Q&A – 6 June 2016
Frustration in contract
I ordered wood logs from a country outside Tanzania and have paid more than Usd 1.5M in advance to the supplier. The delivery period was over a period of 6 months and I have yet to receive even a single piece of log. The supplier now says to me that after signing of the contract, the contract’s performance became illegal as the country authorities banned the exportation of wood outside that country. The suppliers say that since the contract is frustrated, they cannot refund me my money. What can I do to recover?
IU, Dar
Unfortunately you did not tell us what country you are importing from and the laws of what country apply to this contract. We assume it is a country which has adopted common law doctrines. If not, the answer below may change, as it may if the facts change.
Frustration is an English contract law doctrine, which acts as a device to set aside contracts where an unforeseen event either renders contractual obligations impossible, or radically changes the party’s principal purpose for entering into the contract. Before formulation of this doctrine it was not possible to set aside an impossible contract after formation.
A case that is on point that you may use in your favour to recover sums paid in advance is the UK decision in Fibrosa v Fairbairn Lawson Combe Barbour. In this case, the House of Lords ruled in favour of Fibrosa who had lost in the lower Courts after having paid an advance to Fairbairn which claimed, as has your supplier, that the contract was frustrated and refused to refund.
To recover you will need to look at the choice of law and dispute resolution clause to see where you can sue.
No costs in case
When one wins a case should the judge not order costs to be awarded in addition to the decretal amount? In a case that I fought for 5 years, the judge did not mention costs in his judgment. Please guide what options I have?
FW, Dar
Section 30 of the Civil Procedure Code states that (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the Purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers. (2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing. (3) The Court may give interest on costs at any rate not exceeding seven per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.
If the judge has not awarded you costs he or she must state the reasons for this. And if no reasons are cited, you may file for a review and challenge this.
Lying under oath
What are the consequences of lying under oath. I am involved in a case and the applicant has lied to such an extent that will lead to obstruction of justice. If it is proven that he has lied under oath, can he be imprisoned as is the case in other jurisdictions?
PF, Moshi
Section 102 of the Penal Code, which is our key criminal statute addresses this and states that (1) Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding or intended to be raised in that proceeding, is guilty of the misdemeanour termed “perjury”. It is immaterial whether the testimony is given on oath or otherwise.The forms and ceremonies used in administering the oath or in otherwise binding the person giving the testimony to speak the truth are immaterial, if he assents to the forms and ceremonies actually used. It is immaterial whether the false testimony is given orally or in writing. It is immaterial whether the court or tribunal is properly constituted, or is held in the proper place, or not if it actually acts a court or tribunal in the proceeding in which the testimony is given. It is immaterial whether the person who gives the testimony is a competent witness or not, or whether the testimony is admissible in the proceedings or not. (2) Any person who aids, abets, counsels, procures, or suborns another person to commit perjury is guilty of the misdemeanour termed “subornation of perjury.”
You can see from the above that lying under oath is called perjury and is an imprisonable offence under our laws.
Cohabitation before marriage
Is it an offence for me to have sexual relations with my girlfriend who is above the age of 18. I am told all the time that I can be jailed if I attempt?
IP, Dar
We are not aware of any law that bars consensual intercourse between two adults. Unless your girlfriend is not willing to, we do not see an issue. Perhaps the issue is more on the morality of the act than the legality. You can seek some counselling on this from your religious leaders but we do not see any illegality, at least with the facts as presented to us.