Q&A – 25 July 2011

Armed robbery conviction for retrial

In 2006 three of us were jointly charged with the offence of armed robbery. Two years later our trial commenced which ended in our conviction to jail for a term of 30 years. Aggrieved with the findings of the Court, we appealed to the High Court against the judgment of the trial magistrate which was conceded by the Director of Public Prosecution (DPP) on the ground that the prosecutor who conducted the case at the trial Court was unqualified. The Judge, instead of setting us free, accepted the State Attorney’s prayer for re trial and with no consideration of the time we have been in jail. Is the Judge’s order for retrial fair? Can we appeal against this order and what are the chances of success?
KO, Dar

The Judge’s order for re trial is appealable but the chances of you succeeding are extremely remote. It is an established principle of law that the Court should consider a number of factors including time the accused has been in jail before it orders for re trial. In your case, the Court cannot permit an accused person facing serious offence like the one you are facing to enjoy his/her freedom simply because of a technicality during trial.

Merely because you have been in custody does not mean that you should be released. Your detention in custody was by operation of law since the offence of armed robbery is not bailable. And even if the trial Court proceedings were not defective, the time you have been in custody before conviction could not be taken into account in determining your sentence because armed robbery being a scheduled offence under the Minimum Sentence Act, the term of thirty years imprisonment is mandatory. The Court cannot reduce it for whatsoever reason.

Will of an illiterate person

My father passed away few months ago. He was uneducated but a very successful businessman who also hired very educated people to think and plan for him. He left a number of properties including houses in Dar es Salaam and Arusha and upon his demise, our uncle came forward with a Will that all the properties were left to me and my brother. The other three children from the first wife of my late father came forward and they now want to challenge the Will on the ground that the will was not properly signed. The Will is signed by two men who were the best employees of my father. Can this Will be successfully challenged?
FI, Dar

For an uneducated person, the general rule is that a Will by such a person needs to be witnessed in the presence of two clan members (his relatives) and two non clan members. However we are unsure how uneducated your father was. Could he read and write? What kinds of documents did he execute during his life time? All these amongst others are factors that can be considered in deciding the level of his education. If he is held to be uneducated, then the non signing by two additional people may become an issue for you. We suggest that you contact your attorneys to discuss this further.

Compulsion of wife to return

I have not been very good to my wife. Three years into our marriage I started beating her, had affairs with other women, came home very late and drank a lot. My wife left the house with our children and does not want to come back to our matrimonial home. The elders in my family want me to get a Court order to compel her to return. What is the procedure for this and how fast can I get it?
RT, Dar

Put yourself into the shoes of your poor wife- would you return to this matrimonial home? Unlikely. Whilst we are no marriage counselors, any normal person would take the step your wife took. Not only have you caused misery for her, but you have engaged in a crime by beating her. Beating your wife is actionable and if she pursues you, you may end up in jail. Gone are the days when you could merely get away with such hypocritical and primitive action.

We are not sure what the elders in your family mean by getting a court order to compel your wife to come back. Under our constitution, she is granted her freedom and no Court can force upon her to return to this unhappy marriage. You need to change your behavior and perhaps seek counseling. If you can translate the honesty with which you have written to us into honest behavior change, you might succeed in voluntarily getting her back. Otherwise we don’t see how you can force her to return.

Plaint without damages

I filed a Plaint in Court and won the case. However a serious prayer for certain damages was in the plaint but was quite obvious from the proceedings that it should be granted. Did the Judged err in law by not granting such obvious damages?
DL, Mwanza

In Tanzania we have adopted the adversarial system where the plaintiff is said to be dominus litis, the master of the suit. The plaintiff decides whom to sue, on what matter and when. In such an adversarial system the plaintiff must state in clear language what remedy or order he or she seeks from the Court. That seems to be the case here. You have not informed us the exact nature of the damages or what the suit was about, but generally the plaintiff does not get what he or she did not ask for. If you think the damages were so obvious and the Judges overlooked it, why did you not ask for the damages in the plaint itself. Since we do not have all the facts, we suggest you contact your attorney.