Q&A – 29 April 2013

Anesthetist made fun of me

I had been having serious issues with my stomach and upon arrival at the hospital, the doctor told me I would immediately need surgery of the abdomen and that I would be put to sleep during surgery. I was prepared for theatre and taken into the surgery room. The anesthetist asked me my name, then asked me my second name, then asked me my middle name- he seemed more interested in me then in doing the surgery. After a while, he repeated the same and asked me my names again. I am of Asian origin and my names are not easy to pronounce. Then he made a remark that I should not worry I will not die. This led me to be very anxious during the surgery and that anxiety still exists in me. Weren’t the anesthetists remarks defamatory? Can I sue him for making fun of me?
UO, Dar

If we have understood your question properly you want to sue your anesthetist for making fun at you. You also wish to sue him for asking your name several times and according to you both these led to anxiety during surgery and after.

We are not sure how you could have been anxious during the surgery as you were put to sleep. It also seems to us that the anesthetist was doing his job. Normal protocol dictates that questions are asked to the patient to ensure that it is the right patient being operated on. For you to be asked your name a few times does not mean that the anesthetist was “interested in you”, whatever you mean by “interested in you.” As an anesthetist, he is obviously interested in the patient on the operating table. Does that give rise to a cause of action to sue him? We don’t think so. The remark that you will not die, or you will be fine, are certainly not defamatory. We believe they were meant to ease your tensions.

Unless you have not told us anything else, we don’t see how you can sue the anesthetist. However your lawyers can guide you further.

Execution of decree

I lost a case at the High Court and have filed a notice of appeal to the Court of Appeal. My lawyer says that I should not worry as the plaintiff cannot execute against me since the file is at the Court of Appeal and not before the High Court. Is that true? The amounts are very large and this makes me very uncomfortable. What should I do?
IR, Dar

The fact that you have filed a notice of appeal does not mean that you have a stay of execution. Rule 11 of the Court of Appeal Rules 2009 are clear in that (1) No sentence of death or corporal punishment shall be carried out until the time for giving notice of appeal has expired or, where notice of appeal has been given, until the appeal has been determined. (2) Subject to the provisions of sub-rule (1), the institution of an appeal, shall not operate to suspend any sentence or to stay execution, but the Court may- (a) in any criminal proceedings, where notice of appeal has been given in accordance with Rule 68, order that the appellant be released on bail or that the execution of any warrant of distress be suspended pending the determination of the appeal; and(b) in any civil proceedings, where a notice of appeal has been lodged in accordance with Rule 83, an appeal, shall not operate as a stay of execution of the decree or order appealed from except so far as the High court or tribunal may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay of execution of such decree or order. (c) where an application is made for stay of execution of an appealable decree or order before the expiration of the time allowed for appealing therefrom, the Court, may upon good cause shown, order the execution to be stayed. (d) no order for stay of execution shall be made under this rule unless the Court is satisfied- (i) that substantial loss may result to the party applying for stay of execution unless the order is made; (ii) that the application has been made without unreasonable delay; and (iii) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

From the above, you can see that the file being at Court of Appeal, or you having preferred an appeal is no bar to execution.

It is not unwise to reconsider filing for a stay of execution subject to fulfilling the conditions of a stay as above.

Forfeiture of corruption proceeds

Is there a law in Tanzania whereby corruption proceeds can be forfeited by the PCCB? What is the procedure?
TU, Dar

The answer to your question is yes. The Prevention and Combatting of Corruption Act provides in section 40 (1) that the Bureau may, in collaboration with the office of the Director of Public Prosecutions recover proceeds of corruption through confiscation to the Government. (2) Where a person is convicted of an offence of corruption under this Act, the Director of Public Prosecutions may, apply to the convicting court or to any other appropriate court not later than six months after conviction of the person for forfeiture order against any property that was obtained through corruption. (3) For the purpose of this part, “proceeds of corruption” means any property that is derived or obtained by a person from the commission of corruption offences.

It must be noted that the forfeiture is not automatic and must be sanctioned by the Court. This Act further states that should a forfeiture order be made, all such property shall vest in the United Republic.