Q&A – 11 July 2011

Robbed in Bank

I was in a bank waiting to deposit a huge sum of cash when armed guards stormed in and took money from the tellers and from us (customers) in the banking hall. Immediately after the incident we wrote a police statement and the bank manager said we should give some time to the police to investigate. As usual the police investigations are never ended. They start off with a force and within few days they lost interest on the case. Till today there is neither report nor feedback given by the police. After constantly following up with the bank, now the bank is denying that it is not take responsible for the loss and I am the victim to suffer. What should I do?
PO, Arusha

You are a customer of the bank and hence there is a banker-customer relationship that exists. Normally when you are in the banking hall, the money has not yet been deposited since the bank has not yet taken custody of the funds and hence the funds are still under your control. At this point, you may still decide not to deposit the money or deposit only part of the funds you are carrying. It is hard for the bank to tell how much money you were going to deposit and to verify that you indeed were carrying the amount you claim you lost.

The situation you were in during the holdup sounds like a typical Hollywood movie scene, yet with all the action, and unfortunately so, it is very unlikely that the bank will be held responsible as it did not have custody of the funds.

The next best bet is to consider suing the bank for negligence. The bank should have adequate security to protect the interests of its customers. One of the main reasons you deposit funds in a bank is because of the security it provides. In this negligence claim, as a customer you were and remain entitled to security especially when you are within the bank premises. That duty is owed to you. You will need to prove that the bank was in breach of that duty. This is challenging and you will need to examine what security personal the bank had employed at the time of the incident.

Demand to produce records

We are a company dealing in the construction business in Dar es Salaam. One of our clients has sued us for a breach that we believe has been crooked up. While the suit is pending we have been served by an order of the Court requesting us to provide the plaintiff (suing party) with information pertaining to our company records. We find the order to be unfair. Should we disregard the order? What would be the consequences be if we do not comply?
MK, Dar

The order you have received is not strange. Our Civil Procedure Code permits one party in a suit to inquire of the adverse party and of all witnesses about anything relating to the action. This includes asking the adverse party the names of witnesses, what they know about the case, examining, inspecting and photographing books, records, buildings and machines, and making examination of the physical or mental condition of a party when it has a bearing on the action. The parties making an application for discovery of documents must in his/her affidavit name and specify in chronological form the particulars of documents of which he desires discovery, so that they can be identified.

A prior reasoning that certain classes of documents must be in the opponent’s possession or power would not be sufficient. You are advised to comply with the order unless there are solid grounds for you to claim that these documents are not discoverable and protected by privilege. Although failure to comply may not affect your participation in the case but if it is established that your disregard of the order is willful, the court may preclude you from setting up your defence. Your defence team can decide what can
be released and what cannot be released, and why.

Legal aid in civil cases

I have been unfairly sued in Court by a party that has tonnes of money. I cannot afford a lawyer. Can I get legal aid?
JJ, Dar

Unfortunately legal aid can be provided in criminal matters- presently there is no automatic system whereby you can qualify for such assistance as your case is a civil case. Depending on the subject matter at hand, you might want to contact the Legal and Human Rights Centre. If the case is not very complicated, you can look for an advocate who can assist you in drafting and you can then represent yourself in Court. What you must not fail to attend Court sessions. You are automatically given 21 days to file your defence from the date you receive the plaint after which the case commences.

Contribution in car insurance

I met with an accident and have lodged my claim with the insurer. They want me to contribute a certain percentage of the amount claimed. Is that standard and should I pay? Can I sue the insurance company for taking advantage of me?
PO, Dar

A policy excess or deductible is an amount that you, as an insured, have to pay as your portion of the claimed amount. This is quite standard everywhere in the world. In some countries you can pay additional premium and reduce the policy excess or remove it totally.

In Tanzania very few insurance companies offer this facility and hence it is likely that you will have to contribute. Unless the policy excess is above what the insurance policy shows, we do not think you have a case against the insurance company. We suggest you read your insurance policy and see what the excess is- it could be a percentage of the claimed amount or a fixed amount.