Q&A – 11 March 2013
Trespass and right to compensation
My boss left a piece of land for me to guard and moved to another country. He never came back for almost nine years and neither did he inquire on the land. I figured maybe he does not want the land so I constructed a house and made some developments on the property which cost me a lot of money. He came back last year and asked me to leave the property. I asked him to pay me compensation for the house as I believe he will rent out the house. He refused on the grounds that he did not ask me to develop the property and if I could, I should carry the house with me! It is true that he did not ask me to develop the property however he had abandoned the land and I think I am entitled to compensation. Please advice on whether there are chances that I may win this in Court.
KJ, Mwanza
Under the law, you were employed by the owner of the property to guard the property so nobody would trespass on the land. You were a legal occupier of the land authorized by the owner, however you became a trespasser the moment you decided to treat the property as your own.
It is true that under the law, a person can be dispossessed of his property if, another person comes to occupy the land and this other person is not aware of the existence of the owner and the owner does not interfere with the person’s occupation over the land for a period of twelve years consecutively.
However, in your case, you were aware that the owner of the property existed and that the owner left you in charge of the property which means he cared for the property enough to look for someone to guard it against trespassers. Just because he did not ask about the property for over nine years, which is hard to believe but may be true, does not mean that under the law he has lost his right to the property. Hence when you constructed the house, you did so at your own cost and risk and it is unlikely that the owner can be liable for compensation.
You might want to consider some other mediatory process to convince your boss. Your lawyers can guide you further.
Mortgage of social security benefits contributions
I want to take a loan to build a house but don’t have any security apart from my social security benefits. I requested the Bank to take the whole of the security benefits as a security, however the bank says it can only take 50% and that I will have to provide another additional security. I wish to know whether there is a legal basis for this refusal by the Bank.
HE, Singida
The Social Security (Regulatory Authority) Act of 2008 provides that the mortgage of the social security benefits should not exceed 50% of the benefits the person is entitled to at the time of collection of the said benefits. Hence the Bank is right not to accept more than 50% of the benefits because the law aims to ensure that all persons retired have some means of income to sustain them when they can no longer work and if the law did not put such limit, most people would have taken loans and mortgaged all their benefits.
The law protects you and it is in your interest that you do not expose 100% of your social security benefits. You can contact your lawyer for further guidance.
Foreign lawyer in Tanzania
I lost a case at the High Court in Dar es Salaam and decided to appeal. Can my English lawyer who practices in London be allowed to represent me at the Court of Appeal although we have already lodged the appeal? What is the notice period that the Court of Appeal gives before hearing is scheduled?
IO, Dar
There are many competent attorneys in Tanzania; however if you still believe that the English lawyer can add value to the case, then Rule 33(4) of the Court of Appeal rules (Rules) states that any other person entitled to appear as counsel or advocate before any court of unlimited jurisdiction in any country in the Commonwealth shall, if licensed in that behalf by the Chief Justice and subject to payment of the prescribed fee, have the right of audience before the Court in respect of any one appeal or application, including any cross-appeal heard with it, or any two or more appeals or applications consolidated for hearing.
Hence the English lawyer can appear at the Court of Appeal subject to getting a licence from the Chief Justice. Please note that the Chief Justice may deny this and a mere application to appear does not mean it will be granted.
On the notice period prior to hearing, the Rules provide that the Registrar shall give all parties to an appeal not less than fourteen days’ notice of the date fixed for the hearing of the appeal; but it shall not be necessary to give that notice to any party with whose consent the date for the hearing was fixed.
Also note that the Rules provide for a procedure when you change your advocate and states where any party to an application or appeal changes his advocate or, having been represented by an advocate, decides to act in person or, having acted in person engages an advocate, he shall, as soon as practicable, lodge with the Registrar notice of the change and shall serve a copy of the notice on the other party appearing in person or separately represented, as the case may be.