Q&A – 2 April 2018
Suing myself
I am really upset at the amount of alcohol I drink and what I do thereafter. I want to take action against my drunken side by suing myself when I am drunk. Can I sue myself to be protected from my drunken behavior that I cannot seem to come out of?
YY, Dar
Suing yourself is a very interesting thought. We are not sure how you would do that and what the cause of action would be, and how your drunken and normal side will each appoint a lawyer, and ‘both’ of you will not be conflicted. It would also be interesting to see how you pay damages in case you lose the case, as one pocket will merely pay the other pocket. Seems like the happiest individuals will be your lawyers!
It is an interesting thought but not tenable under Tanzanian law. What we think you want to achieve is to stop drinking or getting drunk. For that a rehab centre will deliver better results than the Court system. We wish you all the best.
Third party mortgages on underdeveloped land
I am informed the Land Act has been amended and has restrictions on how a plot of land can be used to borrow money? What are the main highlights and how are we affected? Can a third-party mortgage be created over an underdeveloped land?
VB, Dodoma
The amendments impose a restriction that all moneys obtained from a mortgage from a bank or financial institution, whether local or foreign, must be invested in Tanzania. This restriction will severely dilute guarantees given by Tanzanian individuals to foreign banks. As was provided in the Bill, the amendments retains the position that if a mortgaged land is ‘undeveloped’ or ‘underdeveloped’ land, money obtained therefrom can only be used to develop the particular land (cannot be used elsewhere). This implies that third party mortgages on undeveloped or underdeveloped land cannot now be used by banks.
The amendments make it clear that non-compliance with these new conditions samounts to a breach of the terms of the Right of Occupancy and the Right of Occupancy in question can be revoked, likely, notwithstanding the existence of a mortgage. However, where the mortgaged land is a developed land, money obtained from it can be used in any other investments which however must be within Tanzania. The law also provides that these restrictions do not apply to lands held under the Certificate of Customary Right of Occupancy. The law imposes a further obligation on the mortgagor to submit to the Commissioner for Lands, within 6 months of creation of the mortgage, information as to the manner in which money obtained from the mortgage is invested to develop the mortgaged land.
The law also imposes an obligation on the mortgagee, local or foreign, to submit to the Commissioner a declaration that money obtained from the mortgage is invested in Tanzania. The procedures for administration and enforcement of these restrictions, will be prescribed in the Regulations (not yet promulgated). Underdeveloped land is defined as land which is not developed in accordance with the conditions of the relevant Rights of Occupancy; Undeveloped land means a land without improvement in or on, under or over such land or without any change of substantial nature in the use of such land.
Loan deduction in terminal benefits
I resigned from my employment few weeks ago. During my employment I had taken a loan on condition that I will ensure repayment in three years but I resigned before the three years. My employer has retained some of my terminal benefits for loan repayment. He insists and showed me a clause in the loan agreement which says that “the loan shall fall due upon termination of the contract of employment and the employer is entitled to deduct terminal benefits for realization of the loan.” Is this allowed under our laws? I feel that this is improper as I can still pay the loan for the remaining duration.
FI, DSM
Perhaps for clarity purposes, you should understand from the outset that under Section 28 of the Employment and Labour Relations Act, No 6 of 2004 (“ELRA”) an employer is entitled to deduct employees remunerations. Although there are number of conditions to be fulfilled for such purposes, in your case the requirement will be satisfied if there is a consent in writing. We are made to understand that such consent is in place in your case. The fact that you signed a loan agreement, there is an express term that the loan shall fall due upon termination of the contract of employment, and that the employer is entitled to deduct terminal benefits for realization of the loan, confirms our conclusion.
Many employers dish out loans without such conditions which unfortunately becomes a sticky point when an employee resigns or is terminated before the loan is repaid. Infact, we act for many employers and always recommend that this clause be expressly provided for in the loan agreement.
Witness cannot remember facts
I have received a summons to testify in a civil case. My testimony is going to be based on a number of agreements, and although I am acquainted with them, I cannot recall each and very term. I have started cramming the agreements in preparation but that is taking me long and with my age, I am not able to remember everything. This is causing me real stress as I am a key witness. What should I do? Is there an easy way of cramming the agreements?
YR, Arusha
Law always presupposes existence of society and its people. The law when enacted ensured to accommodate realities and in this case the law takes note that witnesses are mortal and may forget facts. The Evidence Act is relevant here since it governs how testimony is to be made and what qualifies as evidence in Courts of law.
In refreshing memories and production of evidence, the law allows a witness under examination, to refresh her/him memory by referring to any writing made by herself/himself at the time of transaction. The law further allows refreshment of memory even by using photocopies under the permission of the Court.