claim, but the Court of Appeal of Tanzania has made it very clear in various cases that the citing of the correct provision of the law is a fundamental matter which goes to the root of the matter and if it is based on wrong legal foundation is bound to collapse.

The constitution of Tanzania in article 107 supports your view that mere technicalities should not affect the Court’s from looking at the substantive issue, which in your case was not addressed at all. However in response to this the Court of Appeal has said that it is the same rules and procedures that are used to facilitate the administration of justice and these are not mere technicalities.
We suggest you contact your attorney to consider refilling the application for injunctive relief in Court.

Chicken stinks, life miserable

I am a retired man living alone in a two bedroom flat in Dar. I have been living peacefully in my residence for the past 30 years until a few months back when a restaurant has opened right next to my house that grills chicken at night. Whilst I don’t mind the mess they create outside with all the parked cars, the smell of the chicken makes my entire house smell of the masala they use. It has made my life miserable. When I contacted the city authorities, they came, ate the same chicken with the owner and left. I wrote letters to everyone I could think of including the mayor, but todate no action has been taken. I see big shots including ministers coming to enjoy the chicken, which I admit is very good and fresh, but the smell of it in my house every day is causing me depression. What should I do? I don’t have a contract with the owner of the chicken place and am told I can’t sue him?
PP, Dar
Just because Ministers come to eat chicken doesn’t make a wrong a right. In any case we are sure neither the Ministers nor the other customers of the chicken place know of the mess it is causing for you. In a very famous English case it was said by one of the Lordships that every man….has a natural right to enjoy the air pure and free from noxious smells or vapours, and anyone who sends into his neighbours land that which makes the air there impure, is guilty of nuisance.

The act of the chicken place owner is actionable under tortious liability and you need not have a contract with him to sue him. You have a very solid case and should manage to get injunctive relief based on the making of appropriate prayers in Court. You need not think twice if this is causing you so much trouble- contact your attorney.

21 days to file defence

I was presented with a summons to appear in Court. However I did not file my written statement of defence within 21 days- this is as per what the Court clerk informs me. What should I do? I must also add that I have been very unfairly sued as I should be the one suing. How do I do initiate my suit whilst I am already the defendant?
MM, Dar

There is a difference between a summons to appear and a summons to file your written statement of defence. It seems you were served upon a summons to appear. The law says that when a summons to appear is issued and if you are required by the Court, you shall at or before the first hearing or within such time as the Court may permit, present a defence of your case. We are unsure as to what the summons said but if it only was for your appearance, and if no other order as to filing of a defence has been made, then you may not be time barred yet.

If the summons was for filing a written statement of defence, the law is very clear in that you shall file your defence within 21 days of being served with the summons. You count the twenty ones days from the next day of having received the summons and if the 21st day falls on a weekend, the Monday is deemed to be within the 21 days. If the 21st day is on a public holiday, the next working day is deemed to be the 21st day.

You need to understand what kind of summons you received and get an attorney to advice you. If you are time barred, you will be required to make an application in Court to file your defence citing reasons for the delayAs for having a claim against the same person who has sued you, this is possible within this same law suit by way of a counterclaim. It is imperative that you move rapidly on this issue without wasting any more time.