INHERENT POWER OF THE COURT IN TANZANIA

By Jaba Shadrack, 2009

The phrase Inherent Power (i.e. Inherent Authority) is defined in Black's Law Dictionary as;

"Powers over and beyond those explicitly granted in the Constitution or reasonably to be implied from express grant..."

It is broadly understood to cover powers thought essential to the existence, dignity, and functions of the court, or to ensure an orderly, efficient, and effective administration of justice.

The Speaker of the Parliament of the United Republic of Tanzania (hereinafter the Speaker) wish to know about the inherent power of the court. In that regard, I have prepared a reasoned opinion on the matter.

This essay will be striving to answer notable legal issues such as whether the court in Tanzania has inherent powers in dispensation of justice; whether courts can only exercise inherent powers where vested in them by statutes; and lastly, whether such inherent power interferes the legislative power of the parliament.

Generally, there are two doctrines that act as a basis of the inherent powers of the court, namely as the Separation of powers doctrine and, Courts' sheer existence doctrine.

In Separation of powers doctrine; the judiciary is under duty to perform its adjudicative functions effectively and efficiently. Inherent powers enable the judiciary to perform its constitutional functions and permit it to acquire crucial support and resources for realising these functions. Similarly, the judiciary has the power necessary to protect its independence from being encroached while adjudicating neither by the executive and legislative organs.

Under courts' sheer existence doctrine; inherent powers are perceived as ones derived from a court's existence as a court rather than from any constitutional provision. In this doctrine, courts must have the inherent powers to do those things that are reasonable and necessary for the dispensation of justice under the prescribed jurisdiction, in the absent of legislation or constitutional proviso.

Therefore, taking the aforementioned legal doctrines as the basis of my reasoning, I respond to the aforesaid issues as follows;

In a nutshell, the court in Tanzania has inherent powers (authority) to adjudicate on certain matters, even with or without express provision of the law. These powers of the court are provided under various Statutes or case laws, and may also be implied in the Common Law practice.

Starting with the first issue; in civil cases, the District, Resident Magistrate and High courts have inherent powers by virtue of the Civil Procedure code, 1966 [RE: 2002]. The section reads as, I quote;

"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court."

The essence of Section 95 is that, whenever it is necessary for the ends of justice or to prevent abuse of Court process, the powers of Court are not barred and even if there is no specific provision which permits the Court to do so (i.e. the Code is silent on that point) the Court can exercise its inherent power to do justice to parties. It is more often understood that where there is a prohibition express or implied in the statute, the Court cannot invoke section 95. However, in Adonia v. Mutekanga, Spry J.A was of the views that;

".....the position, as I understand it, is that the court will not normally exercise their inherent powers where a specific remedy is available and will rarely if ever do so where a specific remedy existed but, for some reason, such a limitation is no longer available. The High Court is a court of unlimited jurisdiction, except so far as it is limited by a statute, and the fact that a specific procedure is provided by rule cannot operate to restrict the courts".

In the case of Transport Equipment Ltd. V. Devram P. Valambhia,

a full bench of seven justices, considered the Courts power to review its decisions and held that the court has inherent jurisdiction (power) to review decisions and it will do so in any of the following circumstances to wit, where there is a manifest error on the face of the record which resulted in the miscarriage of justice, or where the decision was attained by fraud, or where a party was wrongly deprived of the opportunity to be heard. The Valambhia case (supra) was quoted approvingly in the case of African Marble Co. Ltd (AMC) v. Tanzania Saruji Corporation (TSC) where the Court of Appeal of Tanzania affirmed the inherent powers of the court. In the USA, the court has inherent even to after final judgment, to correct clerical errors or misunderstandings where it fails to conform to the terms of the settlement agreement at issue.

The position taken by the courts in Tanzania does not differ with that of the Indian. This is because section 95 (supra) is in pari materia with section 151 of the India Civil procedure Code, 1908. Justice Prafulla C. Pant says;

"Inherent powers can be exercised only if it is necessary so to do for the ends of justice or for preventing the abuse of process of Court. The expressions "ends of justice" and "abuse of process of the Court" should be interpreted in the light of other provisions of law".

In my findings, there are many circumstances in which the court can exercise its inherent powers both in Civil and Criminal cases. This includes; controlling trial behaviour generally, conducting a fair criminal trial, managing dockets and calendars, changing venue in criminal cases, regulating discovery, issuing protective orders, summoning witnesses and compelling attendance, presenting evidence, appointing court experts, excluding the public in criminal cases, appointing trustees, correcting records and judgments, Judge has inherent power to enlarge the time limitation set out in a statute, overseeing witness fees and expenses, maintaining courtroom decorum, suspending sentences and et cetera. Other areas includes, power to punish for contempt or perjury, power to make rules, power to govern and regulate the bar and practice of law, and the power to manage and regulate the court system.

Coming to the second issue, the court can invoke its inherent power, even, where there is no express provision in the statute. In situations, where statutes, decided cases, court rules, or other authorities fail to provide answers to issues that require resolution during the pre-trial, trial, and post-trial phases of a case, the trial courts have asserted authority to fill in the lacuna in various situations. The court has exercised its inherent power even where the statutes bear an ouster clause, for example, in Mtenga v. the University of Dar es Salaam. The court in its inherent power may strike out the statute, if is found to be unconstitutional. In Attorney General v. Lohay Akonaay and another, the court of Appeal asserted that;

"We are unable, on the authority of reason, to agree with him in the case of statutes found by a competent court to be null and void. In such a situation, we are satisfied that such court has inherent powers to make a consequential order striking out such invalid statute from the statute book". Refer, also the Anisminic case (infra).

Again, the court can correct error of law on the face of record, as it was laid in the case of Anisminic Ltd v. Foreign Compensation Commission. Further, the Court of Appeal of Tanzania had often resorted to its inherent powers to fill in the vacuum on the procedure and time limitation. This is because, there are no rules or statutes providing for the same. In the case of Marcky Mhango v. Tanzania Shoe Co. Ltd &Tanzania Leather Associated Industries Ltd, the Court observed that;

"It is correct that the Court of Appeal Rules do not prescribe any period for an application for review, indeed, the Rules make no provision for review, but it is an exercise deriving from the inherent powers of the Court."

Therefore, the court is not barred to exercise its inherent powers, even, in the absence of express provisions. In order to invoke inherent powers of the court one may apply for discretionary orders such as mandamus, declaratory judgment, contempt, certiorari, debt actions, and ex parte orders. However, in other instances the court has acted suo moto.

With regard to the third issue, in my view, the exercise of inherent power does not violate the legislative power of the Parliament. Since, as per Article 4 of the constitution which provides for separation of power, the same need to be exercised with check and balance.

Generally, it is not clear as to whether the Primary court has inherent power. But in my view, it has, since in proceedings before it, the magistrate may punish one for contempt of court or perjury. Primary, District, Resident Magistrate courts, High court and, the Court of Appeal possesses inherent powers to act "ex debito justitiae", i.e. to do real and substantial justice, since courts are only body, primarily, vested with adjudicative powers. All in all, the High Court in Tanzania has been given supervisory and regulatory powers over the conduct of the lower courts within their respective territorial jurisdiction. Impliedly, it includes inherent powers to intervene in any criminal or civil proceedings to prevent abuse of the process of the court and to secure the ends of justice.

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COPYRIGHT LAW IN TANZANIA (a synopsis)

Jaba Shadrack, 2009

Quiz

1. Using relevant authorities, critically discuss the subject matter of copyright, subsistence and its legal justification.
   
2. Using your own intellectual and creative ideas discuss the differences and similarities if any between musical works and sound recordings and how are these copy-righted works legally protected.
   

QN. 1 [a]

Essentially, copyright is a branch of law granting authors an exclusive privilege to produce, distribute, perform, or display their creative works. Therefore, many jurists copyrights entails the legal right given to the creator of an original work (authorship) exclusive rights to it, usually for a limited time, after which the work enters the public domain. Copyright is simply a right to copy which entitle the holder to financial benefits for his artistic or musical works and sound recordings.

This essay to the large extent intends to dwell in extenso on the subject matter, substance and legal justification of copyright as follows;

The subject matter of copyrights which is eligible for protection in the purview of the Act and, the Berne Convention includes both literary and, artistic works. The above (legal) regimes i.e. municipal and international law enumerates, seriatim, various copyrightable works such as sculpture, motion picture, musical compositions, dramatic works, choreography, lithography, illustrations, maps, sketches, plans relative to geography, topography, architecture or science, pantomime, painting, drawing, sound recording, lectures, books, computer programs, lectures, cinematographic works, tapestry, and exams scripts.

On the other hand, the law covers also the subsistence of copyrights. In the phraseology of both municipal and international legal instruments, for the copy right to subsist in copyrightable works, first, it needs to be an original work from the author (i.e. originality) as a result of exercise of skill and judgment. In the word of Peterson J in University of London Press Ltd., V. University Tutorial Press Ltd., that the work must not be copied from another work i.e., it should originate from the author.
Second, as per Camron J, the thought must be expressed to some extent in some material form enduring more or less permanence (i.e. fixation). In University of London Press Ltd. Case (supra), Peterson J puts it clearly that the expression of thought in case of literary work ought to be printed or in writing. This contention is also supported by the holding in Merchandising Corporation of America v. Harpbond. Finally, the law excludes facts and ideas from being copyrighted. These requirement were stipulated in Harper and Row, Publishers, Inc., v. Nation Enterprises as;

"No author may copyright facts or ideas. The copyright is limited to those aspects of work termed expression that display the stamp of authors' originality".

Basically, various schools of thought substantiate (justify) copyrighting of works. The first school regards copyrighting as a natural right, and therefore, an extension of author's personality. This thinking is derived from John Locke's arguments as to property. The second school associate copyrights to economic theories, in a sense that the author should benefit for investing in creativity, and that to motivate authors to invest effort in creating new works of arts and literature. 

Finally, is the consequentialist school which holds utilitarian views that the law must aim at producing the best result for the society (normally, to balance the individual rights to that of the community).

QN.1 [b]

Musical works and, sound recordings differ substantially and, look alike in some way in terms of their nature, definition, scope of coverage, rights and protection. In that regard therefore, this manuscript will firstly, strive to pinpoint in detail [the] similarities, differences of musical works and sound recordings. Secondly, shade a light on the protection of musical works, and sound recordings.

Primarily, the differences between the two are as follows;

At the first place, musical works contain music as well as any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with music. On contrary, sound recording means a recording of sounds from which sound may be created despite the medium on which such recordings are made or the method by which the sounds may be produced.

Moreover, in musical works, literary works, drama and other artistic works requires originality. While sound recording, films, broadcasting and cable production does not need originality. It should be noted further that in sound recording the author is paid in terms of royalties.

Furthermore, in musical works, the entitlement to copyrights is on the lyricist, composer, the singer or producer, whereas, authors of sound recordings are not necessarily claimers of copyright. In essence, the ownership of sound recordings' copyright will either be vested in the performing artist or sound producer or placed in the joint ownership of the producer and an artist.

Inclusively, musical works includes but not limited to lyrics, poems, melody and tones, whilst, sound recording includes phonograms, and recordings of music, speeches or other sound. Therefore, prima facie, sound recording is derived from musical works in some instances.

Secondarily, the similarities between musical works and sound recording are follows;

At the outset, both are copyrightable works in municipal and international regime. 

Additionally, the authors of both works enjoy rights to adaptation, alteration, translation, assignment and reproduce the work. Apart from that the two works may be fixed or stored on Computer Floppy Disk, Compact Disc, recording on video tape or sculpting it in marble. Finally, both are literary and artistic works altogether. 

Fundamentally, musical works and sound recordings are Copyrightable under the Copyrights and Neighbouring Rights Act, and the Berne Convention for the Protection of Literary and Artistic Works respectively, thus, becoming free from any infringement. In the purview of the said laws the author may sue for damages or for other court orders. This is exemplified by In early 2006, the writers of Lee Hyori's song "Get Ya" were accused of plagiarizing Britney Spears' 2005 song "Do Something'". This eventually led Lee Hyori to stop promoting the song and contributed to the failure of the song and its album, Dark Angel. In early 2007, Timbaland was alleged to have plagiarised several elements (both motifs and samples) in the song "Do It" on the 2006 album Loose by Nelly Furtado without giving credit or compensation.

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GEOGRAPHICAL INDICATION

Jaba Shadrack, 2009

General introduction

A geographical indication (hereinafter G.Is) is a sign used on goods that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that place of origin. G.Is may be used for a wide variety of products, whether natural, agricultural or manufactured. In some countries protection is granted by means of G.Is for viticulture and agricultural products, while in others, the economic interest of certain products has led to protection being given to non-agricultural products such as mineral waters, beers, porcelains and semi-precious stones. E.g. "Bohemia" is taken as a G.I in many countries for products made in the Czech Republic, particularly, crystal-ware.
The problem arises where names that are protected in one region have a common usage in another. For example, products such as Dijon mustard, Feta cheese, Champagne or Basmati rice are taken to have acquired a generic status. Thus, some may claim that these names should not belong exclusively to a specific group of producers in a specific geographic location as consumers expect these names to identify a class of product that can be produced in one of many locations.

QN. 1

Relevancies of G.Is for agricultural products

Agricultural products typically have qualities that derive from their place of production and are influenced by specific local factors, such as climate and soil. In essence, a G.Is includes the name of the place of origin of the goods.

Commercially, G.Is are distinctive signs of "added value", since they provide a stable and particular level of quality, and endow the product with which they are linked with a number of qualitative features, as a result of which the product is accepted and distinguished by consumers worldwide.

QN. 2

How G.Is does?

A G.Is point to a specific place, or region of production, that determines the characteristic qualities of the product which originates from that place. Typically, such a name conveys an assurance of quality and distinctiveness which is essentially attributable to the fact of its origin in that defined geographical locality, region or country.
It is important that the product derives its qualities and reputation from that place.

They reflect the 'link' or 'bond' existing between a place and a product, the quality feature of which is connected to the geographical medium in which it is produced. Consumers are more demanding as to quality and origin of the different products they acquire, especially where, such features make them more reliable and attractive than other products.

QN. 3

Reasons for protection of G.Is

First, to protect the public from being misled by the goods suggesting to originate in a certain area, other than the true place of origin, this is due to the fact that G.Is are understood by consumers to denote the origin and the quality of products. Many of them have acquired valuable reputations which, if not adequately protected, may be misrepresented by dishonest commercial operators. False use of G.Is by unauthorized parties is risky to consumers. Consumers are deceived into believing that they are buying a genuine product with specific qualities and characteristics, when they are in fact getting an imitation.

Second, to bar acts that amount to unfair competition or advantages as to the misuse of G.Is, consequently, legitimate producers are deprived of valuable business and the established reputation of their products is damaged.

QN. 4

Differences [and similarities] of G.Is and trade marks

Trade marks and G.Is are intellectual property rights, they are trade distinctive signs, but there are several differences between the two, particularly concerning the legal regime and juridical nature. They share the same principles that are common to all intellectual property rights, but with some specialties. G.Is and trade marks are two very interesting signs to put side by side, but the balance between them does not allow an indifference choice.

A trademark is a sign, which is used in the course of trade, and it distinguishes goods or services of one enterprise from those of other enterprises.

Whereas a G.I is an indication used to identify goods having special characteristics originating from a definite geographical territory. It gives its owner the right to exclude others from using the trademark. A trademark will often consist of an imaginary or arbitrary name or device. Whilst a G.I tells consumers that a product is produced in a certain place and has certain characteristics that are due to that place of production. It may be used by all producers who make their products in the place designated by a G.I and whose products share specified qualities. The name used as a G.I will usually be determined by the name of the place of production; this is not the case with trade marks.

The registration of G.Is as trademarks is regulated by the general principles of trademark law. 

According to these principles, G.Is becomes part of the public domain. In principle, immediate G.Is (e.g. names of cities, regions) can not be registered as trademarks. According to the Chiemsee decision of the European Court of Justice, this applies both insofar as such G.Is may be associated with the claimed group of goods by the relevant public, and insofar as there is a future need to keep the G.I free for widespread use.

QN. 5

Introduction

G.Is are protected in accordance with international treaties, national laws, and regional agreement under a wide range of concepts, including; special laws for the protection of G.Is or appellations of origin; trademark laws in the form of collective marks or certification marks; laws against unfair competition; consumer protection laws, and specific laws or decrees that recognize individual G.Is. In essence, unauthorized parties may not use a G.I in respect of products that do not originate in the place designated by that indication. Applicable sanctions range from court injunctions preventing the unauthorized use, to the payment of damages and fines or, in serious cases, imprisonment.

(1) Protection of G.Is at regional level

There are various protection mechanism adopted by different regional blocks, i.e., continental arrangements.

Under European Union Law, the protected designation of origin system which came into effect in 1992 regulates the following geographical indications; protected designation of origin (PDO) and protected geographical indication (PGI) and Traditional Specialty Guaranteed (TSG).

See also, the Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs.

Over 13 countries in Asia (such as Mongolia, North Korea, Thailand or Vietnam among others) have established sui generis protection systems for G.Is in the last five years. On the same line, since 2000 over 12 countries from North and Latin America have adopted a sui generis system for protection of G.Is, namely Colombia, Venezuela, Cuba or Costa Rica. In Africa it is not clear yet; however, some authors have suggested that such protection may be found in ARIPO and OAPI arrangements.

(2) Protection of G.Is at international level

Various conventions under the auspices of WIPO provide for the protection of G.Is, namely as Paris Convention for the Protection of Industrial Property of 1883, and the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration. In addition, Articles 22-24 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) deal with the international protection of G.Is backed by the World Trade Organization (WTO).

Another multilateral protection is under OriGIn, launched in Geneva on June 11, 2003, by producers of G.Is from Africa, Asia, Latin and North America, Eastern and Western Europe. OriGIn is an NGO headquartered in Geneva (Switzerland) and, Secretariat in Alicante (Spain). Basically, it brings together producers from both developed and developing countries that want to enjoy an efficient G.Is protection worldwide.

REFERENCES

• G.E. Evans, and Michael Blakeney,
  Protection of Geographical Indications after Doha: Quo vadis? Journal of International Economic Law, July 12, 2006, [doi: 10.1093/JIEL/jg1016]
  
• Jorge Larson,
  Relevance of Geographical Indications and designation of origin for the Sustainable use of Genetic Resources (2007), The study commissioned by the 'Global Facilitation Unit for Underutilised Species', Rome-Italy. 

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