Q&A – 3 February 2014

Areeing on bill of costs

I have won a civil case against a reputable company and after the judgment we agreed that the company will pay me costs of the suit amounting to Tshs 70 million which was reduced to in writing.
When I went to court for filing our agreement, the court clerk refused and told me that parties cannot agree on the costs but it is the court which should conduct taxation to determine fair costs incurred by the winning party. Is this true under the law? Please advice.
PR, Dar

We differ with the court clerk advice. The Advocates’ Remuneration and Taxation of costs Rules allows, instead of filing Bill of costs for taxation, file an agreement between the parties indicating costs incurred by the winning party. The parties will then request the Taxing Master by letter to record the Agreement upon payment of a Court fee. The Agreement when recorded shall have the same force and effect as a certificate of Taxation of a Taxing Master. However, if the Taxing Master considers the amount so agreed upon to be exorbitant, he may direct the said costs to be taxed according to the above said Rules.

We therefore advice you to consult your Attorneys or the Registrar of the High Court /Magistrate In charge of the respective court for further guidance.

Threatened with economic sabotage

I am a supplier of some key drugs and machines to some government hospitals and for the past one year have not been paid. The amount that is owed to me is now running in the millions of dollars and I am getting empty promises. I gave the relevant authority an ultimatum only to be asked to go see some senior person who first told me that I would be paid, and after I responded that I do not believe this and that I would cut supplies and sue, he threatened me that if I did so, I would be charged under the Economic and Organised Crime Control Act. In short he said that under the laws of Tanzania, particularly this act, since these products are vital for hospitals I have no choice but to continue supplying. I was also told that this offence is not bailable? What do I do?
WP, Dar

This is the first time we are hearing of such an approach to a contractual obligation to pay. If what the official was telling you is true, then any supplier of vital equipment for the economy, be it power, water, security can never sue and can never demand. Nobody would then be willing to supply to the government of Tanzania and it would defy basic principles of contract law.

To answer your question, assuming of course you have given the right facts, there is nothing that stops you from cutting supplies, demanding payment, suing and/or proceeding as per the contract of supply. Economic sabotage is defined in the act and includes acts done or committed without lawful excuses and for a purpose prejudicial to the economic safety or interests of Tanzania or is likely to damage, hinder or interfere with a necessary service or its operation.

From the above definition, you cannot be charged under this act as you are lawfully demanding your money under a contract you entered into to supply. If you were unlawfully doing so and for a purpose prejudicial to the economic safety or interests of Tanzania, then this act might have applied.

As for bail, please be advised that this is a bailable offence. However bail shall not be granted in any of the following circumstances:(a)it appears to it that the accused person has previously been sentenced to imprisonment for a term exceeding three years; (b) it appears to it that the accused person has previously been granted bail by a court and failed to comply with the conditions of the bail or absconded; (c) the accused person is charged with an economic offence alleged to have been committed while he was released on bail by a court of law; (d) it appears to the court that it is necessary that the accused person be kept in custody for his own protection or safety; (e) the offence for which the person is charged involves property whose value exceeds ten million shillings, unless that person pays cash deposit equivalent to half the value of the property, and the rest is secured by execution of a bond; (f)if he is charged with an offence under the Dangerous Drugs Act.

Toothpaste with flies

I bought a toothpaste from a supermarket in Dar and when brushing my teeth found that there was a fly in the toothpaste. I was quite shocked and decided to remove all the toothpaste from the packing only to find more flies and other particles in the toothpaste. I have become paranoid ever since and do not trust packed products no matter how beautifully designed they are. What can I do?
GJ, Dar

In case you believed that “beautifully packed products” cannot be tainted with flies and other particles, than you are greatly mistaken. There are many cases where some of the top brands have had major goof ups- bottled drinks having cockroaches, lipstick having pig hair, cars having wrong brake pads, aircraft with malfunctioned engines, sofas with dead rats inside the lining, drugs wrongly packed, cd players where the rotating cd slips out, computers that burn the users thighs, to mention a few. You must remember that it is your fellow humans packing and manufacturing and much as we would not want this to happen, such occurrences do happen.

The fact that you bought the toothpaste from a supermarket does not mean that you cannot sue the manufacturer wherever he is. In fact you can also sue the supermarket, the wholesaler who supplied the supermarket and the importer if different from the wholesaler. Your lawyer can guide you further as you will need concrete evidence to prove this- mere assertions will not take you far.