|New evidence in Court of appeal
| I have been in litigation in the High
Court for the past eight years. The
case has now been concluded and I
have lodged an appeal. There is one
particular key piece of evidence that
was not produced at the High Court
that I have requested my attorney to
present. He has however declined
saying the Court of Appeal disallows
such production of additional
evidence. Is this true?
| The Civil Procedure Code Cap 33 (RE
2002) reads as follows: ‘The parties
to an appeal shall not be entitled to
produce additional evidence, whether
oral or documentary, in the Court.
But if the court from whose decree
the appeal is preferred has refused to
admit evidence which ought to have
been admitted; or the Court requires
any document to be produced or any
witness to be examined to enable it
to pronounce judgment, or for any
other substantial cause, the Court may
allow such evidence or document to be
produced, or witness to be examined.”
It is not entirely true that you are
disallowed to produce additional
evidence. Unfortunately we are unable
to fully guide you as we are unsure
what this evidence is and why you did
not produce it at the trial Court. Your
attorney should make an appropriate
| I am a banker with 25 years
experience having worked in
Tanzania for the past year and a
half. In my Tanzanian experience I
have noted that Tanzanian Court’s
are lenient towards the borrowers
who have defaulted. The Court
does not take cognizance of the
fact that the borrower has taken
money from the bank. Lawyers in
Tanzania plead on behalf of the
borrower as if the defaulter has
not taken any funds from the bank.
How does one prosecute a case in
Tanzania effectively? What other
remedies does a banker have?
| There is no shortage of defaulters
in this market- your observation is correct. However we must draw
your attention that in the eleven
years of the existence of the High
Court Commercial Division, banks
have been highly successful in
recovery cases. It is a Court of
choice for bankers and the Court
has delivered some great results.
However bankers are also at times
to be blamed. For example in third
party mortgages, many banks in
the past years have been exposed
because they have forgotten to
take spousal consent, allowing
the property, mostly matrimonial
property to be mortgaged without
such a consent. Banks have also
failed to conduct due diligence
and many disburse funds prior to
perfection of securities. We do not
believe that the Court’s are to be
blamed in isolation. Bankers tend
to pin the blame on Court’s perhaps
to impress their board of directors.
Turning to your question on other
remedies that are available; please
be informed that the law is very
strict for borrowers. The law
now allows the bank to sell the
mortgaged property giving sixty
days notice and without going
to Court. You must appreciate
that no law can substitute for
banks conducting their due
diligence before disbursement.
The market here is challenging
but has great potential. We hope
your bank is not one of the banks
that has engaged itself in loans
disbursements prior to perfection
of securities- the banks defend
themselves by claiming that the
customer exerted a lot of pressure
and hence the disbursement!
person with disability
| I have been disabled since childhood having fallen victim to polio. I was brought up in Kigoma and moved to Moshi
before moving to Dar. In all my life, there has been no facility for the disabled. I would have to be carried physically as neither the schools
nor offices in Kigoma or Moshi had
|any access points for persons with disabilities. Dar es Salaam with all these new buildings is no better.
Is there no law that forces these developers to build facilities for persons with disabilities? My second question is on the job discrimination
against people like myself. We are underpaid, mistreated and many a times unemployed. Who comes to our protection?
You have raised some very pertinent questions. Unfortunately the older buildings still do not have easy access points for persons with disabilities.
A new law has been passed by parliament- Persons with Disabilities Act 2010. This has addressed some of your concerns.
The law is very clear in that all persons with disabilities shall be entitled to a barrier free and disability friendly environment to enable them to have
access to public premises and facilities for public use, roads, communications and other social amenities to assist and promote their mobility. The law further
adds that architects, engineers and other persons who are involved in design and construction of the physical environment shall observe and comply with
accesibility requirements to ensure that all new buildings, roads, playgrounds, transport facilities and renovation of the old ones, conforms to designs aimed at
creating access for person with disabilities. Under the law it is an offence for a person with disabilities to be denied access to such public buildings.
As for the discrimination towards employment of a person with disabilities, the law states that this is illegal and an offence which is punishable by a fine,
or imprisonment, or both. In short, any employer or potential employer who discriminates against a person because of his disability, may end up in prison.
Send in your questions by
by post to:
Q&A with FB Attorneys
P.O. Box 9033,
Dar es Salaam, Tanzania.
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This column is intended to give you a general over view of
the Law. It is not a substitute
to the role of your legal advisor. If you
have legal issues, you are strongly recommended
to contact your Attorney.