Q&A – 30 August 2010
New evidence in Court of appeal
I have been in litigation in the High Court for the past eight years. The case has now been concluded and I have lodged an appeal. There is one particular key piece of evidence that was not produced at the High Court that I have requested my attorney to present. He has however declined saying the Court of Appeal disallows such production of additional evidence. Is this true?
GM, Dar
The Civil Procedure Code Cap 33 (RE 2002) reads as follows: ‘The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Court. But if the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Court may allow such evidence or document to be produced, or witness to be examined.”
It is not entirely true that you are disallowed to produce additional evidence. Unfortunately we are unable to fully guide you as we are unsure what this evidence is and why you did not produce it at the trial Court. Your attorney should make an appropriate decision.
Courts misbehaving
I am a banker with 25 years experience having worked in Tanzania for the past year and a half. In my Tanzanian experience I have noted that Tanzanian Court’s are lenient towards the borrowers who have defaulted. The Court does not take cognizance of the fact that the borrower has taken money from the bank. Lawyers in Tanzania plead on behalf of the borrower as if the defaulter has not taken any funds from the bank. How does one prosecute a case in Tanzania effectively? What other remedies does a banker have?
MM, Dar
There is no shortage of defaulters in this market- your observation is correct. However we must draw your attention that in the eleven years of the existence of the High Court Commercial Division, banks have been highly successful in recovery cases. It is a Court of choice for bankers and the Court has delivered some great results.
However bankers are also at times to be blamed. For example in third party mortgages, many banks in the past years have been exposed because they have forgotten to take spousal consent, allowing the property, mostly matrimonial property to be mortgaged without such a consent. Banks have also failed to conduct due diligence and many disburse funds prior to perfection of securities.
We do not believe that the Court’s are to be blamed in isolation. Bankers tend to pin the blame on Court’s perhaps to impress their board of directors.
Turning to your question on other remedies that are available; please be informed that the law is very strict for borrowers. The law now allows the bank to sell the mortgaged property giving sixty days notice and without going to Court.
You must appreciate that no law can substitute for banks conducting their due diligence before disbursement. The market here is challenging but has great potential. We hope your bank is not one of the banks that has engaged itself in loans disbursements prior to perfection of securities- the banks defend themselves by claiming that the customer exerted a lot of pressure and hence the disbursement!
Employment for person with disability
I have been disabled since childhood having fallen victim to polio. I was brought up in Kigoma and moved to Moshi before moving to Dar. In all my life, there has been no facility for the disabled. I would have to be carried physically as neither the schools nor offices in Kigoma or Moshi had any access points for persons with disabilities. Dar es Salaam with all these new buildings is no better.
Is there no law that forces these developers to build facilities for persons with disabilities? My second question is on the job discrimination against people like myself. We are underpaid, mistreated and many a times unemployed. Who comes to our protection?
JK, Dar
You have raised some very pertinent questions. Unfortunately the older buildings still do not have easy access points for persons with disabilities.
A new law has been passed by parliament- Persons with Disabilities Act 2010. This has addressed some of your concerns.
The law is very clear in that all persons with disabilities shall be entitled to a barrier free and disability friendly environment to enable them to have access to public premises and facilities for public use, roads, communications and other social amenities to assist and promote their mobility.
The law further adds that architects, engineers and other persons who are involved in design and construction of the physical environment shall observe and comply with accesibility requirements to ensure that all new buildings, roads, playgrounds, transport facilities and renovation of the old ones, conforms to designs aimed at creating access for person with disabilities. Under the law it is an offence for a person with disabilities to be denied access to such public buildings.
As for the discrimination towards employment of a person with disabilities, the law states that this is illegal and an offence which is punishable by a fine, or imprisonment, or both. In short, any employer or potential employer who discriminates against a person because of his disability, may end up in prison.