THE DOCTRINE OF ULTRA VIRES IN COMPANY LAW BY MWAKISIKI MWAKISIKI EDWARDS


The object clause of the Memorandum of the company contains the object for which the company is formed. An act of the company must not be beyond the objects clause, otherwise it will be ultra vires and, therefore, void and cannot be ratified even if all the members wish to ratify it.  This is called the doctrine of ultra vires, which has been firmly established in the case of Ashtray Railway Carriage and Iron Company Ltd v. Riche .

In this case the memorandum of association of a company thus defined its objects: “The object for which the company is established are to make and sell, or lend on hire, railway carriages and wagons and all kinds of railway plants, etc., to carry on the business of mechanical engineers, and general contractors ….” The company entered into a contract with Riche, a firm of railway contractor to finance the construction of a railway line in Belgium. The company, however, repudiated the contract as ultra vires. And Riche brought an action for damages for breach of contract. His contentions were that the contract in question came well within the meaning of the words “general contractors” and, was, therefore, within the power of the company, and, secondly, that the contractor was ratified by a majority of the shareholders. But the House of Lords held that the contract was ultra vires and, therefore, null and void. 

The expression ultra vires consist of two words: ultra and vires. Ultra means beyond and vires means power. Thus, the expression ultra vires means an act beyond the powers. Thus the expression ultra vires means an act beyond the powers. Here the expression ultra vires is used to indicate an act of the company which is beyond the powers conferred on the company by the objects clause of its memorandum. An ultra vires act is void and cannot be ratified even if all the directors wish to ratify it.  Sometimes the expression ultra vires is used to describe the situation when the directors of a company have exceeded the powers delegated to them. Where a company exceeds its power as conferred on it by the objects clause of its memorandum , it is not bound by it because it lacks legal capacity to incur responsibility for the action, but when the directors of a company have exceeded the powers delegated to them.  

The position of doctrine of utra-vires in Tanzania

It is noted that a contract beyond the objects clause of the company’s memorandum is an ultra vires contract and cannot be enforced by or against the company as was decided in the case of Tanzania Knitwear Ltd. vs Shamsu Esmail  resolution was passed by directors of the company to issue 800 shares. It was also resolved that each shareholder be offered to purchase the said shares according to individual shareholding. 

‘’It was held that where shareholders are offered to purchase new shares on a pro-rata basis, the applicant cannot be heard to complain that the resolution was oppressive to him.’’ 

However the resolution was declared illegal because it was passed by directors contrary to the requirement of section 51(2) of the Companies Ordinance which required such resolution to be passed by a company in general meeting.

So in Tanzania the rule also was aimed to protect shareholders in the sense that the company could not devote any of funds to objects strange to its own objects under the memorandum. As such the rule was aimed to protect the investors in the sense that the company could do all such things which are authorized to be done by the Companies Act and not to devote any of the funds to objects strange to its own object under the memorandum.  

Further, Section 37 of the Company Act, crowns it by stating that a party to a transaction with a company is not bound to enquire as to whether it is permitted by the company’s memorandum or as to any limitation on the powers of the board of directors to bind the company or authorise others to do so.

REPRESENTATIVE SUIT IN TANZANIA BY MWAKISIKI MWAKISIKI EDWARDS

Representative suit is the suit brought or instituted before the court of law 

specifically when some persons represents another persons interested in filing a particular suit.  As far as Tanzania laws are concerned the provisions of Order 1 Rule 8 of civil procedure code  elaborate several issues regarding representative suits including the conditions and procedures and this order and rules is considered to be an exception to the general rule stipulated under Order 1 Rule 1 and 3 of civil procedure code , which provides for joinder of plaintiffs and defendants respectively.

A representative suit shows a significant variation from normal civil suits in many aspects for example in an ordinary suit, no prior leave of the court is required for institution while in a representative suit prior leave is required that is it cannot be a representative suit unless prior leave of the court has been sought and granted. 

By closing closely observing the provision of Order 1 rule 8 of the Civil Procedure Code , the following conditions can be deduced which normally make a representative suit a representative one and this includes:- there must be numerous number of parties, the interest of all parties must be the same, the court should give permission and lastly notice must be issued to proposed parties, which are detailed below:-

There must be numerous people, This means that there must be many people who shares or  must have a communality of interests and that interest must exist at the time of making an application for a representation order. These numerous people will elect or nominate few people to represent them in contesting a suit before the court of law and they must sign a memorandum of agreement since the decision which will be given at the disposal of the suit will bind all the member. 

The interest of all parties must be the same, Unlike in joinder of the parties where the cause of action must be the same, in representative suit its essential only there is communality of interest to all members and such interest must exist at the time of making an application for an representative order. In case the people suing under representative suit did not share common interests the court will not grant a leave or representative order. 

Court should give permission, The court permission is greatly required for parties to be allowed to institute their suit under a representative character and the member wishing to due Under representative suit are obliged to seek the leave of the Court first and the Court will determine on whether to grant permission or not by observing other required conditions stipulated under order 1 rule 8 of civil procedure code if are met. 

Notice must be issued to proposed parties, This also constitute to another significant condition prior in instituting a representative suit and under this respect notice of the suit must be given to all persons on whose behalf or for whose benefit a suit is instituted or defended, and such notice shall be given either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.  

The case of Abdallah Mohamed Msakandeo & Others v The City commission of Dar es salaam , summaries the requited conditions for representative suit and its an important case that stipulated some requirements which must be fulfilled so that we can have a legally representative suit. One according to the case, there must be numerous people. Two, these numerous people, must have a communality of interests and that interest must exist at the time of making an application for a representation order. Third, the numerous people must express a willingness of having the applicant for the representation order representing them. A person cannot be bound on the decision unless he is willing to be represented. Those people who don’t appear before the court must be shown to have acquiesced.

It should be noted that not all courses of action can give rise to a representation suit. The case of Balunt Sigh v Joginder Sigh says not all courses of action may raise a representative suit. This was a Libel defamation case. It developed the general rule that libel actions are personal actions. Therefore the lesson we are getting from that case is that before deciding to apply for a representation order, you must decide whether the suit is based on an action in rem or an action n persona. If it’s in persona it does not qualify to be a representative action.

For representative suit to be legally a representative suit the following stages and procedures must be followed and this includes the followings:-

Nomination of the representative and signing of a memorandum to the effects, the several plaintiffs or defendants may nominate a few of them for purposes of appearance. Therefore in terms of appearing before the court and receiving directions of the court, the parties may agree to choose a number of them to make such appearance. They agree by filling a memorandum to that effect. The rest must sign the memorandum and all the parties should be impleaded during an action taken by a smaller group of people would be an action which binds all of them. Having that done it follow another stage which is making application for leave to file a representative suit.

Application for leave to file a representative suit, Order 43, Rule 2 of Civil Procedure Code  provides that, every application made in court must be filed or made by way of Chamber Summons and affidavits, which will contain the names of the numerous people, If there’s no such annexure, then the application will be incompetent and the court will have to dismiss it. 

Issuing representative order, This is an order made by the court under Order 1, Rule 8 allowing one or more parties to a suit (who are interested in a suit) to prosecute or defend the suit on behalf of a wider group of persons interested in the same suit. When a representative order is made, a decision in the suit will bind all those interested in the suit whether they had appeared before the court or not.

The most important implications of a representation order are two. One the numerous people who will not be in court, will be bound by the judgment which will be issued and therefore they cannot institute a suit based on the same course of action and seek relief subsequent to the representative suit, and two, in case they do not succeed in the suit, they will be liable to pay the defendant his costs. There are cost implications if they do not win the case, they will be liable to pay the defendant his costs. After a court have received the application its time for it to determine on whether to issue a representative order or not, and this constitute to another stage of a representative suits.

The case of  Kiteria Menezes and 33 others v Area Engineering works Ltd and AG , carries the decision that disagreed the position that you can file a representative suit before getting a representation order, and that the correct interpretation of Order 1 Rule 8 is that what comes first is the representation order. The suit comes after the representation order has been made. ‘‘It will be absurd for a representative suit to exist before a representation order has been made because an application for a representation order may be refused. Therefore a representation order is a necessary precondition for the institution of a representative suit.’’

In Murdin Ibrahim & 899 others Vs. THA,  In this case, a representative order was made after the suit had been instituted. The plaint was filed by 900’s plaintiffs, their names were cited in plaint and they all signed, but the different is that all their names appeared in the list of annexed to the plaint except two of them. All two people signed the plaint. Technically the suit was indication by only two people but there was an indication by annexing a list of names to the plaint as the names of those people who will be interested in the suit. The question was when did the suit come to be involving those names appeared in list? The answer was that, they became partly to the suit after the representation order were interested in the same suit. And the application was made after the file.

Kamuti Kamwengo & others v  Tanzania Zambia Railway Authority , the Court of appeal  in that case repeated the position that a prior representation order must be sought and obtained before a representative suit is instituted.

Notice of the suit, Rule 8 above ordains in mandatory terms that notice of the suit must be given to all persons on whose behalf or for whose benefit a suit is instituted or defended, and such notice shall be given either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct. That notice is published as expenses of those seeking a representative order. In the case of Masawe and Company v. Jasper Cartel & 18 Others  Was looking at the provisions of  Order 1 Rule 8 and it said that notice to the suit must be sought and be issued to the proposed party and such notice will be issued by the Court and normally will be done in a way of public advertisement like in newspaper.  

REFERENCE.

BOOKS

Jain M.P.(2010).‘The Code of Civil procedure’ Lexis Nexis 3rd Edition.

Takwani, C.K. (2003) Civil Procedure, 5th Edition, Eastern Book Company.

STATUTE

Civil Procedure Code  (Cap 33 R.E 2002).

WOMEN'S LAND RIGHTS IN TANZANIA BY MWAKISIKI MWAKISIKI EDWARDS

Both the Constitution and a number of written laws in Tanzania recognize women’s equal rights to property and the relevant laws include: the Law of Marriage Act of 1971, the Land Act of 199, the Village Land Act of 1999, The national land policy, and the Mortgage Financing (Special Provisions) Act of 2008 (amending the Land Act of 1999 to require additional safeguards for spouses in the mortgage context). 

Women land rights as per Tanzania Constitution of 1977.

Women’s social economic and political rights are provided for and secured within the united republic of Tanzania constitution of 1971, which is the basis of all the citizens rights. The constitution of 1977, thus clearly spells out women rights by first prohibiting discrimination on whatsoever ground and emphasizes equality of all persons. 

Article 12, states that; all human beings are born free and are all equal , Article 13(i), all people are equal before the law and are entitled without discrimination to protection and equality before the law . Article 24(1), is explicit that every person is entitled to own property. The article further states that any deprivation of a person’s property is unlawful unless declared by law which makes provision for fair and adequate compensation. Land is a property that every citizen is entitled and therefore women as citizens are entitled to this right . Article 29(3) ensures that no citizen shall have a right, status or special position on basis of lineage, tradition or descent. 

Women land right as per Law of marriage Act of 1971.

The Law of Marriage Act of 1971 provides that married women have the right to acquire, hold and dispose of property, movable or immovable, during the course of the marriage, and the right to distribution of property earned jointly when the relationship is dissolved as far as section 56-58 of the said law is concerned.  Property and other matrimonial assets that a woman has acquired individually belong to her. When there are two or more wives, they have equal rights and liabilities as spouses as per sections 56-63. 

Women land right as per National Land Policy of 1999.

The National land policy of 1999, covers a wide range of issues relating to women’s equal right to own land. One of its objectives is to promote an equitable distribution of, and access by all citizens to land. Paragraph 4:2:5 recognize the existing problems relating to land. It states ‘Under customary law, women generally have inferior land rights relative to men and their access to land is indirect and insecure’  Paragraph 4:2:6 continues to state further that in order to enhance and guarantee women’s access to land and security of tenure, ‘women will be entitled to acquire land in their own right not only through purchase but also through allocation’. 

Women land rights as per Village Land Act No. 5 of 1999.

Section 3(1 and 2) of the village land act clearly states and recognizes equal rights for men and women to access, own, control and disposition of land under the same terms and conditions.   Section 20(2) protects women against discriminatory customs and traditions which restrict their lawful access to ownership, occupation and use of land. 

Section 23(2)(c) and section 57(3) accords equal treatment of women in the application of customary right of occupancy by both the village land council and the adjudication committee, Section 22(1)  grants women to acquire land after divorce. 

Village Land Act establishes organs for dispute resolution that run from the village level to appellate court level. Women participation in village and ward level machineries is made mandatory. Section 60 of the village land Act and the land disputes (courts) act of 2002 require that out of 7 members of the village land council should not be less than 3 and out of 5 to 8 members of WT women should not be less than 3 as well. 

Women land rights in Land Act no. 4 of 1999.

The 1999 legislation adequately provides for a bunch of rights for women to access, own, and control land as equal as men. It also provides for the right to participate in decision making organs regarding land matters. They also provide for women right to dispose land and properties therein. 

Section 3(2) of Land Act states that ‘The right of every woman to acquire, hold, use and deal with land shall, to the same extent and subject to the same restrictions be treated as a right of any man. 

Section 108(1) (h) (iii) of the Land Act protects women by requiring the court to have regard to women in considering whether to grant an order for determination of a lease or relief against such. Section 112 of the land Act provides for the power of an occupier of land in creating mortgages. Sub-section 3 requires the consent of all the spouses before a matrimonial home is subjected to Mortgage. 

Section 113(3) empowers the dependant of a borrower whose land is likely to be permanently deprived to apply to court on the ground that its terms were of disadvantageous to him or her. And in considering that the court is obliged to have regarded to gender as well, also part X and Part xvii, allows women to own or occupy land jointly or in common with other persons.  

Under joint occupancy, the law protects women as it provides that where the land as whole is occupied jointly under a right of occupancy, no occupier is entitled to any separate share in land, not even a transfer to an outsider unless there is a consent between the two occupiers. It is important to note that this is created mostly between spouses as per section 159(1),(8). 

Under the occupation in common, women are protected in that each occupier is entitled to an undivided share in the whole. Any disposal of land here requires consent as well. Spouses may be presumed to occupy land in common as per Section 160(1) of the Land Act. 

Section 161(3) (b) of the Act the law requires that before any transfer or assignment is effected it is the duty of the assignee or the transferee to make inquiries as to the consent of the spouses as per Section 59 of the law of marriage. 

Despite all those legal provisions that guarantee women access to land, ownership and protection of their rights to land, the situation on the ground is proving otherwise as many women are still discriminated upon and denied their rights to land,  for instance,  Most women have access to land through their spouses or male relatives but do not own on their own, unmarried daughters, widows and divorced women have been a subject of stigmatization, discrimination and harassment by their male relatives in different ways. 

THE DOCTRINE OF CHECK AND BALANCE

BY MWAKISIKI MWAKISIKI EDWARDS

The separation of powers, together with the rule of law and parliamentary sovereignty runs like a thread through most of the constitutions. It is the doctrine which is of great importance to the state and to the concept of constitutionalism; in so far as it prescribes the appropriate allocation of powers and the limits of those powers, to differing institutions. The concept has played a major role in the formation of constitutions. The extent to which powers can be and should be, separated and distinct was a central feature in formulating, for example both the American and French constitutions. 

Check and balance is a mechanism designed to limit the power of a single individual or body of the government and provide for the harmonious interrelationship of the people and all of the organs of the government or other social institutions. The system of check and balance between three arms of the state which are executive, parliament and judiciary. 

The Executive

This can be defined as that branch of the state which formulates policy and is responsible for its execution. In formal terms, the sovereign is the head of the executive. The Prime Minster, Cabinet and other ministers, for the most part, are elected Members of Parliament. In addition the civil social service local authorities, police and armed forces constitute the executive in practical terms. 

The Legislature

branch of the state which formulate law as it’s prime function and it has a duty of approving bills and government budget and its mostly composed with member of parliament elected from each constituency. Art. 64 (5)

The Judiciary

it is that branch of the state which adjudicate upon conflicts between individuals. The judiciary is independent of both the parliament and the executive. It is the feature of judicial independence which is of prime importance both in relation to government according to law and in the protection of liberty of the citizen against the executive Art. 107A and 107B

Check and balance can be vividly seen in the whole process through which laws are formed in the country and this can be analysed as follows:-

Firstly, the legislative branch introduces and votes on a bill. The bill then goes to the executive branch, where the President decides whether he thinks the bill is good for the country. If so, he signs the bill, and it becomes a law. If the President does not believe the bill is good for the country, he does not sign it. This is called a veto power vested to the president. 

Secondly, The legislative branch gets another chance. With enough votes, the legislative branch can override the executive branch's veto, and the bill becomes a law. 

Thirdly, Once a law is in place, the people of the country can test it through the court system, which is under the control of the judicial branch. If someone believes a law is unfair, a lawsuit can be filed. Lawyers then make arguments for and against the case, and a judge decides which side has presented the most convincing arguments. The side that loses can choose to appeal to a higher court, and may eventually reach the highest court of all, that is the court of appeal. 

Fourthly, If the legislative branch does not agree with the way in which the judicial branch has interpreted the law, they can introduce a new piece of legislation, and the process starts all over again as it is an endless process. 

Apart from the process of how law are made, a process that largely explain the concept of check and balance, the concept can also be best understood by considering the followings aspect where three arms of the state do interact to one another and limiting either of the branch to become more powerful.  In other circumstances the parliament may adopt a no-confidence vote in government and the government or the cabinet in turn may dissolve the parliament. 

The Executive checks on the Legislature and Judiciary

Under this respect the executive checks on legislature and judiciary through the followings:-

Through Veto power, This is when a parliament passes a bill and after passing it the president has the power to veto it. The usual way to do this is to send the bill back to parliament with a veto message within ten days of receiving it. The veto message explains to parliament and the nation why the president is rejecting a bill. This is called a return veto. 

Through Impoundment, Impoundment happens when the president refuses to spend money parliament has appropriated to a specific department, agency, or program. Presidents and executive agencies use impoundment to control government spending. They also use it to prevent the government from spending tax shillings on projects of which the president's administration does not approve. 

Through Appointment Power, under the virtue of the constitution presidents have the power to nominate people to serve on the high courts and lower  courts. The Parliament gets to vote whether to approve or reject these nominations. A simple majority is all that is required to approve the president's choices.  (Cite the article of Constitution that gives the president power to appoint)

Through Pardon and Reprieves, The president has the power to grant pardons and reprieves for offenses against the States. A pardon is complete forgiveness for a crime. It prevents the criminal from being punished by the law. A reprieve suspends a sentence, or punishment, to give a criminal time to ask the court to change the sentence. The pardon power checks the power of the courts by allowing a president to forgive a criminal if he thinks the courts were unfair. (Cite the provisions of Constitution that gives the president power to pardon)

The Legislature checks on the Executive and Judiciary. Art. 45 of Cap 2

Through Impeachment, The executive officials may only be removed from office by impeachment for and conviction of treason, bribery, and other high crimes and misdemeanours and the parliament has the sole authority to conduct the process. The parliament can impeach officials by vote of a simple majority. Impeachment serves as an accusation of misconduct. Once impeached, an official faces trial in the courts, which can remove the official by vote of at least a two-thirds majority. The judiciary plays no role in the process. 

Through Override Vetoes, When the president has vetoed a decision to pass a bill the legislature can veto the president’s decision. This can be done by a vote which has about 2/3 majority then the president’s veto can be override by the parliament. 

Through Parliamentary Question Time, Members of parliament hold the executive branch of government accountable through question in respect of which the exercise has to respond or answer.  For example the presence of prime minister in the parliament is for this purpose. 

Through Confirmation of Judicial Nominees, The Legislature confirms the people who are assigned to run the justice of the peace. The nominees are chosen by the executive and the names are sent to parliament to be approved. 

The Judiciary checks on the Executive and Legislature

Through Judicial Review, Judicial review is the power to review government action for compliance with the Constitution. The Constitution does not specifically give the  judiciary this power. Instead, the  Court assumed the power in its decision in (attach a case relating to judicial review here)

Judicial interpretation, Judicial interpretation is the act of deciding what a parliamentary law or executive regulation means. In theory, judicial interpretation is not supposed to be a check on parliament or executive power. Instead, it is supposed to determine and enforce the will of parliament or the executive branch. In practice, however, interpreting laws and regulations gives courts considerable power to determine what they mean, which can affect the exercise of parliament and executive power. 

Conclusion

After analysing the three government branches, you see clearly how the system of checks and balances works. The doctrine of separation of powers is not completely separate for fear of one branch having too much power. The three branches check and balance each other to make sure that none of the three branches has the most power. The Legislature writes the laws, The Executive branch executes the laws and the Judiciary makes sure the laws are implanted.

References 

Electronic sources

www.unconstitution.net/consttop

www.factmonster.com

www.enotes.com

Books

Barnett, H (2010). Constitutional and Administrative Law Eighth Edition. Francis group publishers: Britain

Kowalski K. M. (2006). A Balancing Act: A look at the checks and balances: Lerner Publication company.Briston.

CROSS-EXAMINATION AS A HEART OF DEFENSE CASE BY MWAKISIKI MWAKISIKI EDWARDS

Examnation of witness  it is always the form of questions and answers. The deposition is usually taken down in the form of a narrative out of the answers. The examination of witnesses generally takes three stages . Firstly, The examination-in-chief provided under section 156(1) , which is done by the party who calls the , witness. Secondly, Cross-examination section as provided under section 146(2) , which involves the examination of a witness by the adverse party, and finally Re-examination as provided under section 146(3) , which involves the examination of a witness subsequent to the cross-examination by a party calling him. Section 152 of Evidence Act  permits leading questions in cross-examination of a witness.

The right of cross-examination is a statutory right which vests in a party to the proceedings. The objects of cross-examination are to impeach the accuracy, credibility and general value of the evidence given in examination-in-chief; to shift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examination party. 

The object of cross-examination is two fold to weaken, qualify, or destroy the case of the opponent; and to establish the party’s own case by means of his opponent’s weakness. 

Cross-examination is directed to, The credibility of the witness, the facts to which he had deposed in-chief, including the examiner’s version thereof: and the facts which the witness had not deposed but to which the cross-examiner thinks he is able to depose. 

Cross examination is the heart of the defence case, as cross examination helps the defendant to do the followings:-

Firstly, the cross examination helps the defendant to impeach the accuracy, credibility and general value of the evidence given in examination-in-chief.

According to section 154, a witness may be cross-examined as to any statement as to relevant facts made by him on a former occasion in writing or reduced to writing without showing the writing to him or proving the same. But if it is intended to contradict him by the writing his attention must be called to the writing

In the case of Magoti s/o Matofali (1953) 20 E.A.C.A. 232, the committing magistrate’s court clerk was called to prove a deposition which was used to impeach the credibility of a prosecution witness. It was held that where the defence wishes to impeach a prosecution witness’s credibility by the use of his deposition before the committing magistrate the provisions of section 145 of India Evidence Act [section 154 of Tanzania Evidence Act] must be observed.

Secondly, its through cross examination that the defendant is able to shift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examination party.

Thirdly, it’s trough cross-examination that the defendant will weaken, qualify, or destroy the case of the opponent. 

The aim of destructive cross-examination is to weaken, and if possible to destroy, harmful evidence given by a witness (including one's own witness if the court allows this) in order to defeat the opponent's case. To achieve the rejection of evidence led by the opponent, a cross-examiner usually has to rely on the support of evidence which he calls himself to contradict and overcome the evidence which he is challenging.

Fourthly, through cross examination a defendant is able to establish the party’s own case by means of his opponent’s weakness. The aim of constructive cross-examination is to build or strengthen one's case with positive and favourable evidence obtained from another party's witness which supports one's evidence-in-chief. Witnesses called by another party are not necessarily hostile, biased or unwilling to co-operate. If they are honest, they may be expected to concede favourable facts where this is justified. Even if they are partisan or untruthful, the context may oblige them to admit some indisputable facts. The techniques of constructive cross-examination are the subject of the next chapter, namely, emphasis, eliciting new meanings, eliciting new facts and putting the alternative case.

Fifthly, Cross examination helps the defendant to check the credibility of the witness by means of Impeaching Credit of Witness. Section 164 enables parties to give independent evidence as to the character of a witness in order to indicate that he is unworthy of belief by the court. This section indicates four ways in which the credit of a witness may be impeached: Evidence of persons that the witness is unworthy of credit as per section 164(1)(a) , Proof that the witness has been bribed, has accepted the offer of a bribe or has received any other corrupt inducement as per section 164(1) (b) , and Former statements inconsistent with the present Evidence as per section 164(1) (c) .

Generally, It’s clear that cross examination is the heart of the defence case, therefore a good cross examination will help the defendant or accused to destroy the case or claims directed to him while a poor cross examination will drag a defendant or an accused to certain liabilities as imposed by a court

COMPETENCE AND COMPELLABILITY OF SPOUSES

In law of evidence, competence governs the ability of a witness to give evidence at trial. It has to be determined that a witness standing in a court of law is qualified to be ‘heard’ by the court, on the other hand Compellability is a state of a competent witness to be forced to give evidence in court even when he is not willing to do so.

Historically, at common law, many groups of witnesses were regarded incompetent to give evidence. They could not testify even if they could provide potentially important information. Some of these were spouses who could not give evidence for or against each other.

Section 3 of Evidence Act  defines a husband or a wife to mean the spouse of a marriage which is valid according to the written law or customary laws of the United Republic.

According to section 130(1) of Evidence Act , spouses are competent but not compellable witnesses for the prosecution. However, there are exceptions whereby a spouse may be a competent and compellable witness against the other spouse for the prosecution, these are under section 130(2) of the Evidence Act  as the wife or husband whether of a monogamous marriage or not shall be a competent and compellable witness for the prosecution where:-

Firstly, The person is charged with an offence under Chapter XV of the Penal Code Cap. 16(offences against morality) and under the Law of Marriage Act, Cap. 29, secondly The person charged with an act or omission affecting the person or property of husband or any wives of a polygamous marriage of that person or children of either or any of them.

Section 130(3) of evidence Act  requires the court to inform a witness that he or she is not compelled to give evidence against her or his spouse for the prosecution. However, if the provisions of section 130(2) apply, the court will do away with this requirement. Before the court can take evidence of a spouse, it must record that it had complied with the provisions of this section.

In the case of Akechi v. R , the appellant was charged with arson. His wife was called to give evidence for the prosecution. Before she gave evidence trial magistrate asked the appellant whether he has any objection to his wife giving evidence against him. Appellant had none, the wife gave her testimony. It was held: This was not in accordance with the provisions of section 130(3) Evidence Act, that subsection requires the court to address not the appellant but his wife and to inform her that she was under no obligation to testify against her husband but that she may give evidence against him if she choose to do so.

Kisanga, J., said: It is not enough for the court of law to ask the spouse if he/she has objection to the other spouse to testify. The court shall ensure that the spouse is made aware to the provision of subsection (3) of section 130 and that has to be recorded. In Kotia Mwamahusi v. R.  the appellant had two wives and decided to get rid of one of them (he murdered her). At the trial one of the co-wives was compelled to testify. On appeal the conviction was quashed though there were other ample evidence to convict the accused.

Section 130(4)  provides that a spouse is a competent witness for the defence. However, before a spouse can testify for the defence, the husband whether of a polygamous marriage or not, or the wife shall make an application before the court to have his/her spouse testify for him/her. In the case of Mtoakodi v. R. , the appellant had more than one wives. He applied before the trial court for one of the wives to be called as a witness. The trial court said that either he call all of them or none. On appeal: It was wrong for the court to deny him the evidence which is contrary to the provision of section 130(4).

According to section 130 (5)  when a spouse is called to give evidence for the defence and refuses to do so, the court as well as the prosecution on its own discretion may comment on the failure to give evidence for the defence. The protection that is given to spouses in criminal proceedings is not given in civil proceedings, thus according to section 131  a husband or wife is a competent and compellable witness to testify against his or her wife or husband.

Generally, spouses are competent but not compellable witnesses for the prosecution. However, there are exceptions whereby a spouse may be a competent and compellable witness against the other spouse for the prosecution, for example where the person is charged with an offence under Chapter XV of the Penal Code Cap. 16(offences against morality) and under the Law of Marriage Act, Cap. 29.

REFERENCE

BOOKS

Dennis I.,(2010).“the Law of Evidence”, 4th Edition, Sweet and Maxwell, London.

STATUTES

Evidence Act [Cap 6 R.E 2002].

PROPERTY RELATION BETWEEN HUSBAND AND WIFE

Property relation is among legal effect of marriage and it can be viewed into two positions that is in common law context and in Tanzania context.

At common law it is the duty for the husband to maintain the wife and wife can even sue the husband for failure to do so. Even this duty at common law in the past, one a woman was married she was required to surrender all her properties to her husband, since it is the duty of husband to maintain the wife the husband become the trustee of wife’s property.

Due to life stress it was observed that men died earlier than women. When the husband died all the property was vested to wife and children but it arose the problem when the wife was the first to die. That when the wife dies first all the property were vested to children and the property were taken form the possession of husband even if the matrimonial property home is the place where couple usually reside  belong to wife were taken to children. As a result, reforms were made to the law, the law changed and made women property act of [1882] was enacted under this act the position was the married woman has the right to own property obtained prior and after the marriage. [Still the position in UK to date]

In Tanzania context, the property relation is provided under Section 56 of Law of marriage Act  which provide that woman has the right to acquire property as man did and under the law of marriage Act are divided into two:-  

Personal property, provided under section 58 of Law of marriage Act . This section recognizes the existence of separate property of husband and those of wife that is marriage does not change ownership of property acquired before the marriage. It does not prevent spouse from owning, acquiring or disposing property during subsistence of marriage. The case of Abdallah Shamte v Mussa 

Joint property, joint property of married couple includes matrimonial home and other property jointly acquired during subsistence of marriage. Section 2 Law of marriage Act  defines matrimonial home as the building or part of the building which the husband and wife resides together. Matrimonial home is presumed to be under ownership of couple neither of parties can alienate one self without the consent of  the other as per Section 59 (1) law of marriage Act  the same position is reflected under Section 114 of Land Act  [as amended] 2004 according to these provision if there is not such consent from the other part in case of creation of mortgage then the mortgage will be considered invalid in eyes of law. 

The property relation between spouses during subsistence of marriage can be seen in other matrimonial properties and Section 60 of Law of marriage Act  provide for presumption of property acquired during the subsistence of marriage if the property is in the name of husband and wife then there shall be rebuttable presumption that the beneficial interest there in are equal if it is the name of husband alone or wife alone there shall be rebuttable presumption that the property belong absolutely to that person whose name appear to that property.

In the case of Bi Hawa Muhamed vs. Ally Sefu   The appellant and respondent were wife and husband respectively until the dissolution of   their marriage by a court decree of the Primary Court of Ilala District at Kariakoo, Dar es Salaam in 1980. In subsequent proceedings the Primary Court held that the appellant was not entitled to any share in the matrimonial assets as she was a mere wife and that the house was bought by the husband's money. On appeal to the High Court, the Primary Court's decision was substantially upheld. This is a second appeal.

Held: (i) Since the welfare of the family is an essential component of the economic activities of a family man or woman it is proper to consider contribution by a spouse to    the welfare of the family as contribution to the acquisition of matrimonial or family assets;

(ii) the "joint efforts" and 'work towards the acquiring of the assets' have to be construed as embracing the domestic "efforts' or "work" of husband and wife;

(iii) where a spouse commits a matrimonial mis-conduct which reduced to   nothing her contribution towards the welfare of the family and consequential acquisition of matrimonial or family assets she or he would not be entitled to a share in the property.

Law of Marriage Act [CAP 29 R: E 2002]

           

 .         THE RULE ONCE A MORTGAGE ALWAYS A MORTGAGE

                                                AND                                

               MORTGAGE OF MATRIMONIAL HOME IN TANZANIA.

                                                               BY

                              MWAKISIKI MWAKISIKI E

                                                                                              

MORTGAGE OF MATRIMONIAL HOME

It’s the requirement of the law that the mortgage of matrimonial home to be valid by obtaining the consent of both spouses regarding the mortgage of their matrimonial home and the law imposes conditions when a matrimonial home is subject to a mortgage.  This is evident under section 114(1)(a) and (b)  where its stated that the mortgage of matrimonial will only be valid if any document used to grant the mortgage is signed by the mortgagor and the spouse(s) living in that matrimonial home or there is evidence that both or all of them have assented. The same position is reflected under Land Form No 42 (2005) Land Regulations on Mortgage of a matrimonial home. Also the same position is reflected under section 59 of the law of marriage Act  where a Matrimonial home is presumed to be under ownership of couple neither of parties can alienate one self without the consent of the other. 

Also section 114(2)  require the mortgagee to take reasonable steps to ascertain whether the applicant has a spouse(s) and wether they  has consented otherwise he will not be able to exercise his remedies and such reasonable steps are provide under Regulation 4(1) , where among other things if the applicant states that he or she is not married and the mortgagee has reason to believe that, the statement might be incorrect, the mortgagee may require that applicant to produce an affidavit to the effect that the applicant is not married.

Further, the law under Regulation 5 (2) and 5(3)  impose the duty to mortgagee to ensure that the consent given by spouses is genuine and such duty will only be discharged to the part of mortgagee if for example he has ensured that both spouses have received independent advice regarding the term and conditions of the mortgage they have applied for.

Section 8(2) of mortgage Financing (Special Provisions) , impose the responsibility of the mortgagor to disclose that he has a spouse or not and upon such disclosure the mortgagee shall be under the responsibility to take reasonable steps to verify whether the applicant for a mortgage has or does not have a spouse.

In the light of the above arguments and provision of the law  my advice to Aldin who really wants the loan though the Bank wants a spousal consent and he is claiming he is separated from his wife a couple of four years ago is as follows:-

Firstly, Adlin must know that he is only separated from his wife and  he is not divorced and therefore his wife rights for a matrimonial home he wants to Mortgage are still intact as the law of Marriage Act recognizes that spouses maybe separated either by a Court decree or by family arrangements and its upon a person petition for a decree of divorce as per section 99 of the law of marriage Act . However Aldin must bear in his mind that separation is not divorce and during separation there is no distribution of matrimonial assets meaning that his wife’s interest, if any, in the matrimonial home that he wants to mortgage are still intact even though they are not residing under one roof, therefore her consent is of paramount importance unless otherwise the transaction without her consent will be null and void.  Therefore Aldin must remember that unless he is divorced, there is no legal way to go around this unless he locate his wife and obtain her consent for him to mortgage the property. Spousal consent is stressed under the Land Act as per section 114 which requires financial institutions to demand spousal consent prior to taking matrimonial property as security in order to protect the interest of the other spouse.

In the case of Zakaria Barie Bura v Theresa Maria John Mubiru  was a case involving a house jointly owned by the spouses. In an action by the wife for a declaration that the sale of the house by the husband without her consent was void, the court held that the husband had no power to sell the house because it was jointly owned by the two spouses. Similarly in Mtumwa Rashid v Abdallah Iddi and Salum Omari  the Court of Appeal held the sale of a matrimonial home jointly owned without the knowledge and consent of the other spouse void.

Secondly, In obtaining his wife consent Aldin must ensure that his wife give the consent without undue influence or misrepresentation, in case Aldin induce his wife to secure her consent then in this regard, the wife may pray for the court’s assistance pleading undue influence of the husband or misrepresentation of the full implication of the transaction by the husband. The position is that a wife who has been induced to enter into a transaction by undue influence or misrepresentation of her husband, in certain cases, may be entitled to set aside that transaction against the wrongdoer husband. The case of Barclays Bank Plc v O’Brien and Another  illustrates the matter. In this case the husband charged the matrimonial home jointly owned as a guarantee for his liability for an overdraft to the bank. The wife signed the documents but was not advised of the legal nature of the charge created nor did she read the contract. In an action by the bank for the possession of the house, the court rejected the claim of general undue influence by the husband holding that the question of undue influence is determined from case to case.

Thirdly, since he wants that loan badly, and if it will be hard for him to secure his wife consent then there other options that are available to him, the other way around this is to locate another security like chattels or third party mortgages by other persons. The provision of section 113(2)  acknowledge the possibility of creating a third party mortgage and  section 2 of the same Act defines a third party mortgage to mean a mortgage which is created or subsists to secure the payment of a debt or the fulfilment of a condition by a person who is not the mortgagor, whether or not in conjunction with the mortgagor. Therefore a third party mortgage will be an alternative to Aldin if it will appear difficult for him to locate his wife and secure her consent.

Fourthly, Aldin must know that the law of Marriage recognizes that although a landed property maybe under the name of one spouse, the other spouse may have contributed to the acquisition, maintenance and or securing of that property although the interest(s) of the other spouse may not be registered as it was held in the case of Bi Hawa Muhamed vs. Ally Sefu , Matrimonial home is presumed to be under ownership of couple neither of parties can alienate one self without the consent of the other section 59 (1) law of marriage Act  the same position is reflected under Land Act Section 114  according to these provision if there is not such consent from the other part in case of creation of mortgage then the mortgage will be considered invalid in eyes of law. 

Fifthly, since the mortgagee (NMB Bank) require Aldin to show the consent of his wife though he is claiming to be separated from his wife a couple of four years ago, what Aldin is required to do is that, since he is claiming that he is not married and mortgagee is believing that his statement is not true then Aldin is required to produce affividavits to support his allegations as per Regulation 4(1)(c) , where it’s stated clearly that once an applicant states that he is not married and the mortgagee is for the reason that his statement is incorrect then the applicant is required to produce affidavits to support his claim. However Aldin must be careful to do not produce false information to the mortgagee in relation to the existence of spouse as he will be committing an offence and he will be liable to a fine of not less than one half of the value of the loan money or to imprisonment for a term of not less than twelve months as per section 8(4) of mortgage Financing (Special Provisions) .

Finally, since Aldin wants the loan that badly he may consider severance of interest in matrimonial home where for this purpose, severance of interest in the matrimonial home is used to describe the process in which a spouse deals with his or her interest in the house without the consent of the other. It however doubtful whether a spouse by severing his interest in the matrimonial home can deal with his or her interest in the house without infringing the conditions laid down under section 114 (1) of the Land Act, as amended in 2004 or section 159 (4) of the Land Act. In Thames Guaranty Ltd v Campbell and Others , a husband and wife jointly purchased a home but before registration of the transfer to them as joint tenants was complete the plaintiff company agreed with the husband by letter to grant him a loan secured on a charge of the land. The wife did not consent to the charging of the property and at the time of the agreement the company did not know and could not have known that the transfer of the property was to be to the husband and wife as joint tenants. The court stated the law regarding severance of the beneficial interest by the husband stating: “Mr Campbell (husband) did have power, without the wife’s concurrence, to sever the beneficial joint tenancy in the property and to dispose of his severed beneficial interest in such manner as he thought fit.”

Generally, under the presiding scenario it’s clear that Aldin must obtain his wife consent to secure a mortgage since the two are under separation and not divorced a thing that show there is subsistence of a marriage and therefore his wife interest on a matrimonial properties are still intact until they two are divorced.

THE RULE ONE A MORTGAGE ALWAYS A MORTGAGE

The rule once a mortgage always a mortgage denotes that once a transaction is categorised as a mortgage any provision that is inconsistent with the mortgagor’s right to have a reconveyance of the property upon payment of the mortgage sum and fulfiling certain conditions is invalid. Any attempt to prevent a reconveyance is said to be a “clog on the equity of redemption”.   Therefore the mortgagor cannot be prevented from redeeming the property free from all conditions or stipulations in the mortgage and there should not be terms to give advantage to the mortgagee in addition to the security. Any advantage must cease when the mortgage is redeemed. 

Section 128  stipulate that any provision in the mortgage deed which prevent redemption is repugnant and therefore void, hence, ‘Once a mortgage always a mortgage.’ One cannot turn the transaction into something else or there must be no clog or fetter on the equity of redemption. 

Lord Lindley In Samuel v. Jarrah Timber and Wood Paving Corporation  provided a profound meaning of the rule and argue that the doctrine means that no contract between a mortgagor and a mortgagee made at the time of the mortgage and as part of the mortgage transaction, or, in other words, as one of the terms of the loan, can be valid if it prevents the mortgagor from getting back his property on paying off what is due on his security. Any bargain which has that effect is invalid, and is inconsistent with the transaction being a mortgage. 

The common law stand on mortgages that if by the due date the mortgagor has not been able to redeem his or her land, that is repay the loan advanced together with the interest on the loan, the security goes to the mortgagee. Not only this but also the mortgagor will remain liable for the (usual) that is usury rate of interest, and principal sum. However it has been checked with equity and therefore non-repayment of the loan and the interest thereon does not automatically lead to conveyance of property to the mortgagee. 

Equity position is similar to the provisions set up in Section 57 to 62 of Land registration Act  These statutory provisions have been translated as meaning “once a mortgage always a mortgage” that is the mortgagor should be given every chance to redeem his or her land.  Similarly the provision of section 116 of Land Act  emphasize that a mortgage shall have effect as a security only and shall not operate as transfer of any interests or rights in the land from the mortgagor to the  mortgage.

The basic principle is that a “mortgage cannot be made irredeemable”. Equity will not allow any provisions or devices that allow this to occur. The long established rule is that a mortgagee cannot as part of the mortgage transaction take an option to purchase the mortgaged property as this would give the mortgagee the “power to extinguish the equity of redemption”. The rule will only be applied where the right to acquire the equity of redemption is granted as part and parcel of the mortgage transaction. 

Generally, from the rule once a mortgage always a mortgage the following principles can be deduced:-

The mortgage must not be irredeemable,  This principle is provided for under paragraph (a) of section 121 (1) . The provision states in effect that any agreement or provision in the mortgage instrument or otherwise which purports to deprive the mortgagor of the right to redeem shall be void. The provision simply stresses the well established principle, once a mortgage always a mortgage. It facilitates the possibility of the mortgagor redeeming the mortgaged land at any time after the contractual date despite the stipulations in the mortgage instrument which vest an absolute interest of the mortgaged land in the mortgagee on default. 

The application of the principle was amply clarified in Samuel v Jarrah Timber and wood paving cooperation . The House of Lords after concluding that the transaction was a mortgage with an option to purchase stated once it was established that a transaction was a mortgage transaction, the mortgagee would have the mortgagee’s rights and the mortgagor, his rights. The court clarified the application of the doctrine “once a mortgage, always a mortgage”. It stated the doctrine meant that no contract between a mortgagor and mortgagee made at the time of the mortgage and as part of the mortgage transaction, or, in other words, as one of the terms of the loan, could be valid if it prevented the mortgagor from getting back his property on paying off what was due on security. Any bargain which had that effect was invalid, and was inconsistent with the transaction being a mortgage.

There must not be a clog or fetter on the equity of redemption, A clog or fetter is a repugnant condition in a mortgage. It is a provision inserted to prevent redemption on payment of the debt or performance of the obligation for which the security was given. In its historical development, the relief based on the doctrine was afforded to the mortgagor by equity. Equity would afford the mortgagor the right to redeem on payment of the principal, interest and costs despite terms in the contract to the contrary. The doctrine is rooted in the same doctrine “once a mortgage always a mortgage”. It overrules and disregards clear terms of the contract.  The principle is provided for under paragraph (b) of section 121 (1) of the Land Act . As a result if the obligation under the mortgage is payment of a debt, the security is redeemable on the payment of the debt despite a clog or fetter in the mortgage. Similarly, if the obligation is performance of a condition, the mortgage is redeemable upon performance of that condition.

In the case of Santly V Wilde (1899) , Lord Lindley considered the nature of a mortgage and said: ‘The principle is this: a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt, or the discharge of some other obligation for which it is given. This is the idea of a mortgage; and the security is redeemable on the payment or discharge of such debt or obligation, any provision to the contrary notwithstanding. That, in my opinion, is the law. Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of redemption, and is therefore void. It follows from this that ‘once a mortgage always a mortgage, Lord Lindley MR said: ‘a clog or fetter is something which is inconsistent with the idea of security; a clog or fetter is in the nature of a repugnant condition.

There shall not be a collateral advantage which is unfair and unconscionable or inconsistent with the right of redemption, A collateral advantage has the effect of giving the mortgagee advantages, benefits or power over the mortgagor in addition to those ordinarily provided for in the mortgage. For a long time at common law, the mortgagee could not stipulate for a collateral advantage. But the position was altered and the established position is that collateral advantages may be stipulated by the mortgagee provided they are not unfair, or oppressive, or unconscionable or have the effect of clogging the right to redeem.  Stipulation for collateral advantages is provided for under paragraph (c) section 121 (1) of the Land Act , That paragraph provides that any provision in the mortgage instrument or otherwise which stipulates for a collateral advantage which is unfair and unconscionable and inconsistent with the right to discharge shall be void. The principles also laid down from section 68-71 of the Land Act  can also be taken into consideration. In Kreglinger vs New Patagonia Meat Co Ltd  it was stated that no rule of equity that precludes the mortgagee from creating collateral advantages but must cease on redemption. 

In Fairclough vs Swan Brewery Co Ltd  a clause to postpone the date of redemption of a mortgaged lease after the expiry of 20 years to 6 weeks was deemed to render the equitable right to redeem illusory and hence void unless there was a bargain between the two parties on equal footing even if it just postpone redemption for a considerable period.

The only way in which a person could override the equitable right to redeem is by obtaining a decree of foreclosure. This was an order of the court instigated by the mortgagee’s application to extinguish the equitable right to redeem. This had the effect of leaving the mortgagee with an absolute title to the property. However, if the property was more valuable than the debt owed, the court would order a sale of the property out of which the mortgagee would receive the money due to him and the balance will devolve to the mortgagor. 

Generally, the rule denotes that mortgage should remain as the security upon payment of sum of money or meeting certain condition sets in the mortgage and therefore it should not turn into deed or anything else and also it should not contain  terms that give advantage to mortgagee to take possession of the mortgaged property and bars the mortgagor from redeeming his property.

REFERENCE

BOOKS.

Mwaisondola, N.G. (2007). The modern law of mortgage in Tanzania. The role of land Act 1999. Birmingham University press: Birmingham

Thompson, M. (1995). Fundamental Principles of Law: Land Law.(1st ed). London: Sweet 

and Maxwell Ltd

Tenga, W.R (2008). Manual on Land Law and Conveyancing in Tanzania. University of Dar es salaam.

STATUTE.

Land Act as amended 2004

Law of marriage Act  [Cap 29 R.E 2002]

Land (Mortgage) Regulations [2005].

Land registration Act  [Cap 334 R.E 2002]

Land Act [Cap 113 RE 2002.]

Mortgage Financing Act (Special Provisions) of 2008.