Q&A – 27 October 2014
PCCB order for documents
We are investors in Tanzania and have been asked by the Prevention and Combating of Corruption Bureau (“PCCB”) to supply them with our contracts entered in Tanzania and also appear in person before them. Is this not the police’s job and is it mandatory for our CEO to appear. These contracts are confidential and we cannot disclose them. Please guide.
The PCCB is established under the Prevention and Combating of Corruption Act which is a penal statute that deals inter alia with corruption matters. The PCCB is hence independent from the police and specially empowered to investigate corruption matters.
Section 10 of this act states that (1) An officer of the Bureau investigating an offence under this Act may-(a) order any person to attend before him for the purpose of being interviewed orally or in writing in relation to any matter which may assist investigation of the offence; (b) order any person to produce any book, document or any certified copy thereof, and any article which may assist the investigation of the offence; or (c) by written notice, require any person to furnish a statement on oath or affirmation setting out such information which may be of assistance in the investigation of the offence. (2) Subject to the direction of the Director of Public Prosecutions, the Director General may assume prosecution commenced by the police or any other law enforcement agency for an offence involving corruption. (3) Any person who, in the course of investigation of, or in any proceedings relating to an offence alleged or suspected to have been committed under this Act, knowingly- (a) makes or cause to be made a false report of the commission of an offence to any investigating officer; or (b) misleads any investigating officer, commits an offence and shall be liable on conviction to a fine of not less than one hundred thousand shillings but not more than two million shillings or to imprisonment for a term of one year or to both.
A plain reading of section 10 above clearly allows any officer of the PCCB to demand any document. This act hence overrides any confidentiality clauses in your contracts and you must release these documents to the PCCB. Should you not cooperate or not release the documents, you will be committing an offence and could face imprisonment.
Company charged criminally
Our company faced some challenges and has been criminally charged. In the first hearing we did not appear because the summons was served on our secretary and not on any senior officer. Our lawyer opined that we have not been properly served and hence no need to attend. We agreed and are now informed that the Court proceeded with our presence and has issued a guilty verdict against us. How can we be convicted when we did not attend. Please guide.
The Criminal Procedure Act provides that the service of summons on an incorporated company may be effected by serving it on the secretary, local manager or other principal officer of the company at the registered offices of such company or by registered letter addressed to the chief executive officer of the company. In the latter case service shall be deemed to have been effected when the letter would arrive in ordinary course of post.
You can see that you were properly served through your secretary and it is not necessary for a director or a principal officer to be served.
What comes to your rescue is where the Act states that at the trial of a corporation, a representative does not appear at the time appointed in and by the summons or information or such representative having appeared failed to enter any plea, the court shall order a plea of not guilty” to be entered and the trial shall proceed as though entered when the corporation had duly entered a plea of ”not guilty”.
This means that if you did not appear for the first hearing, then a plea of not guilty should have been entered. Hence if this was the first time that the case was called then your company could not have been convicted. We recommend you alert your lawyer as to the above provisions of the Criminal Procedure Act above.
Law of limitation bites
We have been in court for a certain breach of contract since 2004. It took our Courts 10 years for the judge this year to rule that he did not have jurisdiction to entertain this suit because the amount involved was above what his Court could entertain. We refiled in the Court with competent jurisdiction and the other party now says we are time barred and has raised a preliminary objection. I am really worried as it seems we are indeed time barred to proceed with our claim, as my lawyer says that to sue under contract law you must do so within six years of the happening, which has long expired.
Section 21 (1) of the Law of Limitation Act states that In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting, with due diligence, another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is incompetent to entertain it.
You can use the above provision to get out of this trap. We believe you will be successful so long as you were prosecuting your initial case with due diligence. What is due diligence will depend on a case to case basis.