Posted by Jaba Shadrack , Wednesday, July 16, 2014
CHAPTER 7: THE JUDGEMENTS EXTENSION ACT (Tanzania)
[Kenya - 13th April, 1921
Zanzibar - 13th April, 1921
Uganda - 27th September, 1921
Malawi - 5th July, 1922]
Ord. No. 13 of 1921
[R.L. Cap. 7]
ARRANGEMENT OF SECTIONS
1. Short title.
2. Transfer and execution of decrees.
3. Execution of warrants.
4. Security to be taken from plaintiff and courts to be indemnified.
6. Power to extend Act to other countries.
CHAPTER 7: THE JUDGEMENTS EXTENSION ACT
An Act to make provision for the execution of decrees and warrants of civil courts of neighbouring countries.
1. Short title
This Act may be cited as the Judgements Extension Act.
2. Transfer and execution of decrees
Where a decree has been obtained or entered up in the High Court of Kenya, the High Court of Uganda, the High Court of Malawi or in the High Court of Zanzibar or in any court subordinate to any of those courts for any debt, damage or costs and where it is desired that the decree shall be executed upon the person or property of the defendant in Mainland Tanzania, the decree may be transferred to the High Court of Tanzania (hereinafter called the High Court) or to any of the courts subordinate thereto (hereinafter called subordinate courts) for execution, and the provisions of the Civil Procedure Code * for the transfer and execution of decrees shall apply in the same manner as if the decree had been obtained or entered up in one Court and were transferred for execution to another court within the jurisdiction of the High Court, and after the transfer all proceedings shall, be had and taken as if the decree had been a decree originally obtained in the High Court or a subordinate court, and all the reasonable costs and charges with regard to the transfer and execution of the decree shall be recovered in like manner as if they were part of the original judgement.
3. Execution of warrants
(1) When any warrant issued by the High Court of Kenya, Uganda, Malawi or Zanzibar or by any court subordinate to any such Court for the arrest of a defendant in a civil case either before or after judgement, a judge of the High Court or a magistrate of a subordinate court shall have power–
(a) to endorse and execute the warrant; or
(b) to issue, before such endorsement, a provisional warrant for the arrest of the defendant, upon receipt of telegraphic or other information and in such circumstances as would in his opinion justify the issue of a warrant in a civil case within his jurisdiction:
Provided that a person arrested under a provisional warrant shall be discharged unless the original warrant is produced and endorsed within such reasonable time as may in the circumstances seem requisite:
Provided also that no such warrant shall be endorsed or executed and no provisional warrant shall be issued, unless the warrant or information from the court desiring the arrest is accompanied by an intimation that such court indemnifies the High Court or subordinate court against all costs, charges and expenses to be incurred by the High Court or the subordinate court.
(2) The provisions of the Civil Procedure Code *, for the arrest of defendants before and after judgement shall apply in the same manner as if the suit had been originally instituted in the High Court or a subordinate court and all reasonable costs and expenses with regard to proceedings for arrest shall be recoverable in like manner as if they had been incurred in the court in which the suit has actually been instituted.
4. Security to be taken from plaintiff and courts to be indemnified
A judge of the High Court or a magistrate of a subordinate court requesting the arrest of a defendant under any law similar to this Act by any court in Kenya, Uganda, Malawi or Zanzibar shall, before communicating with a court in any of those countries, take security from the plaintiff in such sum as shall be sufficient to cover all the costs, charges and expenses to be incurred by the court to which the application is made and shall indemnify that court against all those costs, charges and expenses.
The fees to be paid for any process or proceeding under this Act shall be prescribed from time to time by the High Court with the approval of the Minister responsible for legal affairs.
6. Power to extend Act to other countries
The President may, by notice published in the Gazette extend the provisions of this Act to decrees passed and warrants issued in any other country which is a member of the Commonwealth or is a dependant of that country.
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Posted by Jaba Shadrack , Monday, July 14, 2014
The judgment by the High Court of Tanzania (Land Division) giving residents of Mbezi area along Dar es Salaam’s Morogoro highway the right to stay undisturbed after winning a case is being tempered with by the Works ministry through the Tanzania National Roads Agency (Tanroad).
Tanroad is currently demolishing structures including residential houses along the strip to pave the way for construction of a special park for lorries adjacent to the highway.
The residents are blaming Tanroads for starting to demolish their residences while it has not fulfilled the conditions given by the High Court Land Division.
Last year the High Court declared in its ruling that residents were lawful owners of the land.
The ruling by Judge S.B. Bongole said in part, “All in all, I hereby declare the plaintiffs lawful owners of the land in dispute and the notice issued to them by the defendants dated August 11, 2004 are annulled accordingly. Should the defendants be interested with the land in dispute, they are hereby ordered to comply with the directives I have given.”
The High Court ordered the defendants (government) that if it was interested with the disputed land it should compensate the residents by filling village land form No 15 and present the same to relevant authorities for action.
It also ordered that if the government is interested with the land in dispute as a road reserve, it should give notice of intention to transfer the village land to reserve land by filling village form No 8 in compliance with Section 4 of the Village Land Act, 1999, Act No 5 of 1999 and the Village Land Act Regulations of 2002.
Furthermore the court ruled that the villagisation process disregarded the Highway Ordinance of 1967 and particularly the Government Notice (GN) number 161 of 1967 which become invalid to the extent of inconsistency with Section 15 of the Village Land Act.
It said that Sections 15 and 16 of the Village Land Act with regard to the case, expressly extinguished rights and interests vested in the land in dispute by GN number 161 of 1967 and confirmed and created validity to the residents who were allocated the same by the relevant authorities during and after the villagisation process.
Speaking to The Guardian yesterday in Dar es Salaam, Doroth Terry resident of Mbezi Luis who has been ordered to vacate by today said Tanroads was going against the court directives because she has not yet been compensated.
Terry said that she has been living in the area for 30 years and that the demolition done by Tanroads Dar es Salaam is in form of harassment.
She said that the High Court ruling was on May, 31, 2013 but Tanroads was going on with demolitions of people’s houses that they are in the road reserve.
She added for more than 10,000 houses are going to be affected with the ongoing demolition being implemented by Tanraoads.
The residents’ legal adviser, advocate Benitho Mandele said that the demolitions are carried out due to contradictions created by the Town and Urban Planning Act and the Highway Act.
Mandele clarified that the Town and Urban Planning Act states that the road reserve should be 30 meters from the centre of the road while in the Highways Act road reserve should be 121 meters from the centre of the road.
Advocate Mandele said that the case has caused the residents to fail developing their plots for fear of being evicted.
“Mbezi residents see their land as valueless because they cannot develop it by building business premises. They cannot also go for bank loans although they have title deeds because everybody and every financial institution understands that areas is reserved for road construction which is not the fact,” Mandele said.
Reached for comment, Dar es Salaam Tanroads Manager, Julius Ndyamukama told The Guardian that currently the government is using the Road Act of 2007 to set road reserve which holds that 121 meters should be measures from the centre of the road.
He said that Tanropads cannot seek demolition permit from the court while the area that it wants to demolish belongs to the government.
Ndyamukama added that the court ruling does not apply to the area where the residents are complaining about.
He admitted that demolition was going on whereby some residents have accepted, while others are still resisting and are requesting help from the Regional Commissioner so that Tanroads may not continue with the exercise in their areas.
Efforts to reach the Works Minister and his deputy minister proved futile.
SOURCE: THE GUARDIAN
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Posted by Jaba Shadrack , Saturday, July 12, 2014
The Judiciary has made a list of proposed amendments to the Constitution which will seek to raise the retirement age for judges.
The new proposed amendments, which are to be incorporated in the Constitutional Amendment Bill, were submitted to the Minister of Justice and Constitutional Affairs, Maj Gen Kahinda Otafiire, on May 16 for Cabinet consideration.
The Judiciary recommends that the retirement age of the Supreme Court, Court of Appeal and Constitutional Court judges be raised from the current 70 to 75. The Judiciary also proposes that a High Court judge retires at 70 years, contrary to the current retirement age of 65.
The proposed amendments are likely to draw mixed reactions from the public, coming at a time when the current stand-off following President Museveni’s reappointment of former Chief Justice Benjamin Odoki back to the bench and as head of the Judiciary, has not been resolved. The reappointment has been challenged in court by Western Youth MP Gerald Karuhanga, who says Mr Odoki’s reappointment is unconstitutional since he clocked the mandatory retirement age of 70.
The Judiciary, however, insists the move to raise the retirement age of judges is to enhance delivery of justice.
“Judges retiring at the age of 65 and 70 as the case may be, are still capable of performing their duties with distinction. Besides, the quality of a judge increases with age and experience, which may be lacking in much younger people. In addition, Ugandan judges, who have retired from service, are normally hired by other countries to serve as judges who benefit from judges they never trained, mentored or coached,” reads the draft of the proposed amendments sent to cabinet.
The Judiciary further reasons that the retirement of judges at the current age limits, leaves the country with a burden of recruiting and training new judges who hardly serve for 10 years before hitting the retirement age.
Appointment of Deputy Chief Justice
Under the current Constitution, particularly Chapter 8, the Deputy Chief Justice is not a member of the Supreme Court but of the Court of Appeal which also constitutes itself into a Constitutional Court when hearing a constitutional case. The Deputy Chief Justice is head of the same court, which is the second highest court to the Supreme Court.
Under the proposed amendments, the Judiciary wants this hierarchy to be revised and make the Deputy Chief Justice a member of the Supreme Court. The Judiciary contends that this will help the Deputy Chief Justice to deputise the Chief Justice effectively, guide the entire Judiciary and that this will “augur” well with the hierarchy in the judiciary.
The Judiciary further recommends that the Court of Appeal/Constitutional Court be headed by a justice to be conferred upon the title of “President of the Court of Appeal” and not the Deputy Chief Justice as is the case now.
Appointment of administrative staff
Currently, the administrative staff of the judiciary is appointed by the Judicial Service Commission (JSC) and the Public Service Commission.
The Judiciary says this creates double allegiance and distorts the delivery of justice. For that reason, the Judiciary proposes an amendment to the Constitution that with exception of the Secretary to Judiciary who is appointed by the President to manage funds, all the administrative staff of the judiciary be recruited by the JSC.
Appointment of acting justices
Currently there is no provision to cater for the appointment of “acting judges” on a short-term tenure to deal with case backlog and emergencies. It says that in other jurisdictions, acting justices can be appointed from serving judicial officers on a short term basis to assist courts in handling case backlog. The Judiciary recommends that the President be given powers to appoint acting judges but upon the advice of the Chief Justice and JSC.
Appointment of justices of Supreme Court and Court of Appeal/Constitutional Court
The number of justices of the Supreme Court and Court of Appeal/Constitutional Court was recently raised from 7 to 11 and 9 to 15 respectively. However, the proposal is that the number be again increased further to 15 for the Supreme Court and 28 for the Court of Appeal/Constitutional Court to manage the increasing litigation and case backlog in courts.
Representation on JSC
The other proposed amendments include; having a lower judicial officer such as a magistrate or registrar to represent views of the lower courts on the Judicial Service Commission. Currently, one Supreme Court justice represents the views of the whole Judiciary on the JSC.
Removal of judge from office
Currently, a judge can be removed from office for inability to perform the functions of his/her office arising from the infirmity of the body or mind.
The decision of the tribunal on health matters affects the timely removal of a judge from the office because their recommendations are not informed by the medical board.
But in the proposed amendment draft, the Judiciary recommended that the affected judge should be referred to the Medical Board by the Tribunal appointed under Article144 of the Constitution which shall act on the report to decide whether or not to remove a judge from office.
Special courts for terrorism
The other proposals include creation of special courts to handle terrorism and minimum years of legal experience for a person to qualify for High Court judge.
The Judiciary has recommended that the International Crimes Division of the High Court (ICD) that was set up to try terrorism cases, be empowered to try these cases. So far, only five cases have been handled in this court ever since its inception about three years ago.
Chief Justice to head JSC
Currently, the Judicial Service Commission (JSC) is being chaired by a person who is qualified to be appointed a justice of the Supreme Court other than the Chief Justice, Deputy Chief Justice and Principal Judge.
However, during brain storming, a section of those involved in coming up with views suggested that the Chief Justice be made the head of the JSC too so that he may have meaningful control of the affairs and management of the Judiciary.
They also suggest that Uganda should pick a leaf from the Judicial Service Commissions in the East African member states and other African countries that are chaired by the Chief Justice.
The other reason they gave in support of having the Chief Justice as the head of JSC was to have him/her have a say and control of disciplinary matters in the Judiciary.
They also suggest that the Chief Justice should be at par with other arms of government that have full control of their arms like how the Speaker of Parliament who also heads the Parliamentary Commission.
But on the Contrary, another section of those collecting views for the proposed constitutional amendments opposed the amendment to have the Chief Justice as the head of JSC.
They argued that such a scenario could see the Chief Justice favouring a section of certain people and deny some appointment to the bench.
They also suggest that the absence of the Chief Justice from the JSC safeguards internal Judiciary staff against the excesses and whims of the Chief Justice.
Considering the pros and cons of having the Chief Justice as the head of JSC, the Judiciary decided to answer the same in the negative by agreeing not to have the Chief Justice as the head of the JSC.
Attorney General consulting Supreme Court: There is no provision in the Constitution that requires the Attorney General (AG) to seek legal advice from the Supreme Court on issues of law and constitutional interpretation except through a constitutional petition.
The Judiciary says this limits the chief government legal advisor from seeking the opinion of the Supreme Court on constitutional matters, which may not be under dispute but require clarity and if that clarity is sought by way of opinion, the process would be lengthy.
The Judiciary now recommends in its amendment draft that a lesson be drawn from the sister regional states and provide for the AG to seek an opinion from the Supreme Court.
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