Q&A – 5 September 2011

Pros and Cons of arbitration

A foreign client who wants to lease my house wants to insert an arbitration clause whereby in case of disputes the matter would be referred to the London Court of International Arbitration (LCIA). Should I accept this? I don’t anticipate any problems with the lease as it is only a two year period. What are the advantages and disadvantages of arbitration? Does Tanzania law allow arbitration? If not what alternatives do I have?
MK, Dar

You have not disclosed to us what the amount of the lease is. We assume the amount is not very large as it is a residential property and hence answer your question on that basis.

Whilst arbitration is quite effective, choosing LCIA as an arbitration venue for such a small amount will be extremely costly for you and perhaps not worth it.

Advantages of arbitration include that the parties and their attorneys can select their arbitrator (they cannot select their judge), arbitration is generally faster and less formal than courts, appointments are scheduled with the arbitrator at the mutual convenience of all concerned (no other cases compete for attention) and the parties not the Court calendar, decide when and how much time the arbitrator spends on their case.

Disadvantages include the costs involved as you pay per hour of the arbitrator’s time, the arbitrator’s authority is determined by the contract that the parties sign and the arbitrator’s settlement is final and generally cannot be appealed.

Tanzania law very much recognizes arbitration even if it is conducted in a foreign jurisdiction. The challenge sometimes is executing the award in Tanzania but that is not the subject of your question.

The alternative we recommend is the arbitration venue be Dar es Salaam, the language be English, and that each of you should be allowed to appoint an arbitrator and the umpire (third arbitrator) should be jointly appointed by the two appointed arbitrators.

Won case, no costs awarded

Three years ago I instituted a suit at the District Court in a contractual dispute. Judgment was in my favour with orders to the defendant to specifically perform. In the judgment, the trial magistrate did not order costs. A close friend advises me that I am entitled to costs that will cover my entire legal fees. What should I do to claim costs? Am I entitled to them?
CM, Dodoma

Normally costs follow the successful party in litigation. The law has left award of costs to the discretion of the Courts. However such discretion needs to be judicially exercised and the Courts must state reasons for not awarding costs to the successful party. A common reason to deny costs is the conduct of the party in the case. It seems there are no reasons assigned to why costs have not been awarded to you. We advise you consult your attorneys for a review of the said decision.

Unprofessional conduct by nurse

My 82 year old mother was admitted at a ward in Mwanza hospital for six weeks having suffered a stroke. One of the night nurses attending to her was showing all signs of incompetence and went to the extent of telling my mother why she wanted to live longer and that she was likely to get a stroke again and become a vegetable. Where can I lodge a complaint against this nurse?
OU, Mwanza

The Nursing and Midwifery Act of 2010 has established a nursing and midwifery council which is a corporate body which registers and enrolls nurses. It has the power to issue, renew, replace and cancel nursing and midwifery practicing licences.

The council also appoints a registrar who is there to receive complaints against nurses on unfitness to practice which includes professional misconduct, as seems to be the case here. We suggest that you report the nurse to the council through the registrar which
may launch an inquiry. The council has powers to suspend or remove from the roll any nurse if it finds that a case has been made against the nurse.

Obscenity on e mail, text messages

I am a beautiful girl working in the city of Dar es Salaam having moved a year ago from Tanga. I have been receiving obscene messages on my phone and on e mail and am curious to know if this is legal. I tried to trace the number but it does not seem to have been registered. The e mails that I receive also contain very explicit images. How does the law protect citizens from this?
DI, Dar

The Electronic and Postal Communications act addresses this issue exactly as you have stated above. Under the act any person by means of any network facilities, network services, applications services or content services, knowingly makes, creates or solicits or initiates the transmission of any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person commits an offence and shall be liable to a fine of not less than five million shillings or to imprisonment for a term not less than twelve months, or to both and shall also be liable to fine of 750,000 shillings for every day during which the offence is committed. We suggest you report this to the police- the challenge however remains identifying the sender of the messages.

Under the same act it is illegal to use an unregistered sim card- it is an imprisonable offence. The mobile company that is allowing such usage can also be taken to task. We suggest you first try and report this to the mobile operator and if they do not act on it, you proceed to report both the mobile number and the mobile operator to the police.

Just so that you know, the Act fortunately protects every resident of Tanzania- not only those who are beautiful! After all beauty is in the eyes of the beholder.