Q&A – 9 February 2015

Commercial Court judgment not delivered

I went to the Commercial Court and we completed hearing and final submissions six months ago but the judgment has not been issued till date. I am disappointed. Your column has always said that this is one of the best Court’s in East Africa, but it has not lived to my expectation. What do I do?
GO, Dar

We still maintain our stand that this is a good Court to file cases in. Your cases might be one of the few cases whose judgment is stuck somewhere.

In fact the Commercial Court Rule 67 states that (1) The Court shall, at the conclusion of hearing deliver judgment within a period of sixty days in case of a judgment or thirty days in case of ruling. (2) Where a Judge fails to comply with the provisions of sub rule (1), he shall state in the Court record the reason for such failure. (3) Every judgment shall embody at the end a summary of the reliefs granted by the Court.

You will note that judgment must be delivered within 60 days. We recommend you go see the judge in charge or registrar at the Commercial Court who can address this issue.

Nameless child

I would like to have a baby girl as boys are too naughty and untrustworthy. Can I decide to keep a girl and let the baby boy be adopted. I also do not wish to name my child. How do I go about this?
RJ, Dar

Children are gifts from God and not commodities or objects like you seem to think. Nature doesn’t allow you to choose the sex of the child and neither does the law. You hence cannot give away your boy for adoption on the grounds stated in your question.

Furthermore, it is mandatory for identification purposes that you name your child. Without a name we are unsure how the child can survive in today’s digital era. We are also unsure why you wish to do so as it is hard to imagine how you or others would address your child.

Prospecting without licence

I have a small farm in Western Tanzania which I visit every few weeks. My neighbor has found some rare minerals in his piece of land next door and I wish to start digging to look for the same mineral. Can I do so without having a licence?
EG, Mwanza

Under the Mining Act it is illegal to conduct prospecting or mining operations without a valid licence.

Section 6 states that (1) No person shall, on or in any land to which this Act applies, prospect for minerals or carry on mining operations except under the authority of a mineral right granted or deemed to have been granted, under this Act. (2) The activities carried on by the Agency in the course of geological mapping shall not be treated for the purpose of subsection (1) as prospecting for minerals or mining operations. (3) Any person who contravenes subsection (1), commits an offence and on conviction is liable- (a) in the case of an individual, to a fine of not exceeding five million shillings or to imprisonment for a period not exceeding three years, or to both; (b) in the case of a body corporate, to a fine of not less than fifty million shillings. (4) Any minerals obtained in the course of unauthorized prospecting or mining operations including equipment involved in such operations shall be forfeited.

In fact so serious is this offence that the Economic and Organised Crimes Act has this offence listed under it meaning that if you are arrested, getting bail will also be very difficult.

Appearance at Court of Appeal

Can any advocate in Tanzania appear at the Court of Appeal? Can my attorney from the UK appear in the Court of Appeal? What if I want to defend my appeal myself?
GY, Dar

Rule 33(3) of the Court of Appeal Rules states that no advocate shall have the right of audience in the Court unless he has practiced for a period of not less than five years in the High Court and Courts subordinate thereto: Provided that an advocate who has not practiced for five years in the High Court and Courts subordinate may apply for a waiver in a particular matter in writing to the Chief Justice or Presiding Justice, as the case may be, and shall be made within a period of not less than seven days to the date of hearing of the particular matter, showing good grounds for seeking the waiver.

The Court of Appeal is the apex Court in the country and requires that those advocates who appear before it have a minimum standing of atleast five years. This is a formality that other countries also have; infact some countries require an experience of upto ten years.

The Court of Appeal rules do also allow advocates from other countries to appear before it subject to a licence from the Chief Justice. This particular rule states that any other person entitled to appear as counsel or advocate before any Court of unlimited jurisdiction in any country in the Commonwealth shall, if licensed in that behalf by the Chief Justice and subject to payment of the prescribed fee, have the right of audience before the Court in respect of any one appeal or application, including any cross-appeal heard with it, or any two or more appeals or applications consolidated for hearing.

If you wish to defend yourself, you can do so but make sure you familiarizes yourself with the rules and law.