Q&A – 23 January 2017

Shampoo leads to hairy body

My hairdresser recommended me use a certain shampoo to assist in hair growth as he claimed I was bolding. I used the shampoo for few months in addition to using it as a body wash, which is quite normal. Apart from my head that is now with more hair, my whole body is also full of hair. I am embarrassed to wear shorts because of the additional growth around my body. Can I sue my hairdresser for misguiding me? My wife is upset and has lost her appeal towards me and wants to divorce me. Can she?
YE, Moshi

Unfortunately we do not have all the facts but from what you have stated us, it seems the shampoo has worked for your head. It also seems that you have used this specialized shampoo to wash your body resulting in the additional and abnormal hair growth. Whether you can sue the hairdresser will depend on all the facts of the matter but it seems to be clear to us that the shampoo is likely medicated and not meant to be used as a body wash that has caused this mishap.

Having said that and much as we sympathize with you, we believe you might not have a strong enough cause of action to sue. Our Law of Marriage Act has specific grounds that allow divorce, and hair having overgrown on your body because of a shampoo leading to reduced appeal by your wife is not a reason that our law recognizes.

You should consider waxing the hair and seek the help of a marriage counsellor. Waxing is painful but the results can be quite incredible. We wish you all the best.

Company having no capacity to trade

A company we dealt with apparently has no authority under its memorandum to engage in trading. We supplied the company with certain goods for trading purposes and the directors are now refusing to pay stating that the company was not allowed to trade. Not only has the company bought from us, but they have sold the goods and earned funds. What can we do?
KI, Dar

Merely because the memorandum does not state trading as one of its objects doesn’t mean that you cannot proceed against the company to recover your funds. Section 35 of the Companies Act states that (l) The validity of an act done by a company shall not be called into question on the ground of lack of capacity by reason of anything in the company’s memorandum. (2) A member of a company may bring proceedings to restrain the doing of an act which but for subsection (1) would be beyond the company’s capacity; but no such proceedings shall lie in respect of an act to be done in fulfilment of a legal obligation arising from a previous act of the company. Hence notwithstanding what the memorandum states, you have a cause of action against the company and can sue for recovery.

Insurance policy one sided

My household fire insurance policy states that I cannot make a claim 14 days after a fire or burglary. I was overseas and just came back into the country to find my house totally empty. Everything was stolen. My broker says that the 14 days have passed and I cannot now claim. What should I do?
UI, Dar

Your broker should be trying to protect your interests. At the moment he seems to be acting like an agent of the insurer. We have not read this weird houseowners policy but you can certainly challenge it. You might want to read the wording of the policy whether it is 14 days from the date you found out or the date of the burglary. This unfair term can be reported to the Commissioner of Insurance who has the powers under the Insurance Act to delete or amend, obscure or ambiguous terms in a policy. Unfortunately we do not have your policy to guide you any further but we believe you can pursue this with your broker and insurer.

Arbitrator not being appointed

We have a clause in a contract we entered into whereby each party will appoint an arbitrator, and the two arbitrators are required to appoint an umpire. Despite the other party having been informed of the arbitration they are not acting to appoint an arbitrator. What should we do?
YE, Mwanza

The Arbitration Act provides for such a scenario and states that where a submission provides that the reference shall be to three arbitrators, one to be appointed by each party and the third to be appointed by the parties, unless the submission expresses a contrary intention – (a) if one party fails to appoint an arbitrator for seven clear days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference and the award of the arbitrator so appointed shall be binding on both parties as if he had been appointed by consent. (b) if after each party has appointed an arbitrator the two arbitrators appointed fail to appoint a third arbitrator within seven clear days after the service by either party of a notice upon them to make the appointment, the court may, on an application by the party who gave the notice, exercise in the place of the two arbitrators the power of appointing the third arbitrator.

You can see that the law allows you to proceed with arbitration with the one duly appointed arbitrator. If the other party is not appointing an arbitrator than they might not even come defend their case.

It might be worth putting the party on notice for the last time to avoid having your arbitrator proceed as the sole arbitrator, or to avoid the matter going exparte, which can pose a problem at a later stage.