Q&A – 9 May 2011

Will made in hospital

My father was critically ill and admitted at the intensive care unit at a hospital in Dar. He is a well known businessman and high net worth individual. When in the ICU, he kept on losing consciousness and an elder in the community guided us that we must draft a will and get my dad to sign it. All the beneficiaries agreed and we drafted a Will and got my father to stamp it with his thumb. The doctor and the elder member of our community witnessed the Will. Three days after the Will my father passed away after which we sat down as a family to discuss on how to proceed. My uncle who had initially agreed to the making of the Will objected to the Will. We have contacted various lawyers who say that we should apply for probate and it is a manageable matter. What should we do?
PW, Mwanza

The contents of the Will are decided by the testator, the person making the Will, and not anyone else. You say you drafted the Will. It seems that you and your other family members decided amongst yourselves who the beneficiaries should be. Your dad was in no state to be able to understand the contents of the Will and you were inserting names for him. This is not how a Will operates. From your questions we conclude that your father did not make the Will. You made it for him. You got him to sign it using his thumb as he was in no position to sign it let alone understand the contents of the Will. It is plain and simple- the Will you created is challengeable and if you apply for a probate, very likely your uncle will challenge it and correctly so.

Order of re trial

I was convicted and sentenced to a term of five years imprisonment by the Arusha resident magistrate’s Court. On appeal, the High Court of Tanzania allowed my appeal on the ground that the convicting Court was not properly constituted and ordered re-trial of the case. However since then, I have not been arrested by the police or been informed concerning the retrial of the matter. Was it fair for the appellate judge to allow my appeal and order re trial despite having stayed in jail for 2 years? Can I appeal further? For how long should I wait for re trial?
LP, Arusha

You have not told us which offence you were charged with, but as a matter of principle Courts are supposed to consider the time the convict has spent in jail before they order retrial of the case, off course in consideration of the gravity and surrounding circumstances of the offence in order to meet ends of justice to both sides. However, going by the decision of the High Court we wish to inform you that legally your case has never been tried. It is still pending in the trial Court. You have not told us what time has elapsed since delivery of the judgement of the High Court but it is possible that re trial has not commenced because the Director of Public Prosecution has lost interest in the matter or the file has not yet been remitted to the lower Court. We have noted that quite frequently files remittance to the lower Courts by the High Court is very slow.

On the question of appealing against the Judge’s order for retrial, we recommend that you wait for outcome of the trial at the lower Court. In case you are found guilty the time you spent in jail will be considered as a mitigating factor for a lenient sentence.

Company protecting personal debt

I am a businessman in Dar. Few years ago a close friend and customer approached me for a loan. I accepted his request and lent a considerable sum on condition that I would be repaid in six months. To secure the loan he deposited with me a tile deed in respect of a house situated in a prime area in Dar. Todate I have not been paid and he has converted his business to a limited liability company and somehow managed to transfer the title in the company’s name. What should I do?
CR, Dar

We are quite surprised how he managed to get a new title and transfer the property. Very likely he must have informed the registrar of titles that his title was misplaced or stolen and that he wanted another one issued- this process is relatively simple and widely abused. With the issuance of a new title he would then have proceeded to transfer it to his new company. It seems that when he deposited the title with you, you did not file a notice of deposit which would have alerted the Registrar not to issue a title as it was not lost or stolen, but deposited with you. Next time, as a rule of thumb, as soon as a title is deposited with you, you must file a notice of deposit to avert the kind of situation you are in today.

Coming to this new legal entity that your friend has formed to defraud you and avoid paying the loan. Although in law a company is a legal person distinct from its members and cannot be sued for the wrongs committed by its members, this principle will not apply in a situation like yours where a company is used as a device to take undue advantage. From the given facts, it is quite obvious the incorporation of the company and all subsequent transactions were used by your friend as a means to unsecure the loan. We advise you to institute a recovery suit against your friend and his company in which you will be required to prove amongst others that the transfer of the property to the company was void.