Sample of legal opinion in Tanzania (+pdf download)

Here you will find a sample of legal opinion in Tanzania

But before we get started, let me make one thing clear.

When we talk about legal opinion, especially from the students’ perspective there are two concepts involved

1. The legal opinion that you are tasked to write in response to a scenario question
2. The real legal opinion that an advocate is writing to his client.

The good news is the format is almost the same.

And to ensure you are getting the most out of it, here I will share samples of legal opinion covering both concepts.

Let’s get started

The following is a sample of legal from an Advocate to client.

[FIRM LETTERHEAD]

Date………………

Maisha Mazuri,
Managing Director,
ABC Ltd
P.O BOX 000
Arusha

Dear Maisha Mazuri

RE: A REASONED LEGAL OPINION ON TERMINATIONS OF EMPLOYEES BASED ON EMPLOYET’S FINANCIAL CONSTRAINTS

You have informed us that your company, ABC Ltd is contemplating workforce termination for financial constraints reasons. Consequently, you have requested a legal opinion on the validity of the decision and the proper legal procedures for such actions under Tanzanian Law.

The following is our opinion based on your request;

1. DOCUMENTS EXAMINED
In rendering this opinion the following documents were perused and relied upon:
(a) The Employment and Labour Relations Act, Cap. 366 of R.E 2019
(c) Relevant Court Decisions

2. ISSUE
In this opinion, we seek to answer the question:

Whether it is lawful to terminate employees when the employer faces financial constraints

3. OPINION

The Employment and Labour Relations Act, Cap. 366 of R.E 2019 allows the employer to terminate the employee based on operational requirements.

According to that law operational requirements mean requirements based on the economic, technological, structural, or similar needs of the employer

It is our opinion that the financial constraints issue that your company is currently facing is falling within operational requirements angles.

Therefore it is lawful to terminate your employees based on that ground.

Procedures

The procedures to terminate an employee based on operational requirements are strongly laid under section 38 of The Employment and Labour Relations Act, Cap. 366 of R.E 2019.

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In nutshell, the following is what you are supposed to do;

  1. give notice of any intention to retrench as soon as it is contemplated
  2. disclose all relevant information on the intended retrenchment for the purpose of proper consultation;
  3. consult prior to retrenchment or redundancy on –
    • the reasons for the intended retrenchment;
    • any measures to avoid or minimize the intended retrenchment;
    • the method of selection of the employees to be retrenched
    • the timing of the retrenchment
    • severance pay in respect of the retrenchment,
  4. give the notice, make the disclosure, and consult trade unions and employees about your retrenchment plan.
  5. Once you fail to obtain agreement during notices and consultation processes, then you have to refer the matter to mediation.
  6. Where the mediation has failed, the dispute shall be referred for arbitration

It is important to note that, the procedures above are mandatory and there must be followed no matter what.

The same was well-cemented by the High Court in the case of Nas Dar Airco Co. LTD vs Emmanue Igonda & others, Labour Revision NO. 38 OF 2021, HC At Moshi, that

retrenchment has a deleterious impact not only on the lives of the retrenched employees but that of their respective facilities. It is, therefore, imperative that it should not proceed in disregard of the mandatory legal requirements.

CONCLUSION

This opinion is limited to matters of the Tanzanian Laws and Practices stated herein and may not be read as extending by implication to any matters not specifically referred to. Nothing in this opinion should be taken as expressing an opinion in respect of any representations of
warranties or other information, or any other document examined in connection with this opinion except as expressly confirmed herein.

This opinion is addressed to you solely for the benefit of ABC CO. alone and may not be relied upon, used by, or shown to any other person or for any other purpose.

We submit.
Respectfully,
……………………………………………
ABCD AND Y ADVOCATES

The following is a sample legal opinion that you can refer to when you are tasked to write a legal opinion in response to a scenario question

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Question

For the past 8 years, Maria has shared a residence with Juma, but they have not undergone a formal marriage ceremony. Despite not formalizing their union, the couple has welcomed two children, Peter (6) and Mary (3).

Maria reveals that prior to cohabiting, Juma, who practices Islam, had initially agreed to convert to Christianity for the purpose of a formal Christian marriage. However, as the years have passed, Juma has not fulfilled this commitment, leaving Maria feeling deceived. Their children, Peter and Mary, have been baptized and regularly participate in Christian services with their mother, while Juma remains steadfast in maintaining his original religious affiliation.

Maria is distressed by the situation, believing it to be an embarrassment to her devout Christian parents. They jointly own a house on land that Maria had purchased before their relationship began. Notably, approximately 90% of the construction costs for the house were covered by Maria, as Juma lacks formal employment.

In light of the unmet agreement and the strain on their relationship, Maria desires to end the union.

Write a concise legal opinion to Maria

NOTE; The answer provided below is for illustrative purposes only and does not represent an actual situation. The goal is to demonstrate how to construct a legal opinion when addressing scenario-based questions..

Answer

Facts

  • Maria and Juma have been living together for 8 years but have not undergone any formal marriage ceremony.
  • Before cohabiting, Juma, who is a Muslim, agreed to convert to Christianity for a formal Christian marriage ceremony with Maria.
  • Despite the initial agreement, Juma has not changed his religion as promised.
  • Maria and Juma have two children, Peter (6) and Mary (3).
  • The children have been baptized and regularly attend Christian services with Maria.
  • Maria purchased the house on land before the relationship began.
  • Approximately 90% of the construction costs for the house were incurred by Maria, as Juma has no formal employment.
  • Maria wants to end the relationship due to the unmet agreement regarding religious conversion.

Issue

  • Whether Maria can end the relationship?

Law Applicable

  • Law of Marriage Act [CAP 29 R.E 2009]
  • Precedents
    • John Kirakwe V Iddi Siko 1989 TLR 215 (HC)
    • Hoka Mbofu V Pastory Mwijage 1983 TLR 286 (HC) 
    • Hemed S Tamim V Renata Mashayo 1994 TLR 197 (CA)
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Arguments

In Tanzania mainland, conjugal relationships are regulated by the Law of Marriage Act [CAP 29 R.E 2009]. Section 160 (1) of the act stipulates that if it is proven that a man and woman have cohabited for two years or more, acquiring a reputation as husband and wife, there is a rebuttable presumption that they were legally married.

Referring to the case of John Kirakwe V Iddi Siko 1989 TLR 215 (HC), three essential elements for establishing a presumption of marriage are identified: (a) cohabitation for over two years; (b) acquiring the reputation of being husband and wife; and (c) the absence of a formal marriage ceremony.

In Maria’s situation, elements (a) and (c) are evident, having lived with Juma for eight years without a formal marriage ceremony. Element (b) depends on the perception of your relationship by neighbors. If they view your cohabitation as that of a husband and wife, the marriage is presumed; otherwise, the presumption is rebutted.

However, as per Hoka Mbofu V Pastory Mwijage 1983 TLR 286 (HC), if there is no allegation of a presumption of marriage, section 160 of the Law of Marriage Act, 1971 cannot be invoked based solely on concubinage association. To terminate the relationship, Maria must assert a presumption of marriage through a formal application (petition) to the court, providing evidence of the conduct and circumstances of their relationship.

Even if the court rebuts the presumption, as seen in Hemed S Tamim V Renata Mashayo 1994 TLR 197 (CA), if the parties have lived together as husband and wife, acquired property, and the presumption is rebutted, the court, under section 160(2) of the Act, can still make consequential orders such as the dissolution of marriage, separation, and division of matrimonial property acquired during their relationship.

Conlcusion

In conclusion, considering the above discussion, Maria may pursue ending the relationship Juma.

Please say something

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my concern is;

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