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Q&A – 26 June 2017

Father in law wants second marriage

I have been peacefully married for the last 10 years only for my father in law to now inform me that our marriage has not been conducted properly under the law since the religious leader who oversaw our wedding and blessed us was not properly appointed. Hence I am informed that because he was not properly appointed he could not have conducted our ceremony meaning that our wedding is invalid. I am in a state of shock as I am not sure what another wedding ceremony would do to my finances, and how I will explain this to my 3 children. What do I do? Why is my father in law raising this now?
FE, Moshi

Whilst we find it as interesting as you do that your father in law is raising this at this juncture, what we are unable to answer is why your father in law, to whom you are not married, is bringing this up now. You or your wife can perhaps ask him, especially after you read the below.

Luckily for you the Law of Marriage Act provides that a marriage which in all other respects complies with the express requirements of this Act shall be valid for all purposes, notwithstanding– (a) any non-compliance with any custom relating to dowry or the giving or exchanging of gifts before or after marriage; (b) failure to give notice of intention to marry as required by this Act; (c) notice of objection to the intended marriage having been given and not discharged; (d) the fact that any person officiating thereat was not lawfully entitled to do so, unless that fact was known to both parties at the time of the ceremony; (e) any procedural irregularity; or (f) failure to register the marriage.

Hence you can inform your father in law that you need not get ‘married again’ since the law covers a scenario such as yours. Therefore, unless there is something you are hiding from us, you can hence continue living in peace as a married man.

Granting of leave to appeal

I fail to understand why after losing at the High Court I have to apply for leave to appeal from the same Court that I am aggrieved with. How often is leave granted and what do you suggest I do?
YT, Dodoma

Leave to appeal is a statutory procedural requirement in some types of cases without which you cannot appeal to the Court of Appeal. It is granted quite frequently as long as your application is properly drafted and timely filed.

According to case law, leave is granted where the proposed appeal stands reasonable chances of success or where, but not necessarily, the proceedings as a whole reveal such disturbing features as to require the guidance of the Court of Appeal. The Purpose of the provision is therefore to spare the Court the spectre of unmeriting matters and to enable it to give adequate attention to cases of true public importance.

Needless to say, leave to appeal is not automatic. It is within the discretion of the Court to grant or to refuse leave. The discretion must, however be judiciously exercised on the materials before the Court. As a matter of general principle, leave to appeal will be granted where the grounds of appeal raise issues of general importance or a novel point of law where the grounds show a prima facie or arguable appeal. However, where the grounds of appeal are frivolous, vexatious or useless or hypothetical, leave can be denied.

If your case is one that requires leave, you have no option but to apply for it.

Registrar refuses to register name

BRELA registrar has refused to register a name of a company that I have proposed. What is the test for such refusal? What options do I have to challenge this?
OP, Dar

The Companies Act states that no name shall be reserved and no company shall be registered by a name which, in the opinion of the Registrar, is the same as or too like a name appearing in the index of company names or is otherwise undesirable.

If there already exists a similar name then the Registrar has the powers to stop you from registering your proposed name. Further, if the name you have proposed is undesirable in the opinion of the Registrar, then she/he has the power to decline such registration. Both these tests are tests based on the Registrar’s opinion. Should you be aggrieved you can proceed against the Registrar of Companies at the High Court and challenge such a decision.

Unconscionable contract

A relative of mine entered into a contract that was signed by both parties. After the signing we realized that the terms do not make sense for us as we have to supply wooden logs to a local factory whereas we can sell them in Dar for double the price. What should we do?
PO, Iringa

Normally when a contract is signed it is hard to simply get out of it. In law there is a doctrine of unconscionability but it is almost always a losing argument. The doctrine was partially developed by Courts when the Court is sympathetic to the pleading party in that the contract is so one sided, so unconscionable, that it would be inequitable to enforce it. Other factors including the person’s education and bargaining power are also considered. In your case we doubt if this will apply and advice you to contact your attorney.

You must also understand that whilst contracts are meant to be kept, you can get out of a contact by paying damages- either expectation damage, reliance damages or restitution. If the cost of paying damages is less than the incremental income you will make by selling the logs in Dar es Salaam, it is an option that will still turn out to be profitable and you may consider it, provided the party that is breached does not apply for specific performance in Court.

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