CONSIDERATION IN CONTRACT LAW

Consideration in English law is one of the three main building blocks of a contract. Consideration can be anything of value (such as an item or service), which each party to a legally binding contract must agree to exchange if the contract is to be valid. If only one party offers consideration, the agreement is not legally a binding contract. In its traditional form, consideration is expressed as the requirement that in order for parties to be able to enforce a promise, they

must have given something for it (quid pro quo): something must be given or promised in exchange or return for the promise. A contract must be “met with” or “supported by” consideration to be enforceable; also, only a person who has provided consideration can enforce a contract. In other words, if an arrangement consists of a promise which is not supported by consideration, then the arrangement is not a legally enforceable contract. Mutual promises constitute consideration for each other. (“I promise you to do X, in consideration for which promise you promise me to do Y”).

Consideration for a particular promise exists where some right, interest, profit or benefit accrues (or will accrue) to the promisor as a direct result of some forbearance, detriment, loss or responsibility that has been given, suffered or undertaken by the promisee. The consideration must be executory or executed, but not past.

Consideration is executory when a promise to do something in the future is given in exchange for another promise to be done in the future. Consideration is executed when a promise is actually executed, in exchange for another promise to be executed in the future. Consideration is past when a promise has been given or executed before and independently of the other promise. For example, I promised to take you to lunch, and then when we got there I said “you must pay, because I have given you the benefit of my company”. This is past consideration and therefore NO consideration.

Consideration can be anything of value (such as an item or service), which each party to a legally binding contract must agree to exchange if the contract is to be valid. If only one party offers consideration, the agreement is not legally a binding contract. In its traditional form, consideration is expressed as the requirement that in order for parties to be able to enforce a promise, they must have given something for it (quid pro quo): something must be given or promised in exchange or return for the promise. A contract must be “met with” or “supported by” consideration to be enforceable; also, only a person who has provided consideration can enforce a contract. In other words, if an arrangement consists of a promise which is not supported by consideration, then the arrangement is not a legally enforceable contract. Mutual promises constitute consideration for each other. (“I promise you to do X, in consideration for which you promise me to do Y”).

For consideration to be good consideration, it must be of some value, even if it is minimal value. There is no requirement that the consideration be commensurate in economic terms to the original promise. Nominal consideration will suffice as good consideration for a contract, Courts will not measure the adequacy of the consideration as it is up to the parties to decide the subjective worth of each promise.

Chappell & Co Ltd v. Nestle Co Ltd [1960] AC 87, Lord Somervell, ‘A contracting party can stipulate for what consideration he chooses. A peppercorn does not cease to be good consideration if it is established that the promisor does not like pepper and will throw away the corn.’

How does consideration become acknowledged by the courts?

Consideration, in some way, must be acknowledged, and the legal term for this is ‘sufficient’, therefore the consideration must be sufficient and is usually of monetary value. Another legal term used here is ‘adequate’, this means fair price. However, the consideration does not need to be adequate, but needs to be sufficient to form a contract. An example of this occurred in the case of Thomas v Thomas (1842), where the decision was made that a woman was allowed to reside in a property for £1 a year.

Consideration must be given at the time of agreement, but it does not include previous acts. For example, in the case of Re McArdle (1951), previous work was not seen as consideration in that particular contract for a future arrangement. However, if there is an agreement between parties that previous work is to be included, then that consideration would be seen as valid, this was apparent in Lampleigh v Braithwaite (1615) an in Re Casey’s Patents (1892).

Consideration in a contract must not be illegal, in the case of Foster v Driscoll (1929), this is where goods were smuggled into the USA, and therefore the consideration became illegal.

Consideration should not be a duty which exists currently. For instance, in the case of Collins v Godefroy (1831), a lawyer who attended court as a witness, could not also agree to appear in court. Another case is Stilk v Myrick (1809), this is where sailors had a duty to sail the ship short-handed, therefore, when they promised the captain they would do this, this was not a consideration because it was their duty to do this anyway.”””’

There must be some kind of connection between a promise and the consideration offered to support the promise. It is no consideration to “refrain from a course of conduct which it was never intended to pursue” (Arrale v Costain Civil Engineering Ltd [1976] 1 Lloyd’s Rep 98). The consideration must have been at least an inducement to enter into the promise.

This requirement also imposes a restriction on conditional gifts. This test is an objective test – whether a reasonable person in the position of the offeree would perceive it as a gift as opposed to an offer. For example, the payment of $10,000 for the switching of a television channel is not met with consideration.

Callisher v Bischoffsheim (1870) LR 5 QB 449, forbearance to sue in a groundless action still good consideration; honest mistake.

How does consideration become acknowledged by the courts?

Consideration, in some way, must be acknowledged, and the legal term for this is ‘sufficient’, therefore the consideration must be sufficient and is usually of monetary value. Another legal term used here is ‘adequate’, this means fair price. However, the consideration does not need to be adequate, but needs to be sufficient to form a contract. An example of this occurred in the case of Thomas v Thomas (1842), where the decision was made that a woman was allowed to reside in a property for £1 a year.

Consideration must be given at the time of agreement, but it does not include previous acts. For example, in the case of Re McArdle (1951), previous work was not seen as consideration in that particular contract for a future arrangement. However, if there is an agreement between parties that previous work is to be included, then that consideration would be seen as valid, this was apparent in Lampleigh v Braithwaite (1615) an in Re Casey’s Patents (1892).

Consideration in a contract must not be illegal, in the case of Foster v Driscoll (1929), this is where goods were smuggled into the USA, and therefore the consideration became illegal.

Consideration should not be a duty which exists currently. For instance, in the case of Collins v Godefroy (1831), a lawyer who attended court as a witness, could not also agree to appear in court. Another case is Stilk v Myrick (1809), in which sailors were under a duty to sail a ship back to port. In the circumstances, it became apparent that they would have to do this short handed, and the captain promised them extra payment if they got the ship home on schedule. When the captain refused to pay, the sailors sued him, and it was held that their promise to perform their existing obligation to sail the ship home was not good consideration for the captain’s promise to pay them more. Therefore, the sailors could not enforce the captain’s promise to pay them the additional sums.

A promise is enforceable if it is supported by consideration, that is, where consideration has moved from the promisee. For example, in the case of Tweddle v Atkinson, John Tweddle promised William Guy that he would pay a sum of money to the child of William Guy, and likewise William Guy promised John Tweddle that he would pay a sum of money to the child of John Tweddle, upon the marriage of the two children to each other. However, William Guy failed to pay the son of John Tweddle, who then sued his executors for the amount promised. It was held that the son could not enforce the promise made to his father, as he himself had not actually given consideration for it – it was his father who had done so instead. The son didn’t receive any consideration, so he cannot enforce the promise. This particular rule of consideration forms the basis of the doctrine of privity of a contract, that is, only a party to a contract is permitted to sue upon that contract’s terms. (Note that the doctrine of privity has been somewhat altered by the Contracts (Rights of Third Parties) Act 1999.) Therefore consideration from the promisee was indulgent of the claim. Although consideration must move from the promisee, it does not necessarily have to move to the promisor. The promisee may provide consideration to a third party, if this is agreed at the time the parties contracted (see Bolton v Madden).

The offeree must provide consideration, although the consideration does not have to flow to the offeror. For example, it is good consideration for person A to pay person C in return for services rendered by person B. If there are joint promisees, then consideration need only to move from one of the promisees. (see Price v Easton)

f the promisee provides what he was required by public law to do in any event in return for a promise, promised performance of existing duty is not good consideration. In Collins v Godefrey Godefrey promised to pay Collins for his giving of evidence. It was held that Collins could not enforce the promise as he was under a statutory duty to give evidence in any event.

However, if the promisee provides more than what public duty imposes on him, then this is good consideration. In Ward v Byham a mother was under a statutory duty to look after her child. The ex-husband promised to pay her £1 a week if she ensured that the child was well looked after and happy. It was held that notwithstanding the statutory duty imposed on the mother, she could enforce the promise since the act of keeping the baby ‘happy’ provided additional consideration.

Glasbrook Ltd v Glamorgan County Council [1925] AC 270

Promising to perform a pre-existing duty owed to one’s contracting party also fails to make good consideration. However this rule has been considerably narrowed by recent case law. The general rule is that if a creditor promises to discharge a debt in return for a fraction of payment, in paying the agreed fraction, the promisee is not providing consideration for the promise, as this is merely part performance of a contractual duty already owed. Consequently, the debtor is still liable for the whole amount, as he cannot force the promisor to accept less. A leading example is in Stilk v Myrick. Stilk, a seaman, agreed with Myrick to sail his boat to the Baltic Sea and back for £5 per month. During the voyage, two men deserted. Myrick promised he would increase Stilk’s wages if Stilk agreed to honour his contract in light of the desertions. Stilk agreed and on return to port, Myrick refused to pay him the extra wages. It was held that Myrick’s fresh promise was not enforceable as the consideration Stilk had provided for it, the performance of a duty he already owed to Myrick under contract, was not good consideration for Myrick’s promise to increase his wages.

Initially, there were only two exceptions to this rule:

Hanson v Royden, the promisee has done, or has promised to do, more than he was obliged to do under his contract.
Hartley v Ponsonby before the fresh promise was made, circumstances had arisen which would have entitled the promisee to refuse to carry out his obligations under his contract.

However, the strictness of this rule was severely limited in Williams v Roffey Bros & Nicholls (Contractors) Ltd. The Roffey Brothers entered into a contract to refurbish a block of flats for a fixed price of £20,000. They sub-contracted carpentry work to Williams. It became apparent that Williams was threatened by financial difficulties and would not be able to complete his work on time. This would have breached a term in the main contract, incurring a penalty. Roffey Brothers offered to pay Williams an additional £575 for each flat completed. Williams continued to work on this basis, but soon it became apparent that Roffey Brothers were not going to pay the additional money. He ceased work and sued Roffey Brothers for the extra money, for the eight flats he had completed after the promise of additional payment. The Court of Appeal held that Roffey Brothers must pay Williams the extra money, as they had enjoyed practical benefits from the promise they had made to Williams. The benefits they received from it include: Having the work completed on time, not having to spend money and time seeking another carpenter and not having to pay the penalty. In the circumstances, these benefits were sufficient to provide consideration for the promise made to Williams of additional payment. It now seems that the performance of an existing duty may constitute consideration for a new promise, in the circumstances where no duress or fraud are found and where the practical benefits are to the promisor. The performance of an existing contractual duty owed to the promisor is not good consideration for a fresh promise given by the promisor. However, performance of an existing contractual duty owed to a third party can be good consideration, see further below.

According to the Court of Appeal, it is unlikely that either avoiding a breach of contract with a third party, avoiding the trouble and expense of engaging a third party to carry out work or avoiding a penalty clause in a third party contract will be a “practical benefit”. In Simon Container Machinery Ltd v Emba Machinery AB, the practical benefit was held to be the avoiding of a breach of contract, which was clearly not an extension of the principle.

This is true unless the debtor provided fresh consideration for the promise. The following, mentioned in Pinnel’s Case itself and confirmed by Sibree v. Tripp, may amount to fresh consideration:

If the promisee offers part payment earlier than full payment was due, and this is of benefit to the creditor;
If the promisee offers part payment at a different place than where full payment was due, and this is of benefit to the creditor; or,
If the promisee pays the debt in part by another chattel (note, however, that part payment by cheque, where full payment was due by another means, is not consideration (see D & C Builders Ltd v. Rees)).

Another exception is that part payment of the debt by a third party as consideration for a promise to discharge the creditor from the full sum, prevents the creditor then suing the debtor for full payment (see Welby v Drake).

The Court of Appeal, in Re Selectmove Ltd stated that the practical benefit doctrine arising from Williams v Roffey cannot be used as an additional exception to the rule. In that case, it was held that the doctrine only applies where the original promise was a promise to pay extra and not to pay less. It should be noted, however, that the Court of Appeal in Re Selectmove were unable to distinguish Foakes v. Beer (a House of Lords decision), in order to apply Williams v Roffey (Court of Appeal). It therefore remains to be seen whether the House of Lords would decide this point differently. In any event, the equitable principle of promissory estoppel may provide the debtor with relief.

Atlas Express Ltd v Kafco [1989] QB 833
Consideration for a promise can be the performance of a contractual duty owed to someone other than the promisor (see Shadwell v Shadwell; confirmed by The Eurymedon). In Shadwell, Shadwell was under a contractual duty with a third party to marry. Shadwell’s uncle promised to pay him £150 per year after he was married. It was held that Shadwell marrying was good consideration, notwithstanding that he was obliged by a contract with a third party to marry in any event.

A promise to perform a pre-existing contractual duty owed to a third party (as opposed to the performance of that duty) may also amount to consideration (Pau On v Lau Yiu Long).

Shadwell v Shadwell (1860) 9 CBNS 159; 42 ER 62
New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd [1975] AC 154

For more consultation on contract law kindly contact
Stephen Tumaini Mduma
Chief Executive Officer
SEMKO CONSULTANTS LTD
P.O.BOX 12027
Dar es Salaam
Tanzania
+255 713 00 00 96
email;sempaimduma@yahoo.com
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FOB CONTRACTS

F.O.B. CONTRACTS:

Acronym for ‘free on board’; a contract whereby the seller of goods agrees to absorb the costs of delivering the goods to the purchaser’s transporter of choice.

The term FOB is a frequent feature of contracts for the sale of goods, especially when the goods are to be delivered to a foreign destination.

In 1879, a china clay merchant offered to buy clay “at 15s. per ton FOB Fowey”. The merchant went bankrupt after the clay supplier had delivered the clay to the port of Fowey, England, as per the FOB agreement. The case went before Justice Bacon who wrote, in Ex parte Rosevear China, and in an era when land transportation was by horse and cart:

“Delivery free on board (FOB) only means the price shall be that which we stipulate for, and you shall not have to pay for the wagons or carts necessary to carry the clay from the place where it is dug. We will bear all those charges and put it free on board the ship, the name of which you are to furnish.”

In a 1921 case, Colley v Overseas Exporters, Justice McCardle added an essential point of FOB contracts where the FOB is to a vessel:

“It seems clear that in the absence of special agreement the property and risk in goods does not in the case of an f.o.b. contract pass from the seller to the buyer till the goods are actually put on board.”

In contemporary international trade, the term continues with its traditional meaning: the vendor pays for delivery of the goods not just to the port, vessel, train, vehicle or ship of the purchaser’s designation, but also any loading costs. In most contracts, the moment of passing of risk is defined as the moment the goods pass the ship’s rail at the port of loading. For example, reference may be made to “FOB New Orleans” or “FOB Baie-Comeau”.

Over time, and in the context of contractual negotiations, some varieties of FOB are in use, as explained by Yale Law School professor Grant Gilmore in his 1975 book The Law of Admiralty:

“In a shipment FOB, the risk passes to buyer at the FOB point.

“If the contract term is FOB At Seller’s Factory, the buyer bears the risk of loss during transit. The seller completes his performance when he delivers conforming goods to the carrier. The price quoted does not include freight.

“Contrariwise, if the term is FOB Point of Destination, seller bears the risk during transit, completes his performance only by tender at that point, and the price quoted usually includes freight.”

References:

FOR MORE CONSULTATION PLEASE CONTACT:

Stephen Tumaini Mduma
Chief Executive Officer
SEMKO CONSULTANTS LTD
P.O.BOX 12027
Dar es Salaam
Tanzania
+255 713 00 00 96
email;sempaimduma@yahoo.com
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C.I.F. CONTRACTS AN “INDISPENSIBLE INSTRUMENT OF SEA-BORNE COMMERCE.”

C.I.F. Contracts an “indispensible instrument of sea-borne commerce.”

The great majority of international shipping contracts come under either as c.i.f contracts or f.o.b. contracts. The initials c.i.f. stand for cost, insurance and freight. but the distinction is that this contract is in addition to a cost contract in the sale of goods. that is, to say this contract is in additional to a main co

ntract for sale. the cost for carriage of goods is contemplated in addition to the cost of goods and the remarkable thing is that this contract is not executed severally from the main contract. here, the seller makes two subordinate contracts being contract for affreightment and contract of insurance. according to David M. Sassoon and H. Oren Mermen, “C.I.F. and F.O.B. Contracts”, Stevens &Sons Ltd. of London, third Edition 1984 “it is known as c.i.f. contract, for the price which the buyer has to pay is the cost of the goods, together with the insurance of the goods during transit and the freight to the port of destination”.
It is not just the buyers and sellers in the picture but sometimes a variety of persons like forwarding agents, banks acting for either the buyers or seller or even the intermediaries. One of the earliest judicial definitions to C.I.F. contracts were given in 1872 by Lord Blackburn in the case of Ireland v. Livingston(L.R. 5 H.L.395). The essence of this contract lies in the delivery of the goods. Interestingly, the delivery unlike in sale of goods, here is determined by actual delivery of documents. Documents means the right to have the goods delivered or the possible right, if they are lost or damaged by, of recovering the goods valve from the ship-owners or underwriters. Then, the question arises is CIF contract only a sale of documents and not a sale of goods? The answer is in the negative. This is because these documents are the measure of buyer’s rights and seller’s duty that the buyer can in no way refuse the documents and ask for the actual goods. The salient characteristic of a c.i.f. contract is that “the property in the goods not only may but must pass by delivery of the documents against which payment is made”.
In Sanders v. Maclean[(1883) 11 Q.B.D. 327 at p. 341.]. Bowen L.J. stated that the delivery in a C.I.F. contract is constructive i.e. it gives the buyer “the key to the warehouse”. The Learned Judge meant that the transfer of bill of lading along with the insurance policy, places the goods at the disposal of the owner.

Evolutions in Modern Day

The concept of “Open or Floating Policy of Insurance” helps the seller to declare that the goods on board are at a risk at any particular time thereby reducing his risk liability.

Advantages of C.I.F. Contract

The seller has the advantage of receiving the transacting money well in before the goods actually reach the buyer. the advantage of the buyer is that he has a substantial right once he gets the documents of sale and he may still reject the goods on their actual delivery if they turn out to be not in conformity with the standards he had prescribed. The risk which he takes is that the loss or damage of goods may not be covered by the bill of lading or insurance policy.

Question of point of time in passing of property.

According to the general rule the property and the risk passes at the same time but this is not the usual case in a c.i.f. contract. Under a c.i.f. contract, the buyer is in effect the insurer, as of the time of shipment. The transfer to him of the bill of lading and the policy of insurance giving him the right of action in respect of loss or damage to the goods has the effect of placing the goods at his risk on and after shipment[ Tregelles v. Sewell(1862) 7 H&N. 574] . But the property in the goods may not, and generally does not, pass on shipment. It very often will not pass until tender and payment. The moment at which the property passes is entirely a matter of intention which can be gathered from the terms of the contract, the parties’ conduct and according to the circumstances of the case.

In Preeti Tex v. The Income Tax Officer, 2008 304 ITR 266 Chennai it was held that if in the meantime the buyer obtains the documents, the goods are lost neither the buyer nor the seller is put to loss but the owner at that time whoever he is can recover it from the insurer.

Conclusion

What is the need of the hour is not the conflict of laws with respect to the laws in c.i.f. and f.o.b. especially in international trade. Conflicting laws can create situations of confusion and anxiety in the minds of traders. The International Chamber of Commerce (the ICC) and its definitions in INCOTERMS and its chart of responsibility can resolve disputes by making the internationally accepted terms clear. Moreover, the governments of the states all over the world should achieve uniformity in international sales law by negotiating international conventions.

For more consultation
please contact:
stephen Tumaini Mduma
Chief Executive Officer
SEMKO Consultants Ltd
0713 00 00 96

RIGHT TO DAMAGES FOR BREACH OF PROMISE OF MARRIAGE

Dear readers,

I know that we always make promises, particularly for those who have not entered into marriage, to marry. However, i am afraid if we are conversant enough on the legal effects of those promises. Our law is not silent on this concept. The law of Marriage Act, Cap 29 RE:2002, under s. 69 (1) (hereinafter the law) covers it. The law empower a person to bring a suit in the court with competent jurisdiction for damages for the breach of a promise of marriage.

Further, the said promise should be made in Tanzania, although the breach may be occurred in Tanzania or elsewhere. The person who suppose to institute the suit is either the aggrieved party or, where that party is below the age of eighteen years, by his or her parent or guardian. However, the law prohibits the institution of the suit for the breach of promise to marry against a party who, at the time of the promise, was below the age of eighteen years. The aggrieved party has to note at the time of instituting that suit, that, the court will  not award damages in excess of loss actually suffered as a result of expenditure incurred as a direct result of the promise.

Let it be noted that, the law recognizes the promises made outside Tanzania in that a suit may similarly be brought in respect of the breach of the said promise but only if such an action would lie under the law of that country as well as under our law. On the other hand, the law prohibits the institution of the suit for specific performance of a promise of marriage.

Further, under s. 70 of the law, the time which a person may institute  the suit for breach of promise of marriage, is limited to not more than one year after the date of the breach. 

For more consultation contacts:

Stephen Tumaini Mduma
Chief Executive Officer
SEMKO CONSULTANTS LTD
P.O.BOX 12027
Dar es Salaam
Tanzania
+255 713 00 00 96
email;sempaimduma@yahoo.com
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MINOR AND TORTS LAW

In tort, a minor may sue by using an adult, who may be his parents or guardians who technically are known as next friend.  One of the most interesting areas is where a child sues to claim damages for injuries sustained in his mother’s womb through another’s alleged negligence. For example see the Congenital Disabilities (Civil Liability) Act, 1976 where it gives child when born the right to sue for damages in tort if born disabled as a result of another’s negligence which affected either parent in his ability to have a normal healthy child, or affected the mother during her pregnancy.

Further, in torts, a minor can be sued as any other person in that the defence of infancy is not applicable. However, there are exceptions to this rule. These include:

i. Where a tort involving negligence or malice, it may be concluded in cases of extreme infancy that the child can not form the necessary intent.

ii. In cases, involving negligence, a very young child can not be expected to exhibit the same standard of care as an adult.

iii.   A minor may not be liable in tort where such action would merely be an indirect way of enforcing against him a contract on which he would not be liable. The same established in the case of R. LESLIE LTD v. SHEILL[1]. In this case Sheill who was minor, borrowed money from R. Leslie Ltd., by fraudulently representing that he was of age of majority. It was held that he was not liable in tort of deceit or on any other ground since judgement against him would amount to indirect enforcement of the loan contract.

It is worth to note that, generally a parent or guardian is not liable for the torts of a child. However, there are almost two exceptions to the above;

i. The parent may be vicariously liable for the torts committed by the child, where the child is employed by the parent.

ii. The parent may be liable in negligence if he has permitted or expressly authorized the child to do something harmful to others.

For example in the case of BEBEE V. SALES[2], a father who gave his 15 years old son an airgun and allowed him to retain it after he had smashed a neighbour’s window with it, was hel liable when the child later injured the eye of another boy with the gun.

For torts law contacts;

Stephen Tumaini Mduma
Chief Executive Officer,
SEMKO Consultants Ltd,
P.O.BOX 12027
Dar es Salaam
Phone: 0713 00  00 96/ 0756 48 20 60
Email: sempaimduma@yahoo.com/ semkoconsultants@yahoo.com
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[1] [1914] 3 KB 607

[2] [1916]

DISPOSITION AND FAMILY LAW.

Family law is the area of the law that deals with one of the most central and personal aspects of society–the family. If you are considering a career in family law, the significance of this area of law might be one thing that attracted you to the area. Family law deals with what are highly emotional issues objectively and legally. Despite the strength of emotion involved in many family law cases, justice must still be served to each party.

Marriage

  • Marriage is a time for celebration, and one of the more positive aspects of practicing family law. Couples may seek legal counsel prior to their marriage to discuss their assets as well as what would happen in the event of a divorce. If a married couple wants to negotiate some terms of an eventual divorce before marriage, this is a prenuptial agreement. If they discuss the way their assets will be handled in the event of a divorce after they are married, it is called a postnuptial agreement. Legally, these agreements protect both parties and prevent (potential) later negotiations. They can also give each member of the couple peace of mind, knowing that even if there were harsh feelings between the couple, each would still be treated fairly by the other. While getting a prenuptial agreement might come off as cryptic or negative, it can actually increase trust in the relationship and lessen fears of divorce.

Divorce

  • Divorce is the legal end of a marriage. Family lawyers have to deal with people when they are in one of the worst situations they have ever encountered. Emotions can run very high, and the reasons for divorce may be conflicting between the members of the couple. Part of family law is mediating the couple and helping them deal with their emotions so that a rational and just end to the marriage can be brought about.

Child Custody and Support

  • In the case of a divorce, or in the event of any abuse or mistreatment of the children, child custody may need to be negotiated. Family law is important to the lives of many children whose fates are decided by the legal system. Family law is also the area of law that makes sure child support is paid by the obliged parent. Child support may be paid by a parent that has shared custody of the child or by a parent that has no custody rights to the custodial parent. Child support and child custody can be included, but cannot be officially negotiated under the terms of a prenuptial or postnuptial agreement because the court has the ultimate decision in this matter. The court can take the document into consideration but is not legally required to follow the agreement as to child custody and support.

 

Child Advocacy

  • In some cases, family lawyers may have to represent children in court who have been abused or neglected by their parent or guardian. Some family lawyers may specialize in child advocacy. Such attorneys may work as public defenders, in human services agencies or public policy, for example. Family lawyers have the opportunity to use their knowledge of the law and child advocacy to publish research in the area of children’s law and even influence the law.

Estates

  • In the case of a divorce or under the terms of a prenuptial or postnuptial agreement, the assets of the two people involved in the dispute or negotiation may be divided. Family lawyers must work with both people in a fair and just manner and divide the assets legally and justly.

FOR FAMILY LAW ISSUES CONTACT

Stephen Tumaini Mduma
Chief Executive Officer
SEMKO CONSULTANTS LTD
P.O.BOX 12027
Dar es Salaam
Tanzania
+255 713 00 00 96
email;sempaimduma@yahoo.com
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TORT LAW: MALICIOUS PROSECUTION.

TORT LAW: MALICIOUS PROSECUTION.

Actions for malicious prosecution are not favored in law. In regard to criminal prosecutions, public policy favors the exposure of crime, which a recovery against a prosecutor or a citizen filing a complaint about a crime tends to discourage. In the case of civil proceedings, a litigant should be able to have his or her rights determined without the risk of being sued for damages for seeking to enforce those rights. Accordingly, public policy requires strict adherence to the rules governing malicious prosecution actions; any departure from the exact prerequisites for liability may threaten the delicate balance between protecting against wrongful prosecution and encouraging reporting of criminal conduct or protecting the rights of a civil litigant.

See Browning-Ferris Industries v. Lieck, 37 Tex. Sup. Ct. J. 851, 881 S.W.2d 288, 290-291 (Tex.1994) which holds that:

“there should be a strict adherence to the rules discussed in the context of a criminal prosecution.”

Moreover, these rules may not be avoided by bringing the action under another theory, such as negligence. The essential elements of a claim for malicious prosecution are: (1) the institution of proceedings against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceeding in plaintiff’s favor; and (6) damages to the plaintiff.

If the underlying action was a criminal prosecution, the plaintiff must also have been innocent of the charges. If the underlying action about which there was a complaint was a civil case, the plaintiff must have been named as a party in the suit. In the context of a civil case (see also “abuse of process”), the Plaintiff must also allege and prove special damages arising from an interference with his or her person, such as an arrest or detention, or with his or her property, such as an attachment, appointment of a receiver, writ of replevin, or injunction.

In a malicious prosecution action, the plaintiff bears the burden of proving that no probable cause existed for instituting the underlying proceedings, and the law initially presumes that a defendant acted reasonably and in good faith and, therefore, had probable cause. Though a criminal defendant enjoys the presumption of innocence in the underlying proceedings, that person is not presumed innocent as a plaintiff in a civil malicious prosecution action; instead, the accuser’s good faith is presumed, and the plaintiff must rebut this presumption by producing sufficient evidence that the motives, grounds, beliefs, or other information upon which the defendant acted did not constitute probable cause. Once the plaintiff has met this initial burden, the burden then shifts to the defendant to offer independent proof of probable cause. If the plaintiff, however, does not carry this initial burden, the presumption of probable cause remains unrebutted and the defendant is entitled to judgment as a matter of law.

The definition of “probable cause” depends on whether the underlying proceeding was civil or criminal. With respect to a civil proceeding, probable cause exists if the defendant (1) reasonably believed in the existence of the facts on which his or her claim was based; and (2) reasonably believed, or believed in reliance on the advice of counsel that was sought in good faith and given after a full disclosure of the facts within the defendant’s knowledge and information, that the claim was valid.

With respect to a criminal prosecution, probable cause is the existence of such facts and circumstances as would cause the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor (complainant), that the person charged was guilty of the crime for which he or she was prosecuted. In either case, the definition must be applied to the circumstances as they existed at the time the prosecution began. Thus, the magistrate or/and judge in this type of case may properly be instructed to consider only events prior to the institution of proceedings in determining probable cause. The question of probable cause does not depend on the guilt or innocence of the plaintiff, but on whether the defendant had reasonable grounds to believe, and did believe, that the plaintiff was guilty from the facts known to defendant at the time of filing the complaint. Therefore the question is not whether plaintiff committed an offense, but whether defendant had reasonable grounds to believe that the plaintiff did.

Moreover, if there is probable cause for the belief in the guilt of the plaintiff for an offense substantially similar to that for which the plaintiff was prosecuted, the defendant is not liable for malicious prosecution. Neither the plaintiff’s actual innocence or acquittal nor the prosecutor’s abandonment of the prosecution show or raise a presumption of lack of probable cause. The test for determining whether probable cause existed in connection with a criminal prosecution depends on whether the defendant actually brought a formal criminal complaint or merely furnished information to law enforcement officers, who then acted independently and used their own discretion in bringing formal charges. In the former situation, the question is what the defendant honestly and reasonably thought the facts were at the time he or she filed the criminal complaint. In the latter situation, the question is what the defendant actually believed, rather than what the defendant reasonably believed.

Moreover, the defendant is not liable in such a situation if he or she made a full and fair disclosure of the facts to the prosecuting authorities. On the other hand, in the context of a criminal case, the complainant’s failure to fully and fairly disclose all material information or knowing provision of false information to the prosecutor, while relevant to the malice and causation elements of a malicious prosecution action, have no bearing on probable cause. This is because the existence of probable cause depends only on the complainant’s reasonable belief, based on the information available to the complainant before criminal proceedings began, that the elements of a crime had been committed. The reasonableness of such a belief is not negated by the failure to disclose fully all relevant facts to the prosecutor. Furthermore, proof that a defendant provided false information is not sufficient. Proof that the false information ”caused a criminal prosecution” is also required. In other words, there must be proof that the prosecutor acted based on the false information and that but for such false information the decision would not have been made.).

Nevertheless, if all the objective elements of a crime reasonably appear to have been completed, the complainant has no duty to make a further investigation into the suspect’s state of mind. See King v. Graham, 47 Tex. Sup. Ct. J. 85, 126S.W.3d 75, 78-79 (Tex. 2003

For legal issues consult:

Stephen Tumaini Mduma
Chief Executive Officer
SEMKO CONSULTANTS LTD
P.O.BOX 12027
Dar es Salaam
Tanzania
+255 713 00 00 96
email;sempaimduma@yahoo.com
Webpage. http://www.facebook.com/pages/Semko-Consultants-LTD/156975847746848

LAW AND SOCIETY.

The Law and Society.

Law can be said to perform four different functions, each of which is of huge importance to our welfare.

(1) Defending us from evil

The first and most basic function of law is to defend us from evil – that is, those who would seek to harm us for no good reason. This function of law underlies 20th century developments in International Law such as the Nuremberg Trials and the creation of the International Criminal Court.

(2) Promoting the common good

Law is not just concerned with bringing evil people to account for their actions. A community made up of people who bear no ill-will to anyone else and are simply concerned to pursue their own self-interest needs law because there are situations where if everyone pursues their own self-interest, everyone will be worse off than they would have been if they acted differently. (This is the reverse of the ‘invisible hand’ phenomenon where if everyone pursues their own self-interest, everyone in the community is made better off, as if everyone’s actions were guided by an ‘invisible hand’ to achieve that end.) So a community of self-interested actors needs law: (i) to solve ‘Prisoner’s dilemma’ situations; (ii) to distribute into private hands property that would otherwise be exploited by everyone, thereby avoiding a ‘tragedy of the commons’ situation arising; (iii) to prevent people acting on their natural desire to extract ‘an eye for an eye’ in revenge for actual or perceived wrongs that they have suffered at other people’s hands.

(3) Resolving disputes over limited resources

As every family knows, in any community there will always be disputes over who should have what of a limited number of resources. Law is needed to resolve these disputes, as exemplified by the famous story of the Judgment of Solomon.

(4) Encouraging people to do the right thing

It was thought even from classical times that law performed a fourth function – that of encouraging and helping people to do the right thing. For example, Aristotle (384 BC – 322 BC) argued that people needed the discipline of law to habituate them into doing the right thing, from which standpoint they could then appreciate why doing the right thing was the right thing to do. Up until the 20th century, this view of law was accepted by law makers, with the result that the UK legal system contained a large number of ‘morals laws’ – that is, laws that were designed purely and simply to stop people acting immorally, according to the lights of Christian teaching on what counted as immoral behaviour. However, in the 20th century, the ‘harm principle’ propounded by John Stuart Mill in his bookOn Liberty, according to which the law should not sanction people for acting immorally unless their conduct involved some harm to others, gained more and more popularity, and resulted in the abolition of large numbers of ‘morals laws’. These trends triggered what is now known as the Hart-Devlin debate over the extent to which it is legitimate for the law to enforce morality. Lord Devlin – at the time, a judge in the House of Lords, the highest court in the land – argued that law should enforce morality so as to preserve the cohesiveness of society. Professor H.L.A. Hart – at the time, the most famous legal philosopher in the world – based his position squarely on Mill’s harm principle, though subject to the caveats that the law might legitimately prevent someone acting immorally if doing so involved harm to himself or would cause offence to others. Hart’s views are set out in his widely read bookLaw, Liberty and Morality’. Hart is thought to have won the debate – but his concessions that it might be legitimate to make it illegal for someone to engage in immoral behaviour that will (i) harm himself or (ii) offend others, seem to make little sense. The same point can be made about those ‘morals laws’ that survived the 20th century cull: if law does not have a role to play in encouraging us to do the right thing, why is it illegal to have sex in public, or to have sex with animals, or to dig up dead bodies, or to take hallucinogenic drugs, or to help someone kill themselves?

The rule of law

Whether or not law has a role to play in encouraging us to do the right thing, no one doubts the continuing importance of law in performing the first three functions set out above. As a result, there is a widespread acceptance that the health and wealth of nations is crucially dependent on how far the rule of law is maintained and observed in those nations. See for example, this World Bank website, or this United Nations website, or this website maintained by the American Bar Association, or this essay on the importance of observance of property rights and the rule of law to a country’s development. As a result, a lot of attention is paid to indexes that attempt to chart how far countries around the world respect such things as the rule of law and private property rights. For examples of such indexes, see World Justice Project and International Property Rights.

Critics of the law

Having said all that, it should be acknowledged that numerous criticisms are made of the benefits that are supposed to flow from the existence of law, and the observance of the rule of law.
For example, some point out that the fact that a society respects the importance of the rule of law and private property rights is no guarantee that that society will be particularly just (or even that wealthy). The rule of law, it is argued, is compatible with great oppression, inequality and poverty; a point summed up by Anatole Frances famous observation that ‘The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’
Others take this point further and argue that in the wrong hands, law can become an instrument of evil, a means by which a country’s rulers can rob people of their property and oppress minorities.
It is also argued that even if law is not actually used as an instrument of evil, it can become its accomplice by doing such things as:
(i) hamstringing public officials (such as the fictional Jack Bauer of the American TV series ‘24’) from doing what is necessary to prevent terrorist atrocities; and
(ii) granting people rights and encouraging them to exercise them, thereby fostering a damaging culture of complaint and compensation culture that alienates people from each other, and discourages people from helping other people for fear that doing so might result in their being sued.

Conclusion

All legal systems do harm of one kind or another. Some of that harm is intended: in order to achieve its goals, a legal system always has to limit people’s freedom. Some of that harm is an unintended side effect of the legal system’s attempting to achieve its goals: for example, harms (i) and (ii), above. What is important is: (1) that our legal system do more good than harm; and (2) that our legal system not do any unnecessary harm. I don’t have any doubt that (1) is true of our legal system; at the same time, I don’t have any doubt that (2) is not true. So the verdict on our legal system must be ‘Good, but could be better’. How our legal system could be improved is a matter of debate.

For legal issues do not hesitate to consult:
Stephen Tumaini Mduma
Chief Executive Officer
SEMKO CONSULTANTS LTD
P.O.BOX 12027
Dar es Salaam
Tanzania
+255 713 00 00 96
email;sempaimduma@yahoo.com
Webpage. http://www.facebook.com/pages/Semko-Consultants-LTD/156975847746848

LAND LAW IS SO IMPORTANT

Land law is the form of law that deals with the rights to use, alienate, or exclude others from land.

In many jurisdictions, these species of property are referred to as real estate or real property, as distinct from personal property. Land use agreements, including renting, are an important intersection of property and contract law.

Encumbrance on the land rights of one, such as an easement, may constitute the land rights of another. Mineral rights and water rights are closely linked, and often interrelated concepts.

Land rights are such a basic form of law that they develop even where there is no state to enforce them; Squatting, the occupation of land without ownership, is a globally ubiquitous and important form of land use.

Sovereignty, in common law jurisdictions, is often referred to as absolute title, radical title, or allodial title. Nearly all of these jurisdictions have a system of land registration, to record fee simple interests, and a land claim process to resolve disputes.

Indigenous land rights are recognized by international law, as well as the national legal systems of common law and civil law countries. In common law jurisdictions, the land rights of indigenous peoples are referred to as aboriginal title. In customary law jurisdictions, customary land is the predominant form of land ownership.

A land value tax is a component of tax law in nearly all jurisdictions. Land reform refers to government policies that take and/or redistribute land, such as a land grant.

Land rights refer to the inalienable ability of individuals to obtain, utilise, and possess land at their discretion, as long as their activities on the land do not impede on other individuals’ rights. This is not to be confused with access to land, which allows individuals the use of land in an economic sense (i.e. farming). Instead, land rights address the ownership of land which provides security and increases human capabilities.

When a person only has access to land, they are in constant threat of expulsion depending on the choices of the land owner, which limits financial stability.

Land rights are an integral part of Land Laws, as they socially enforce groups of individuals’ rights to own land in concurrence with the land laws of a nation. Land Law addresses the legal mandates set forth by a country in regards to land ownership, while land rights refer to the social acceptance of land ownership. Landesa takes the stance that although the law may advocate for equal access to land, land rights in certain countries and cultures may hinder a group’s right to actually own land.Laws are important, but they must be backed up by cultural tradition and social acceptance. Therefore, laws concerning land ownership and land rights of a country must be in agreement.

Globally, there has been an increased focus on land rights, as they are so pertinent to various aspects of development. According to Wickeri and Kalhan, land ownership can be a critical source of capital, financial security, food, water, shelter, and resources.The UN Global Land Tool organisation has found that rural landlessness is a strong predictor of poverty and hunger, and negatively impacts Empowerment and the realisation of Human rights. In order to home in on this critical problem of inadequate land rights, The Millennium Development Goal 7D strives to improve the lives of 100 million slum dwellers. This includes increased land rights for impoverished people, which will ultimately lead to a higher quality of life,

Although land rights are fundamental in achieving higher standards of living, certain groups of individuals are consistently left out of land ownership provisions. The law may provide access to land, however, cultural barriers and poverty traps limit minority groups’ ability to own land, In order to reach equality, these groups must obtain adequate land rights that are both socially and legally recognised.

For help in land  issues;

Stephen Tumaini Mduma
Chief Executive Officer
SEMKO CONSULTANTS LTD
P.O.BOX 12027
Dar es Salaam
Tanzania
+255 713 00 00 96
email;sempaimduma@yahoo.com
Webpage. http://www.facebook.com/pages/Semko-Consultants-LTD/156975847746848

COURT ORDERS LULU’S LAWYERS TO PROVIDE PROOF ON HER AGE.

The High Court in Dar es Salaam Wednesday 13th June 2012 ordered defence lawyers of movie actress Elizabeth Michael alias Lulu to present documents supporting their claim she is under the age of 18.

Judge Fauz Twaibu ordered the defence lawyers to present the evidence and supporting documents by way of affidavit , Lulu is charged at the Kisutu Resident Magistrate’s Court with murdering local movie star Steven Kanumba on April 7, this year, at Sinza Vatican.

Defence counsel led by advocate Peter Kibatala filed the application at the High Court seeking the determination of the accused’s age, in there statement they claim that Lulu has not attained the age of 18 years to merit prosecution in an adult court.

The application by Mr Kibatara followed a decision by the lower court to turn down their request to transfer the murder case to a juvenile court on the ground that the lower court lacked jurisdiction to entertain the matter.

However, in his ruling yesterday, Judge Twaib quashed and set aside the decision by the resident magistrate’s court to refuse to entertain the application, saying it was an error in law and an abdication of duty.

“Consequently, I hold that the lower court was wrong to refuse to entertain the application, thinking that such an enquiry could only be done by this court. I quash and set aside the decision of the Kisutu Court,” the judge ruled.

The judge said that, considering the seriousness of the charge facing the applicant and the urgency of determining whether or not the applicant is entitled to the benefits of the Child Act and in the interest of justice, the court is invoking its supervisory powers under Section 44 of the Magistrate’s Court Act and shall proceed to determine the correct age of the applicant in terms of Section 113 of the Child Act.

The judge said that the nature and seriousness of the charge facing the applicant, the lack of any possibility for securing bail, during the pendency of the charge and undisputed urgency of the matter require that the controversy about her age be determined the soonest.

He further ruled that, in the meantime, the proceedings of the murder case at the lower court should stay, pending determination of the applicant’s age in the High Court. The judge ordered the applicant’s counsel to produce evidence on their client’s age on June 13 while prosecution required submitting their reply on June 20 while the hearing would be on June 25.

INSURANCE IS VERY IMPORTANT TO BUSINESS.

Business insurance can be a complex subject, with many internal variables that need to be examined before a wise decision can be made.

For this reason, anyone considering business insurance should first seek the advice of a reputable broker or agent, today i will try to explain few detail of the many variables that business insurance may contain.

As with most insurance types, business insurance is used to protect the business and the business owner should unforeseen events happen to the business.

The trick is to make sure that your business is covered for those events that are most likely to happen and to never find yourself unprotected, which might lead to the financial collapse of the business.

Business insurance can be purchased to cover virtually every aspect of the business.

For example, most business owners have a policy that protects them should they lose their business property.

Fire and theft insurance would be two means of doing this.

Business owners may also want to protect their inventory and their equipment.

As well, they most often want to have some form of protection in case an employee is injured on the job, this types of business insurance and the levels of coverage are often determined by the type of business itself, but it can also be influenced by lenders who hold portions of the business as security against loans that may have been made to the business in the past.

Lenders who have financed expensive machinery or other types of equipment will often want the business owner to have some form of insurance on the machinery.

This use of insurance helps to protect the lender as well as the business owner should loss occur to the insured item. The use of business insurance is also important as a form of protection against personal liability.

Personal liability is when a business owner or owners can be held personally responsible for injuries or damages that occur on the business property or during the course of normal business operations.

If a business owner is found to be personal liable for damages or injuries, the owner will have to use his or her own assets to pay for those injuries or damages. This might include the sale of a private home, automobiles, cash, savings, or any other asset that has value.

There are business insurance policies that can help protect an owner against such claims. Although business insurance is considered an expense, it is often a tax deductible expense.

Anyone who is thinking of starting a new business or buying an existing business should invest the time needed to research the types of insurance they will need for that business.

Again, the very best way to do this is to speak with a reputable agent or broker. Once you have a clear idea of exactly what you will need you can then begin to shop for the best prices.

At the very minimum you want to make sure that your personal liability is covered by some form of business insurance. Ignoring this may cost you everything that you have worked for and earned.

For insurance issues contact:
Stephen Tumaini Mduma
Chief Executive Officer
SEMKO CONSULTANTS LTD
P.O.BOX 12027
Dar es Salaam
Tanzania
+255 713 00 00 96
email;sempaimduma@yahoo.com
Webpage. http://www.facebook.com/pages/Semko-Consultants-LTD/156975847746848

WHY IS IT SO IMPORTANT TO PUT AGREEMENTS INTO WRITTING?

 

The Extraordinary Importance of Contract Law

Contract law lies at the heart of our system of laws and serves as the foundation of our entire society. This is not an exaggeration. It is a simple observation – one that too often goes unobserved.

Our society depends upon free exchange in the marketplace at every level. Contract law makes this possible. Exchanges in the marketplace always depend upon voluntary agreements between individuals or other “legal persons”. Such voluntary agreements could never work without contract law.

Contract law serves to make these agreements “enforceable”, which usually means that it allows one party to a contract to obtain money damages from the other party upon showing that the latter stands in breach.

Without contract law, these voluntary agreements would instantly become impractical and unworkable. Since such agreements lie at the very heart of our society and economy, and since they depend upon contract law, it is no exaggeration to say, as I have just done, that “contract law lies at the heart of our system of laws and serves as the foundation of our entire society.” Those were the very words that I used to begin this essay.

Stated more precisely, it is our system of contract law that underpins and makes possible the many private, voluntary agreements by which exchanges of goods and services are accomplished in our society at every level. No exchange is exempt from the contract law, which indeed can be rightly called the cornerstone of marketplace civilization.

In this article, I will briefly explain the different types of contracts that can be made, paying special attention to the common problems that arise in their formulation. I will also discuss how contracts are enforced or avoided, and how a wronged party to a contract can obtain recompense and other relief from the wrongdoing party. I will explain the principle of good faith, which in California is known as the “covenant of good faith and fair dealing”, and which has been too often overlooked by commentators and practitioners alike.

I do not aim to provide a comprehensive explanation of all the theoretical and practical difficulties. This is an overview, not an exhaustive treatise. Sometimes the overview will better help the reader understand the essential points, or the “forest” if you will, while the treatise is better for explaining the many intricacies and complexities that can be rightly called the “trees” of contract law.

Definition of a Contract

A contract is nothing other than a voluntary, private agreement to exchange valuable things. It most often is an exchange of valuable promises. For example, a home-buyer might promise to pay $250,000 to the seller, who in exchange promises to deliver unencumbered title to the buyer.

Good Faith and Fair Dealing

Most exchanges are straightforward matters that are self-executing and done without any problem at all. When I buy a cup of coffee at my local cafe (which I have just done so that I may enjoy it while I compose the present essay on my laptop), the cafe and I have made a self-executing exchange, which we have done without a hitch.

Ditto, if I buy a book at the local bookstore or have my car washed at the local car-wash. Ditto again, if I purchase airplane tickets from a travel agent, or have my house painted, or have my teeth cleaned at the dentist’s office.

Fortunately, most exchanges are performed on the spot to everyone’s satisfaction. Were this otherwise, our society and general commerce would soon become choked by controversy and disputes. Thus it may be said that our system depends above all on the good faith and honesty of our people. Indeed, the principle of “good faith” is central to contract law.

Every contract made or performed in California is said to include an implied-in-law covenant of good faith and fair dealing, by which each party to the contract agrees to act in good faith and deal fairly with the other. This has been construed to mean that one party to a contract should not try in bad faith to cheat the other party of the benefit of the bargain made by the contract.

Inevitable Complications and Controversies

While most exchanges are performed without incident, not all of them are, as we all know. This is true even in the simplest of matters (e.g., the sale of a cup of coffee) and is even more likely in a complicated transaction (e.g., the financing, delivery, and insurance of commercial aircraft for an overseas company over a thirty-year term).

Let us take a simple example first. I will list only a few of the problems that might arise from a simple contract for a one-time sale of a single box of tomatoes. If you offer to give me $10 for a carton of tomatoes that I have sitting on a table behind me, and if I agree to accept it as payment in full for the tomatoes, we have made an oral contract that we can perform on the spot: You hand me the $10 bill, and I give you the carton. Nothing more simple or straightforward, right? But what if you discover that my tomatoes were too ripe when you bought them, and that they all go rotten within two hours of the purchase? What if I take your $10 bill, but then refuse to give the box of tomatoes, telling you to “beat it, scram, or else you’ll get hurt!” What happens if your $10 bill turns out to be counterfeit, or if you take the tomatoes but refuse to pay, or pay with a check that you later cancel or that is returned unpaid by the bank? What if the carton breaks while you are carrying it, and all the tomatoes fall to the ground and are ruined? What if you needed these tomatoes for the dinner you meant to make for your boss, who, in disappointment, decides not to give you the promotion he had earlier discussed with you? My point is only that problems can and often do arise in even the simplest, easiest exchanges.

In more complicated transactions, the possible difficulties are varied and sometimes difficult for the parties even to envision at the outset, much less address in an intelligent, orderly manner. Let’s consider one such example. Suppose a large American company makes a contract with a large foreign company by which it becomes obliged to design, deliver, and insure an entire generation of commercial aircraft over a thirty-year period. The possible complications might take me literally years to ponder, list, analyze, and explain. It could take a decade or longer for feuding teams of lawyers in several countries to sort out the possible complications that might arise.

To avoid such controversy, which results in burdensome attorney’s fees and an equally burdensome devotion of attention and effort that could be better employed in more constructive endeavors, it is necessary to have a proper contract in place at the outset: If the exchange is to be done on the spot and simultaneously, a written contract need not be used, but the parties should either reasonably trust one another’s good faith or have an exact understanding of the exchange before they undertake it. If the exchange cannot be performed in full on the spot, there should be a written contract to state the parties’ obligations and the essential terms of the exchange. A good written contract will also address at least the most likely complications that might arise, assigning responsibility for any such complication to a specific party in a specified manner.

A good written contract is one that clearly describes the exchange to be done and also addresses the possible complications that might arise during the performance of the exchange.

Different Kinds of Contracts

I earlier provided a simple definition of a contract. Here is a more technical definition: A contract is a private compact, voluntarily made, by which the parties agree to exchange valuable things with one another. A contract comes into existence when (1) one party makes an offer that the other party accepts, and (2) the parties thereby agree to exchange valuable benefits on specified terms and conditions, with reasonably specific agreement on the price, place, time, the goods or services to be delivered, and the other essential terms of the exchange.

Let us consider three different examples, so that this point can be illustrated clearly.

First Example: An Oral Contract. Suppose that I offer to pay you $1000 to proof-read this article and offer constructive criticism on how it might be made more useful or enjoyable to my probable audience. I further specify that I want you to state your criticisms in writing to me no later than “next week Thursday”, whereupon I will pay you in full. If you agree to these terms, perhaps by saying “I accept your offer”, we have made an oral contract by which I have promised to pay you $1000 next week Thursday, on condition that you give me your editorial comments in writing on that date.

But no contract would have been made if you had instead stated the following: “I agree to everything, except the price, which is too low for such important work on your extraordinary article! I propose to do the work for $10,000.” In this event, you would have made a counter-offer, which is really a rejection of the offer and the proposing of a new offer in its place. I could then accept your counteroffer, thereby making a oral contract, or I could make some new counteroffer, which would be a rejection of your last offer, but with a new offer to you, or I could decide that there is no point in continuing to negotiate with you, in which case I would reject your offer and discontinue or terminate the effort to negotiate a contract. But to return to my example of a binding contract: Suppose that we finally agree upon the exact terms of my paying you to proofread this article. We have in this instance made a binding oral contract.

Second Example: An Implied Contract/Unilateral Performance. Now let’s consider a second example. If I pay $1.50 in exchange for a cup of coffee given to me by the serving-person at my local cafe, a contract has been made and performed on the spot: The parties to the contract are the cafe and me. We have impliedly agreed that I will pay the $1.50, and that in exchange the serving person will make and give me a fresh cup of coffee that I may consume at leisure on the premises. I have given a valuable benefit (ready money) in direct exchange for another valuable benefit (a fresh cup of coffee that I can enjoy at leisure in a cafe).

In this case, the cafe and I have not merely made a contract, but have performed it on the spot. Since we did not actually haggle over the terms of the exchange, we have performed a unilateral contract: The cafe has in effect said to all comers, “If you approach our counter and order food or beverage at the prices stated on our menu, we will furnish you the food or beverage that you order, on condition that you pay for it on the spot. You may then consume your food or beverage at leisure on our premises.”

In response to this open offer to all comers, I have taken the unilateral action of approaching the serving-person to order the coffee. My unilateral action of ordering a cup of coffee sets into motion the immediate performance of the exchange. The actual terms of the contract are implied by the cafe’s posting of its prices, my own conduct, and the ensuing, simultaneous exchange.

Third Example: A Written Contract. For our third example, let’s consider consider a more complicated contract that by its very nature requires a comprehensive written agreement. Suppose that a huge multinational corporation seeks to sell fighter aircraft to the United States Air Force, which is predisposed to meet its military needs by purchasing this aircraft. The two parties contemplate that the seller will help to design the aircraft, manufacture it, deliver it on a specified schedule, and provide insurance for it. Suppose that the Air Force agrees in principle to pay at least $417 billion dollars for this aircraft over a ten-year period. The negotiations themselves will last for months, if not years. Offers, counter-offers, and term sheets will abound. Both parties will employ elite attorneys to compose a master contract and ancillary documents that will supposedly explain the transactions and address each possible problem that might arise during their performance. The ensuing documents, which will likely fill a large room, will collectively constitute the series of written contracts and related documents by which the entire arrangement is to be performed.

In each example given above, the parties have agreed to exchange valuable benefits on specified terms and conditions (in the first example, I have also tried to show how contracts are sometimes proposed, but rejected by parties who exchange counteroffers but never reach a definitive binding offer-and-acceptance).

A lay-reader might think at first glance that my third example (the Air Force contract) is somehow a more formal, more binding contract than the first two examples (the proof-reading contract and the cafe contract). But this would be a mistaken conclusion: In all three examples the parties have made a binding, enforceable contract, by which each has agreed to give something of value in exchange for getting something of value. The only difference lies in the complexity of the exchange, not in its character.

The essential principle of every contract, no matter how large or small, is the giving of something in exchange for the getting of something. Typically, one “gives” a promise to do something, and in exchange “gets” a promise from someone else to do something.

Contracts can be stated in writing, in which event they are called written contracts. Or they can be made by oral agreement, whereupon they are called oral contracts. Or they can arise by implication, in which case they are said to be implied contracts. These then are the three different kinds of contract – written, oral, and implied.

Usually the parties to a written contract understand that they have entered into a binding agreement, but they do not always grasp this point when making an oral or implied contract. But the law never ignores this circumstance, nor is a party’s ignorance of this “legal fact” an excuse that can be plead as a defense in court. If I offer to pay you $25 tomorrow for a carton of tomatoes, and if you accept my promise and bring me the carton at the appointed place and time, I commit a breach of oral contract if I refuse to pay the $25 for them. It matters nothing that we made no written agreement. We made an oral one, and you can seek damages for its breach in court if you so desire.

But it is always harder to prove the terms of an oral or implied contract than those of a written one. A written contract can “speak for itself”. The terms of an oral contract can only be recounted by the parties themselves or other witnesses to the transaction. Their testimony can often be contradicted or is sometimes self-contradictory or implausible on its face. Even when the testimony is the absolute gospel truth, it might not be believed by a skeptical judge or jury, or it might be cynically discredited by a shrewd trial lawyer.

It is for this reason that written contracts should be used in exchanges that are not to be performed on the spot.

A written contract can be a simple recitation of a straightforward exchange, or it can be longer and more complicated. The parties themselves decide what will be stated in it, subject only to certain laws that will be addressed below.

For more complicated transactions, such as our Air Force example given above, the parties will invariably use a complicated, lengthy contract or more typically a series of such contracts: Such monumental works can take months or even years to compose, and far longer to decipher when the whole transaction unravels years later, as all too often occurs in the real world. Contracts of this kind usually include all manner of legal devices or drafter’s tools to describe the manifold transactions and especially to allocate responsibility and risk.

This said, there is one point that is more important than all the others. Every written contract, no matter how complicated or convoluted, is at bottom a statement of a private, voluntary agreement to exchange valuable benefits.

Various Devices Used in Written Contracts

Written contracts often employ various “devices” or “drafter’s tools” to explain the exchange more fully and to allocate responsibility and risk for the possible complications might arise, as I have mentioned just above. (You may skip this section if you do not wish to wish to read about such “devices”).

Here is a very imperfect listing and brief explanation of the most commonly used devices:

  • A preamble or recitation of recitals is never obligatory, but is often useful, so that the nature and purpose of the transaction can be stated expressly. These serve to explain and clarify the contract whose proper meaning is later disputed. This matter is discussed below.
  • A covenant is merely a statement of an obligation or duty that the covenantor promises to observe or perform for the benefit of the covenantee. Covenants are often used in real estate contracts and are meant often to become “covenants that run with the land” (i.e., obligations that burden the land even after it is passed from the original covenantor to a new purchaser who never personally made any covenant to do anything, but who is bound by the covenant merely because he has succeeded to title to the land).
  • A provision is merely an express statement of rights or responsibilities that has special importance to one or more of the parties (e.g., an “opt-out provision”).
  • A condition precedent is the statement of a prerequisite event or circumstance that must occur or arise before a stated obligation becomes binding (e.g., “the company must deliver 47 widgets each Wednesday of any week in which the quoted price of widgets in Chicago on Monday is above $4 per widget” – which means that a condition precedent to the company’s obligation to ship the widgets on Wednesday is that the market-price for widgets in Chicago on Monday is at least $4 per widget).
  • A condition subsequent is the statement of an event or circumstance whose occurrence extinguishes or modifies an obligation (e.g., “the company must deliver 47 widgets each Wednesday to Smithers until the market price of widgets in Chicago falls below $4 per widget, whereupon this contract shall become voidable at the company’s expense” – which means that the company acquires the right but not the duty to cancel the contract upon the condition subsequent of the fall of the market price to below $4 per widget).
  • A condition concurrent is the statement of a condition that must be satisfied at the very time the obligation is owed, else the obligation is not owed at all. Most escrow transactions employ such conditions (e.g., “the purchaser will place $400,000 in escrow; the seller will place into escrow a grant deed of title to a specified parcel of real property; and the condition concurrent will be that the escrow holder will record the grant deed in the purchaser’s favor while transferring the purchase price to the seller’s ledgers as a credit in the seller’s favor).
  • Express representations are statements of material fact, made by one party to induce the other to agree to the contract. Often these are oral statements made during negotiations. Sometimes a prudent party will insist that representation be recited in the contract itself and declared to be a “material inducement” to the agreement. If the representation later proves to have been misleading or inaccurate, the party who relied on it might have a claim for misrepresentation (intentional or negligent). Often the parties will specify that no party to the contract has relied on any representation, other than those expressly recited in the contract itself. This matter is discussed below.
  • Disclaimers are express disavowals of responsibility, as in “the company disclaims (disavows) any responsibility for any harm that any of its widgets might cause to Smithers, his business or his property”.
  • Exclusions, which are often employed in insurance contracts, are used to remove certain kinds of obligations from the contract that otherwise might be deemed to be required by it (e.g., “the insurance company will pay for all harm caused to the structure by fire, unless the fire was caused by natural disaster or set on purpose by an arsonist” – in this instance, it is the phrase that begins with the word “unless” that states the exclusion to the general obligation).
  • A warranty is a guarantee of a condition or circumstance that is material to the contract (e.g., the company warrants that its widgets shall be fit for use in widget-grinders”, or “the automobile is warranted to remain in good repair for seven years or the first 100,000 miles of driving, whichever comes first”). Typically, the warrantor must pay for harm caused if the warranty is not met.
  • An indemnity is the grant of reimbursement upon the occurrence of a condition subsequent. Stated differently, a party might become entitled to reimbursement upon the occurrence of a condition precedent! The condition, whether it be deemed subsequent or precedent, is some sort of loss suffered by the party entitled to indemnification (e.g., “if the company fails to deliver the widgets by next week Wednesday, and Smithers thereupon purchases widgets from another vendor, the company must indemnify Smithers for his general and incidental damages” – this example being particularly instructive, as it is an express indemnity for contract damages that shows an indemnity clause at work and leads us to our next subject, which is the matter of damages upon the breach of a contract). Indemnities tend to include specific procedures that must be followed in order to obtain the indemnification on offer. The law of indemnification is fundamental to insurance contracts and more generally to the allocation of commercial risk. It is a highly evolved body of law that requires special study in order to be practiced with competence.
  • A release is a formal renunciation and binding forfeiture of a right or claim (e.g., “Smithers releases the company from any claim that it might otherwise have for misperformance of any obligation owed or arguably owed before the date of signing of this contract”).
  • Litigation procedures are special provisions by which the parties agree in advance on the resolution of any subsequent dispute arising from the performance of the contract. Parties typically specify which law governs interpretation and enforcement of the contract (e.g., “the contract is to be governed by California law”). The parties sometimes require that any dispute arising between them first be submitted to mediation and afterwards to private arbitration in lieu of a courtroom litigation. Other times they specify that any lawsuit must be instituted in a particular place (e.g., “venue shall be in San Diego County”).

The important point is that the parties themselves can insert in their contract whatever they choose, so long as their purpose or the mechanism chosen is not illegal or otherwise contrary to local public policy. The above-listed devices are merely means of stating and refining the agreement that the parties mean to make with one another.

These devices are used all the time in written contracts, but only rarely in oral or implied ones, which instead tend to be straightforward or simple exchanges that usually are performed on the spot or are made by parties who readily trust one another or otherwise have no reason to suspect that the mutual obligations are unclear or could be misconstrued.

Written contracts, in contrast, tend to make liberal use of these different devices, which I have tried to touch upon briefly above. The inartful or excessive use of such devices in written contracts can lead to unwelcome confusion. It is no stretch to say that some written contracts are so complicated that either (1) no one alive really understands their entire meaning or ramifications, or (2) they are at best understood only by teams of attorneys who have labored for months on end to prepare and implement them. I personally have had the honor, or misfortune if you prefer, to litigate controversies arising from such contracts, which at first glance are less comprehensible than ancient tomes written in Old Sanskrit! But patience, past experience, and joyless effort allow most seasoned lawyers to make sense of these unwieldy monsters, or at least as much sense as is humanly possible to make of them!

A truly well-done contract is one that takes any transaction, no matter how complicated, and states it in simple, unambiguous terms that are instantly understood by everyone and cannot be misinterpreted by anyone. Good contacts will employ some or all of the above devices, but will do so sensibly and intelligibly.

Controversies and Remedies

If one party to a contract wishes to complain that the other has failed to perform or has misperformed, he can assert that the non-performing or misperforming party has committed a breach of the contract. A breach is said to occur when one party to a contract fails or refuses without proper excuse to perform a “material” term or condition of the contract in a satisfactory or timely manner.

If such a breach occurs and causes proximate harm to the wronged party, the offending party becomes liable at law for a breach of contract. Stated more exactly, the wronged party can bring suit against the offending party if he pleads that (1) a contract (oral, written or implied) was formed between the two of them; (2) the wronged party performed his own obligations under the contract or has been excused by the other party’s malfeasance from performing them; (3) the offending party failed or refused to perform at least one material term or condition of the contract in a reasonable or timely manner; and (4) by so failing to perform, the offending party caused proximate injury or harm to the wronged party.

If an aggrieved party prevails on a claim for breach of contract, his remedies are limited ordinarily to monetary damages, which is to say, money recompense. The ordinary measure of monetary damages is such amount of money as is necessary to place the aggrieved party in the position in which he would have been, had the offending party timely performed the contract in proper manner.

Another way of stating this formula is to say that the aggrieved party, upon proving the breach, is entitled to the benefit of his bargain, but not usually to specific performance of the bargain itself.

Suppose that I make a contract with you by which I am to deliver a box of tomatoes to you next week Thursday before noon at your restaurant, and you are to pay me $15 for the product thus delivered. But on the Thursday in question I discover that the spot market for tomatoes has risen spectacularly, to $50 per box. I decide to sell all my boxes on the spot market and therefore fail to deliver the promised box to you, who were prepared to pay me the promised $15 for it. But you need a box of tomatoes for your restaurant, so you purchase one on the spot market that day for $50. On these facts, you have an open-and-shut claim against me for breach of contract, since I breached (broken) the above contract, doing so obviously and willfully. Your damages against me will be such money as will put you in as good a position as you would have enjoyed had I faithfully performed the contract – which in this instance is (1) the difference between what you were supposed to pay me for a box of tomatoes and what you had to pay on the spot market after I failed to deliver the product; and (2) any incidental expense that you reasonably incurred so that you could make the replacement purchase – for example, the taxi fare you might have incurred to drive to the tomato stand at the other end of town, etc. In this example, the difference in price is called direct damages – the harm that you directly suffered as a direct consequence of my breach; the taxi fare is called incidental damages, as it was an expense that you incidentally incurred while making replacement arrangements.

Ordinarily, direct damages and incidental damages serve to give the aggrieved party the benefit of his bargain, placing him in the position that he would have enjoyed had the offending party performed rather than breached the contract. Interest on these sums is also given, since there is often a long interval between the suffering of harm and the award of recompense (the aggrieved party must complain to the offending party, and usually must bring suit, etc.).

In some cases an aggrieved party cannot have the benefit of his bargain if he receives only direct and incidental damages. Sometimes the aggrieved party may properly seek consequential damages, which are losses suffered in foreseeable consequence of the breach. Such damages can greatly exceed the value of the contract (it is therefore advisable to disclaim responsibility for consequential damages so far as the law allows).

If I make a contract with my local dry-cleaner by which it agrees to dry-clean my dress shirts and suits, and if it thereafter breaches the contract by ruining rather than properly cleaning my clothing, I am almost certainly entitled to a recovery of the money I will need to buy brand new clothing of comparable quality, as well as reasonable incidental expenses incurred to make these new purchases (such money recompenses me for my direct and incidental damages). But can I argue that in consequence of the breach, I did not have a proper suit to wear to an all-important meeting with a prospective client, who in consequence has decided not to engage our firm to provide $1.3 million of legal services, thereby causing my firm to lose specified profits? In this instance I would be arguing for consequential damages — i.e., damages incurred as a consequence of the breach. The contract law rightly says that such damages may be recovered only when they are either (1) reasonably foreseeable at the time the contract was made, or (2) expressly contemplated in the contract itself as compensable damages in the event of a breach. In the example given above, the dry-cleaner would almost certainly prevail by arguing that it could not reasonably foresee that its failure to clean my clothing could result in such enormous losses for my law firm. It wouldn’t be held responsible for my alleged consequential damages. (If the dry-cleaner had properly prepared its form contracts, it would have expressly disclaimed such responsibility at the outset, making a case against it for consequential damages untenable from the start).

Most but not all commercial contracts also award attorney’s fees to the prevailing party, meaning that the aggrieved party, if he brings suit for breach or misperformance of the contract, can recover his attorney’s fees, but only on condition that he prevail in the suit; but if he loses the suit, the other party, having been found not to have committed any breach or misperformance, is entitled to recovery of attorney’s fees incurred to prove his innocence in the matter.

In some instances, money damages simply will not suffice to recompense the aggrieved party. This is true where the offending party promised to give something of unique or irreplaceable value to the aggrieved party, but then breached his obligation to do so. In such a case, the aggrieved party may assert that no sum of money can recompense him adequately, and he may insist on specific performance of the contract. The aggrieved party in such a case argues in effect that he can enjoy the benefit of his bargain only if he can compel performance of the bargain itself. It is not possible for a mere award of money to put him in the position he would have enjoyed had the bargain been performed. The bargain must therefore be performed.

But the courts rarely compel the specific performance of a contract, save where it is one for the sale of real estate, since every parcel of real property is deemed to be unique, special, and uniquely valuable to its owner. There are other kinds of contracts that can be specifically enforced, but their number is limited and dwindling in an unsentimental, commercial world in which the payment of money is usually deemed the proper remedy for every loss or disappointment suffered.

Under certain circumstances, an aggrieved party can avoid a contract that he previously agreed to make. This is known as rescission or avoidance of the contract. By this relief, the parties are to be placed in the position in which they found themselves before the contract was made. Suppose that you and I make a contract for the purchase of goods, and the contract calls for me to make a deposit at your store and obliges me to complete my purchase of your goods at a stated time. But afterwards I establish that I am entitled to a rescission of the contract. In this event I am not only excused from the obligation to purchase your goods, but am also entitled to a refund of the deposit, along with any incidental damages.

Rescission is always available to those who have been defrauded by false representations into agreeing to unfair contracts (this point is discussed further below). Rescission is also available to relieve aggrieved parties from unconscionable contracts – typically, deceitful contracts on pre-printed forms with hidden, “surprising” terms that are utterly unfair and one-sided to the point of being oppressive.

Illegal contracts, in contrast, are not voidable at the election of the aggrieved party. Rather, they are deemed void ab initio, which is to say, invalid and without legal effect from the outset.

Fraud. I alluded above to the use of fraud to trick a party into accepting an unfair contract. Let me return to this point, which unfortunately arises all the time in commercial and private dealings. Trickery, deceit, and treachery are as old as humanity itself. The different kinds of deceit used are as wide-ranging and varied as human invention and imagination allow.

Sometimes a party to a contract will belatedly discover that he was duped into agreeing to it in the first place. Such a party might wish to be excused from performing the contract on the related grounds of intentional and negligent misrepresentation.

Misrepresentation is said to occur when the following events occur during pre-contract negotiations:

  • One party (the offending party) states a matter of “material” fact to the other, doing so in effort to induce the other party (the deceived party) to agree to a proposed contract.
  • The deceived party, having heard the statement, is induced by it to enter into the proposed contract, and under the circumstances it is reasonable for him to have relied on the statement and to have been induced by it to enter into the proposed contract.
  • The statement proves to be false.
  • The offending party either knew at the time that it was false (intentional misrepresentation) or recklessly made the statement without regard to whether it was true or false (negligent misrepresentation).
  • Having been thus induced into the proposed contract on the basis of false statement of material fact, the deceived party suffers proximate losses in consequence.

If the deceived party can prove each of these points, he can make a claim against the offending party for intentional or negligent misrepresentation, which, once proven, entitles him to either (1) rescission of the contract, restitution of sums given, and incidental damages; or (2) all losses proximately caused by the fraud. The deceived party may elect his remedy after proving his case. Since both intentional and negligent misrepresentation arise by definition from the fraudulent behavior of the offending party, the deceived party can also seek and recover punitive/exemplary damages.

Conclusion

Different kinds of contracts are used to accomplish different purposes. For example, leases are used to sell the possession of real property for a specified term, while contracts for sale of property are used for the sale and transfer of title to real property. Insurance contracts are used to sell insurance against loss in exchange for certain payments at specified intervals. When you order a plate of pasta, you have made a contract with restaurant where you have ordered it. The list of actual and possible contracts is infinite: Contracts are the means by which legal persons in our society agree to exchange goods, services and other valuable things.

For contracts issues contact;

Stephen Tumaini Mduma
Chief Executive Officer
SEMKO CONSULTANTS LTD
P.O.BOX 12027
Dar es Salaam
Tanzania
+255 713 00 00 96
email;sempaimduma@yahoo.com
Webpage. http://www.facebook.com/pages/Semko-Consultants-LTD/156975847746848

IS IT IMPORTANT TO PREPARE A WILL FOR YOUR SELF?

In a will, a person or “testator” expresses, in writing, what he (or she) wants done with his property after he dies.

Living wills- sometimes called health care directives- are for adults of all ages, not just the elderly.

Some of the most famous court cases about the right to die have involved those in their 20s.

There are good reasons to write down your wishes about end-of-life medical care:

  • You might be too sick to express yourself when the time comes
  • Your family might disagree about what to do, which leaves doctors in a tough spot and more likely to keep you on life support
  • You can help your family with the really tough decision of whether or not to take you off life support
  • Living wills often include legal protection for doctors and hospitals, so they don’t get sued for honoring your request
  • Different states have different rules for what living wills should cover, but they all allow you to decline aggressive life support if you’re close to death, without affecting your right to get pain medicine or other “comfort care.”

Nor is refusing medical treatment considered suicide; it’s not illegal or immoral to let nature take its course.

You definitely need a will if you have children.

Even if you don’t have children, you probably need a will

Kindly Regards.

Stephen Tumaini Mduma

Chief Executive Officer

SEMKO CONSULTANTS LTD

P.O.BOX 12027, Dar es Salaam. Tanzania

+255 713 00 00 96

email;sempaimduma@yahoo.com
Webpage. http://www.facebook.com/pages/Semko-Consultants-LTD/156975847746848

KATIKA KESI YA LULU KWA TAFSIRI YANGU; SHERIA YA MTOTO NO 21 YA 2009 KIFUNGU CHA 113 (1) NA KWA HATUA YA KESI HUSIKA ILIPOFIKIA HAKIMU MKAZI WA KISUTU YUKO SAWA.

  • Pingamizi ni sehemu ya kesi kwahiyo inapaswa kusikilizwa na mahakama husika.

    Ombi namba 46 ya mwaka 2012, mawakili wa utetezi wanaiomba Mahakama Kuu itoe uamuzi kama Mahakama ya Kisutu ina uwezo wa kuamua ufanyike uchunguzi wa umri halali wa msanii huyo.

    Pingamizi la awali hali wekwi kama hakuna kesi, na mara nyingi kama sio zote mahakama inayo sikiliza pingamizi ndio mahakama inayo sikiliza kesi husika

MAOMBI ya uchunguzi wa umri wa muigizaji wa filamu, Elizabeth Michael (Lulu) anayekabiliwa na kesi ya mauaji, yamepangwa kusikilizwa Mahakama Kuu Kanda ya Dar es Salaam Mei 28, 2012.

Lulu anakabiliwa na kesi ya mauaji ya msanii mwenzake, Steven Kanumba, katika Mahakama ya Hakimu Mkazi Kisutu.

Maombi hayo yaliwasilishwa Mahakama Kuu na mmoja wa mawakili wake, Peter Kibatala, Mei 17 wakidai mteja wao ana umri wa miaka 17 tofauti na hati ya mashataka inayo onyesha umri wa miaka 18.

Habari ambazo zilipatikana Ijumaa Mei 18, 2012 kutoka mahakama kuu na kuthibitishwa na Wakili Kibatala zinasema kuwa maombi hayo yamepangwa kuanza kusikilizwa Mei 28 na atakaye sikiliza ni mheshimiwa Jaji Dk Fauz Twaib.

Katika maombi namba 46 ya mwaka 2012, mawakili hao wanaomtetea msanii huyo wanaiomba Mahakama Kuu itoe uamuzi kama Mahakama ya Kisutu ina uwezo wa kuamua ufanyike uchunguzi wa umri halali wa msanii huyo.

Jopo la mawakili hao maarufu linadai kuwa linaamini kuwa Mahakama ya Hakimu Mkazi Kisutu ambayo kwa sasa ndio bado inayoshughulikia kesi hiyo, ina mamlaka ya kufanya au kuamuru ufanyike uchunguzi wa umri mshtakiwa huyo.

Lakini pia wanaiomba Mahakama Kuu kama itaridhika kuwa Mahakama ya Kisutu haina uwezo huo, basi Mahakama Kuu yenyewe ifanye uchunguzi huo.

Kabla ya kuwasilisha maombi hayo Mahakama Kuu, mawakili hao waliwasilisha maombi katika Mahakama ya Hakimu Mkazi Kisutu Mei 7, 2012 wakiiomba iamuru kesi ya msanii huyo isikilizwe katika mahakama za watoto.

Mawakili hao walidai mahakamani hapo kuwa msanii huyo ana umri wa miaka 17 na kwamba kwa maana hiyo yeye bado ni mtoto na kesi yake haipaswi kusikilizwa katika mahakama za kawaida kama mtu mzima.

Kiongozi wa jopo la mawakili wanaomtetea msanii huyo wakili Kenedy Fungamtama alidai kuwa mteja wao ana umri wa miaka 17 na si 18 kama inavyotamkwa mahakamani.

“Sheria ya Mtoto ya mwaka 2009 inatafsiri kuwa mtoto ni yule aliyekuwa na umri chini ya miaka 18 hivyo katika suala la mteja wetu alipaswa kushtakiwa katika mahakama ya watoto,” alidai Wakili Fungamtama.

Hata hivyo upande wa mashitaka kupitia kwa wakili Elizabeth Kaganda ulipinga maombi hayo na kudai kuwa bado wanaendelea na upelelezi wa kesi hiyo na hivyo kuomba wapewe muda zaidi.

Katika uamuzi wake, Hakim Mkazi Augustina Mmbando anayesikiliza kesi hiyo alisema kesi hiyo bado iko kwenye upelelezi na kwamba kulingana na jinsi ilivyo isingekuwa busara kuamua hoja yoyote.

Hivyo Hakimu Mkazi Augustina Mmbando anayesikiliza kesi hiyo, aliutaka upande wa utetezi uwasilishe maombi hayo kupitia Mahakama Kuu.

Msanii huyo bado anaendelea kusota rumande kutokana na kesi inayomkabili kutokuwa na dhamana na kesi hiyo itatajwa tena mahakamani hapo Mei 21 mwaka huu.

Bahada ya malumbano hayo nimejaribu kuipitia sheria ya mtoto no 21 ya mwaka 2009, hususani kifungu cha 113 (1).

Kifungu hicho Kinasema wazi, “ikiwa mtu yoyote akiwa anashitakiwa au hapana, akapelekwa mahakamani kwa namna nyingine zaidi ya kutoa ushahidi, na ikaonekana na mahakama kuwa ni mtoto, mahakama itatakiwa kufanya uchunguzi wa umri wa mtu huyo”.

Je kipengele hiki kinatumika wakati gani?

Swali la Msingi ni je kifungu hiki kinaruhusu kutumika hata kwa hatua ambayo mahakama ipo kwa sasa {Kesi ya Lulu} katika committal proceedings kufanya due inquiry kuhusiana na umri wa mtu anayehisiwa / dhaniwa kuwa ni mtoto?

Labda ningependa watu wajue nini maana ya committal proceedings  and why committal proceeding?

Committal proceeding kwa kiswahili rahisi ni utaratibu wa kisheria ambao mahakama fulani ambayo haina nguvu kisheria kusikiliza kesi tajwa inapewa nguvu ya kukusanya taarifa zote mhimu na kuziwasilisha katika mahakama husika.

Mfano mzuri ni pale panapotokea kesi ya mauaji ambapo mahakama kuu tu ndio yenye nguvu kisheria kusikiliza kesi hizo.

Mahakama ama ya mwanzo, wilaya, au hakimu mkazi inatumika katika hatua za awali kama kumuandikia hati ya wito, kumsomea mashitaka, na kadhalika ila mshitakiwa hatotakiwa kujibu lolote {kama ilivyo sasa kwenye kesi ya Lulu}.

Kwanini utaratibu huu umewekwa?

Utaratibu huu umewekwa kwa mahakama za chini kuisaidia mahakama kuu katika mambo ya awali kabla ya kusikiliza kesi hizo zilizotengwa maalumu kwa ajili ya mahakama kuu.

Hii husaidia kuharakisha mwenendo wa kesi kwani ikifika mahakama kuu basi mambo mengi ya awali huwa yameshakamilishwa katika mahakama za huku chini na pia kupunguzia mzigo mahakama kuu.

Hivyo kinachofanyika sasa hivi katika mahakama ya hakimu mkazi kisutu kuhusiana na kesi ya mauaji inayomkabili muigizaji chipukizi Lulu ni committal proceedings ambako kesi inaishia kutajwa na si kusikilizwa.

Hii ni kwasababu kesi ya mauaji inaangukia katika makundi ya kesi zinazoweza kusikilizwa mahakama kuu tu na mahakama ya rufaa iwapo kutakuwa na rufaa.

Swali la kujiuliza ni je katika hatua ya awali ya kesi kutajwa tena na mahakama ambayo haina nguvu kisheria kusikiliza kesi hiyo pingamizi lolote linaweza kusikilizwa?

Kwa tafsiri yangu ya sheria ni kwa kukubali kusikiliza pingamizi katika kesi ambayo mahakama haina nguvu kisheria kusikiliza kesi husika ni kukiuka sheria kwakuwa tayari utakuwa umeanza kusikiliza sehemu ya kesi ambayo ni pingamizi.

Kwanini nasema hivyo, pingamizi la awali haliwekwi kama hakuna kesi, na pili, mara nyingi kama sio zote mahakama inayosikiliza pingamizi ndio mahakama inayosikiliza kesi husika.

Hivyo kukubali mahakama ya hakimu mkazi kisutu isikilize pingamizi la umri wa lulu ni sawa na kusikiliza sehemu ya kesi hiyo.

Kifungu hicho cha sheria ya mtoto walichokitaja hakikumaanisha kuwa hata katika committal proceeding mahakama chini ya mahakama kuu inaweza kufanya due inquiry kuhusu umri.

Iwapo draftmen walikuwa wanamaanisha hivyo basi wangeonyesha wazi kuwa iwapo mahakama itakuwa ina wasi wasi na umri wa mtu Fulani kuwa yawezekana ni mtoto basi hata kama kesi iyo ipo katika committal proceeding ichunguzwe vinginevyo inabaki kuwa kama hakimu mkazi kisutu alivyooamua.

Ni mahakama kuu tu ndio ina uwezo wa kusikiliza pingamizi la mwanzo kuhusiana na kesi ya mauaji kwakuwa ni mahakama pekee kisheria yenye nguvu kusikiliza kesi hiyo.

Ndio maana hata mawakili waliomba mahakama kuu wamesema kama maamuzi yaliofanywa mahakama ya hakimu mkazi kisutu ni sahihi basi mahakama kuu ilisikilize pingamizi hilo.

Watu waelewe pia hakimu mkazi huyu hakukataa pingamizi ila alikataa kusikiliza pingamizi.

UTATA WA UMRI WA LULU; PINGAMIZI LAWEKWA NA UPANDE WA UTETEZI.

  • Wanasheria wasema ni utaratibu wa kawaida katika kesi

  • Hatua hiyo haina maana hoja ya mshitakiwa imekataliwa.

UMRI wa msanii wa filamu, Elizabeth Michael maarufu kama Lulu anayekabiliwa na mashtaka ya mauaji ya msanii mwenzake, Steven Kanumba Jumatatu Mei 7, 2012 ulizua utata katika Mahakama ya Hakimu Mkazi Kisutu, baada ya mawakili wanaomtetea kutaka kesi hiyo iondolewe mahakamani hapo ili akashtakiwe kwenye Mahakama ya Watoto.

Lulu alifikishwa mahakamani hapo saa 2:50 asubuhi akiwa peke yake kwenye gari linalobeba mahabusu, huku akisindikizwa na magari mengine mawili.

Alipoingia mahakamani alikuwa amezingirwa na askari Magereza na Polisi zaidi ya 10 na kuufanya  umati mkubwa wa watu uliofurika mahakamani hapo kushindwa kumwona vizuri.

Miongoni mwa watu waliofika mahakamani hapo ni baba mzazi wa msanii huyo, Michael Kimemeta na ndugu zake wengine kadhaa.  

Kesi hiyo ikitajwa kwa mara ya 3 Jumatatu Mei 7, 2012 huku mawakili wanaomtetea wakiongozwa na Keneth Fungamtama, wakiwasilisha maombi kuhusu suala hilo la umri wa mteja wao wakitaka asishtakiwe mahakamani hapo kama ilivyo sasa.

Fungamtama ambaye alikuwa akisaidiana na Mawakili Peter Kibatala na Fulgence Masawe, alidai mahakamani hapo kuwa mshtakiwa huyo ana umri wa miaka 17 hivyo, kesi yake ilipaswa kusikilizwa katika Mahakama ya Watoto.

“Mshtakiwa ana umri wa miaka 17 na tuna uthibitisho wa cheti cha kuzaliwa ambacho kinaonyesha mahali na tarehe aliyozaliwa mshtakiwa,” alidai Fungamtama.

Fungamtama alisema Kifungu cha 4 cha Sheria ya Mtoto ya mwaka 2009 Kipengele namba 21, kinatamka wazi kuwa mtoto ni yule aliye na umri chini ya miaka 18.

Wakili huyo aliendelea kunukuu vifungu mbalimbali vya Sheria ya Mtoto kama 98 (i) na 114 (ii), ambavyo alidai kuwa vyote vinawapa nguvu ya kuwasilisha maombi yao hayo ya kuihamisha kesi hiyo.

“Hata katika suala la Mahakama, vifungu vyote vya sheria hii vimefafanua, hivyo tunawasilisha maombi yetu kwamba mteja wetu ana umri wa miaka 17 na shauri hili lingepaswa kusikilizwa Mahakama ya Watoto,” alidai.

Kwa upande wake, Wakili wa Serikali, Elizabeth Kaganda aliomba wapewe muda zaidi kwa sababu bado wanaendelea na upelelezi wa kesi hiyo.

“Kesi hii imekuja mahakamani hapa kama ya mauaji na upelelezi bado haujakamilika.

Tunaposema haujakamilika, tunapeleleza kila kitu, likiwamo suala la umri,” alieleza Kaganda.

Alisema hata jina linaloonekana katika cheti cha kuzaliwa kilichowasilishwa mahakamani hapo, linasomeka Diana Elizabeth wakati mshtakiwa ametajwa mahakamani hapo, kwa jina la Elizabeth Michael.

“Tunaomba muda tuweze kuchunguza kuhusu umri wa mshtakiwa kwa sababu aliwaeleza polisi kwamba ana umri wa miaka 18 halafu mawakili wake wanakuja kueleza hapa mahakamani kwamba ana umri wa miaka 17,” alidai Kaganda.

Wakili huyo wa Serikali alidai kuwa kutokana na mvuto wa kesi hiyo katika jamii, wanaomba wapewe muda zaidi kufanya upelelezi ili kumtendea haki mshtakiwa huyo.

Kuhusu cheti hicho kusomeka Diana Elizabeth, Wakili Fungamtama alikiri na kudai kuwa ni jambo la kawaida hasa kwa Wakristo kuwa na majina mawili.

Fungamtama alidai kuwa hawana pingamizi na maombi ya upande wa mashtaka kwamba wapewe muda zaidi wa kufuatilia cheti cha kuzaliwa cha mshtakiwa, ingawa alidai kuwa suala hilo halina ugumu.

Akitoa uamuzi baada ya kusikiliza hoja za pande zote, Hakimu Mkazi Augustina Mbando alisema: “Mahakama imesikiliza maombi yaliyoletwa na Fungamtama na Kaganda na imeona kesi iliyopo hapa ni ya mauaji na jinsi kesi hii ilivyo, hatuwezi kufanya hoja yoyote hadi upelelezi utakapokamilika.”

“Kama defence (upande wa utetezi) wana maombi yoyote wanaweza kufanya hivyo kupitia Mahakama Kuu,”

Kesi hiyo imeahirishwa hadi Mei 21, mwaka huu itakapotajwa tena. Inadaiwa kuwa Aprili 7, mwaka huu katika eneo la Sinza Vatican, Dar es Salaam msanii huyo wa kike, alimuua Kanumba.

MWONGOZO KUHUSU PINGAMIZI LA MWANZO KISHERIA

Pingamizi la mwanzo ni utaratibu katika sheria ambao unaruhusu moja kati ya pande mbili katika ama kesi ya jinai au shauri la madai kupinga kwa kukazia makosa yaliojitokeza ama katika maelezo ya matukio au/na sheria kama yalivyosomwa au kuandikwa na upande mwengine.

Pingamizi la mwanzo mara nyingi kama sio zote linakuwa katika namna ya maandishi likiutaarifu upande wa pili kuwa ktk siku ya kwanza ya kusikilizwa kesi au shauri husika basi mdai/mshitaki au mdaiwa/mshitakiwa atapinga ama matukio fulani yanayodaiwa kuwa ameyafanya na/ama sheria fulani imetumika visivyo. Mara nyingi pingamizi linatakiwa liwekwe

WANASHERIA WASEMA NI UTARATIBU WA KAWAIDA KATIKA KESI.
HATUA HIYO HAINA MAANA HOJA YA MSHITAKIWA IMEKATALIWA.