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Not sure if arrested

Not sure if arrested

They did not disclose to me why I had to wait for such a long period and neither did they refused to give me their particulars. I am now applying for a visa to travel overseas where one of the questions is whether I have ever been arrested. If I answer yes, I might not get the visa. If I answer no, it is unlikely that the embassy will ever know about this incident. What should I do?

FO, Dar

There seems to be confusion whether you were under arrest or not. You were asked to ‘wait’. Your question is what does ‘waiting’ mean by the police and was that ‘waiting’ an arrest. Section 5 of the Criminal Procedure Act (CAP) states that for the purposes of this Act, a person shall be under restraint if he is in the company of a police officer for a purpose connected with the investigation of an offence and the police officer would not allow him to leave if he wished to do so, whether or not the police officer has reasonable grounds for believing that that person has committed an offence, and whether or not he is in lawful custody in respect of the offence.

It further states that for the purposes of this Act, a person shall be in lawful custody if (a) he is under restraint as a result of his having been lawfully arrested; or, (b) he is under restraint in respect of an offence and the police officer (i) believes on reasonable grounds that he has committed the offence and (ii) would be authorized under section 14 to arrest him for the offence.

If you were stopped by the police for a non serious offence arising out of the use of a motor vehicle then the CPA comes to your rescue where it states very explicitly that a person shall not be under restraint if he is in the company of a police officer by the road side whether or not he is in a vehicle, for a purpose connected with the investigation of an offence, not being a serious offence, arising out of the use of a motor vehicle.

In your case there seems to be some ambiguity as to whether you were being investigated for a non serious traffic offence. If it was not serious, we ask ourselves why the Police were trying to talk to their superiors prior to your release. There are a number of possibilities. Perhaps the police were not really speaking to their superiors and were merely trying to extract some ‘nauli’ from you for a non serious traffic offence.

If that is the case, you were not under arrest and the answer to the embassy question is ‘no’, atleast for this instance, unless of course you have been previously arrested. The other possibility is that you were being investigated for a more serious non traffi c offence. If that is the case, we need to take you to some other sections of the CPA before we answer you.

Section 11 of the CPA discusses how an arrest is made and states that in making an arrest the police officer or other person making the arrest shall actually touch or confine the body of the person being arrested, unless there be a submission to the custody by word or action and if the person, to be arrested forcibly resists the endeavor to arrest him, or attempts to evade the arrest, the police officer or other person may use all means necessary to effect the arrest.

The question is was there a physical ‘touch’ or were you ‘confined’ as per the CPA. We do not have enough detail on this and if in your opinion you were not touched or confined, you were not under arrest and again you can accordingly answer the embassy question. Assuming you were confined, was this proper?

We now wish to take you to section 53 of the CPA which states that where a person is under restraint, a police officer shall not ask him any questions, or ask him to do anything, for a purpose connected with the investigation of an offence, unless (a) the police officer has told him his name and rank; (b) the person has been informed by a police officer, in a language in which he is fluent, in writing and, if practicable orally, of the fact that he is under restraint and of the offence in respect of which he
is under restraint; and (c) the person has been cautioned by a police officer in the following manner, namely, by informing him, or causing him to be informed, in a language in which he is fluent, in writing in accordance with the prescribed form and, if practicable, orally (i) that he is not obliged to answer any question asked of him by a police officer, other than a question seeking particulars of his name and address; and (ii) that, subject to this Act, he may communicate with a relative or a friend.

If you were not informed that you were under arrest, and neither informed of the offence for which you were being held then it is very unlikely you were under arrest. All in all, we believe that for this particular incident, you were not under arrest and you can accordingly answer the ‘embassy question’. Contract by fax My wood supplier and I entered into a contract for the supply of wood at a particular price. We agreed on the terms and because of his location entered into the contract by fax. The supplier has turned around and intends to increase the price of the wood. What can I do?

GP, Morogoro

At the outset we must mention that we do not have enough details to answer you very precisely. However our law allows both a written and oral contract. In your case, apart from the faxed contract, if you can prove by action or other means that this is what was agreed upon, we believe you have a good case. Additional proof as to the faxed contract may be required in proving that this is what was intended. Your attorneys can guide you further.

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