Q&A – 30 December 2013
One Court says north, other says south
There were two cases of different parties going on in two different Courts. The issues were more or less similar. One Court ruled exactly opposite of the other. How can the Courts do such a serious blunder? I have reported this to the Chief Justice. Please guide further.
YU, Dar
We are sorry for your disappointment but it is not uncommon for such an occurrence in many Court systems around the World, Tanzania being one of them. That is the reason there is normally one Appellate Court in the country and the parties can appeal to this Court where one judgment will ultimately be issued.
There is a principle of stare decisis by which judges are obliged to respect the precedent established by prior decisions. Generally speaking, higher Courts do not have direct oversight over the lower Court of record, in that they normally do not reach out on their own initiative at any time to overrule judgments of the lower Courts. Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher Courts. If a judge acts against precedent and the case is not appealed, the decision will likely stand.
A lower Court may not rule against a binding precedent, even if it feels that it is unjust; it may only express the hope that a higher Court or the legislature will reform the rule in question. If the Court believes that developments or trends in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, it may either hold that the precedent is inconsistent with subsequent authority, or that it should be distinguished by some material difference between the facts of the cases. If that judgment goes to appeal, the appellate Court will have the opportunity to review both the precedent and the case under appeal, overruling the previous case law by setting a new precedent of higher authority.
Reporting this to the Chief Justice might not help as that is an administrative action you have taken. The matter must be appealed. Your lawyers can guide you further.
Case of 1996 still in Court
My case is a 1996 case and is still in Court. It has been 18 years since I lodged it. This is gross delay by the system. What should I do?
IP, Dar
It is true that there is a huge case backlog in Courts in Tanzania. However it is not entirely the fault of the judiciary as some tend to believe. Cases get delayed because of lack of witnesses, non-seriousness on the part of the plaintiff and defendants including non availability of the counsel representing the two parties. It is quite unfortunate that you have been in Court for such a long time.
We suggest you write to the Judge in Charge about this and bring this to his or her attention. Just so that you know, we are informed the Chief Justice has directed that Judges stay on during this holiday season to clear cases that have been before them for long. You will find a number of advocates complaining about being forced to proceed with cases during the Court vacation that normally begins on December 15th and lasts till February 1st the following year.
Beneficiary in Will
My husband passed away and left some important musical instruments for a friend of his whom he mentioned in the Will. I did not know that person and as executor I was approached by a gentleman who identified himself as that person in the Will. After getting the probate I proceeded to give him all the musical instruments under the Will. Exactly a year later there showed up another gentleman who claimed that he was the person mentioned under the Will.
My investigations reveal that the first person was a fraudster whilst the fellow who appeared a year later was actually one of my husband’s fellow band player and rightfully entitled to the instruments. What should I do?
WP, Dar
Our Penal Code has a section that addresses this and states that any person who, with intent to defraud any person, falsely represents himself to be some other person, living or dead, is guilty of a misdemeanour. If the representation is that the offender is a person entitled by will or operation of law to any specific property and he commits the offence to obtain” such property or possession- thereof, he is liable to imprisonment for seven years.
Although it might not be easy to locate the fraudster, we suggest you report this to the police so that necessary action can be taken.
Insulting and abusive language
My boss is a foreigner and uses very abusive language on me. It is his style and everyone in the office is witness to this. Is such language not an offence under any of our laws in Tanzania?
SK, Dar
Section 89 of our Penal Code states that (1) Any person who- (a) uses obscene, abusive or insulting language to any other person, in such a manner as is likely to cause a breach of the peace; or (b) brawls or in any other manner creates, a disturbance in such a manner as is likely to cause a breach of the peace, is guilty of a misdemeanour and on conviction therefore is liable to imprisonment for six months.
From the above, you will note that such abusive language which can lead to a breach of peace is a criminal offence. The law does not provide for an option of a fine and once convicted, no matter what position he holds, he may end in jail for six months.