loader
Picha

Stay of execution at Court of Appeal

I lost a case ex parte at the High Court when I was away on medical treatment outside the country. I have appealed the decision and also filed for a stay of execution. My lawyers tell me that I should prepare myself to deposit the funds in Court as a condition for the granting of stay. However, in any case, I have no such security as it is with the bank. The decision is so unjust and I cannot be forced to deposit the amount when I have such a strong appeal. Please guide me. TG, Dar

It is true that the Tanzania Court of Appeal rules require the Appellant to provide security for the due performance of the decree. Rule 11 states that no order for stay of execution shall be made unless the Court is satisfied (i) that substantial loss may result to the party applying for stay of execution unless the order is made; (ii) that the application has been made without unreasonable delay; and (iii) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

The security need not be a cash deposit but a title deed normally suffices. In fact a recent decision of the Court of Appeal has allowed the security that is already with the bank, as a mortgage, to serve as a deposit for the due performance of the decree, especially where the decree is of a smaller amount than the market value of the property that has been mortgaged. Your lawyer needs to look into this judgment and guide you further. We wish you all the best.

CAG and TRA powers

Is it only the TRA or other authorities that can jointly conduct investigations on a company? I have recently been served with a notice that the TRA in addition to the CAG want to conduct an audit of my company’s affairs. Is this allowed and how do I protect myself from confidentiality? Should I get them to sign a NDA as I am scared they will leak the info to my competitors. GO, Moshi

The TRA has power to audit any taxpayer’s business affairs for the purposes of ascertaining various aspects of compliance of the taxpayer. Also, in conducting its affairs, the TRA has powers to request any other officer of the government like that of the Controller and Auditor General (CAG) or even private experts to help them conduct such audits. Hence if it is TRA having brought the CAG then this is allowed under our law.

Under law, both the TRA and CAG are bound by confidentiality. It is their statutory obligation and no NDA needs to be signed. When a law comes into force I need to know when a law comes into force? I would think that once they are passed by the National Assembly and assented by the President they come into force only to find out that there are more steps to follow.

Please explain to me how this works? This is stalling progress is it not? IF, Dodoma Bills, which are the draft laws, are taken to the National Assembly in Dodoma.

After passing the National Assembly, the President must assent to the bill for it to become law. However upon assentment, it is not automatic that the bill will come into force.

Coming into force is the commencement date of the act. The law can come into commencement one amongst the following three ways. The first is where a date of commencement is stated in the Act itself, which in recent times has become quite rare.

The second way is where the Act leaves the commencement in the hands of a certain authority appointed by the respective Act itself. For example the Act would state that this Act shall come into force on such date as the Minister may by notice in the gazette appoint. Hence under this method, the laws commencement date is at the mercy of the Minister or relevant appointment authority.

A typical example is the Minister for Industries and Trade who for the past few years has surprisingly failed to bring into force the commencement of the change in law for a company to have a single shareholder, despite both the law having passed the National Assembly and having been assented to by the President. Hence till date you cannot register a single shareholder company because of the nonaction of the appointing authority. This is a typical example of progress being stalled. The third way for an Act to commence, again which is rare, is for the Act not to mention it and the commencement date would then automatically be as soon as it is published in the gazette.

Community service instead of prison

Is there a law in Tanzania that allows prisoners to perform community service instead of rotting in prison? What are the conditions? UU, Moshi

There is an act called the Community Service Act which makes provisions for the introduction and regulation of community service on offenders in certain cases, and for connected and incidental matters.

Section 3 states that (1) where any person is convicted of an offence punishable by– (a) imprisonment for a term not exceeding three years, with or without the option of a fine; or (b) imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate, the court may, subject to this Act, make a community service order requiring the offender to perform community service. Hence if the offender is sentenced to a term not exceeding 3 years, this Act can be invoked.

You must remember that this is not an automatic right and the Community Service Orders Committee amongst others have discretionary power under this Act.

foto
Author: FB Attorneys

Recent Posts

Categories

more headlines in our related posts

latest # news