 |
| Usurpation of prosecution’s powers
by a magistrate |
| My brother was charged and later
convicted of the offence of breaking
into a shop and stealing. Having
found to be in possession of stolen
goods, he was initially a state witness.
During his testimony the magistrate
ordered my brother be added in the
charge sheet with the accused because
the magistrate strongly believed, that
my brother had played a role in the
offence. Is this fair? Does a magistrate
have such powers? |
| HT, Dar |
If all your facts are correct, your brother
was wrongly added to the charge sheet
and hence wrongly convicted. The
Criminal Procedure Act only empowers
Courts of law to amend a charge sheet
where it is defective in either substance
or form. The law does not give power
to the Court to usurp the prosecutor’s
powers and order that a person be
included in the charge sheet. In your
case the Court misdirected itself. You
have all the right to appeal- hopefully
you are within the statutory period to
appeal to the High Court of Tanzania.
|
| Claiming inheritance
from my father |
| My father is a very rich person- one
of the richest in the country. I am
well taken care of and have access
to pocket money, a car and all the
works. My father however does
not want to give me funds to start
a business that I could manage
on my own. He claims that upon
his demise I shall get 50% of his
wealth. I am turning 30 and would
like to pre-claim this inheritance
from my father and live my own
life. I am also scared that he might
change his mind in the Will as
it is rumoured he has a mistress
and children with her. I would
like to confront him about this
extramarital relationship. Please
advice. |
| BT, Dar |
We assume that you want us to advice
you on whether you can claim under the
Will and not whether you should confront
your father about having a mistress. Unfortunately if it is the latter, we are
|
|
not qualified to answer the question.
To begin with, you are of a mature age and not a child by any definition. We know of no law in any jurisdiction that allows the beneficiary of a Will to pre-claim their portion of the testator’s estate. A Will is an instrument that gets invoked upon the death of the testator. Fortunately (or unfortunately) your father is still alive and you cannot claim under the will. It makes no difference if your father is the richest man in Tanzania or the richest man in Africa-Amount of wealth doesn’t change the law.
Also be informed that a Will is a changeable instrument and is not cast in stone. It can be changed at any time by the testator. Upsetting your father in any way can make him change his mind about you- do keep that in mind when you confront him about the mistress. |
| Defence procedure
in summary suit |
| I bought a car and issued a post dated cheque of Tsh 20M. Upon giving the cheque, I was handed over the vehicle which I started using. The seller presented the cheque and it bounced as the bank had no funds to pay. The seller being aggrieved filed a summary suit against me, claiming amongst others payment of the sell price and damages. I am not legally trained and don’t know if this is an offence. Please give me the best advice |
| TH, Morogoro |
In answering this we assume that when you said the bank did not have money to pay, it was your personal account on which the cheque was drawn that had no funds available.
Summary proceedings are ordinarily available for cases that require prompt action and generally involve a small number of clear-cut issues for example non-payment of utility bill, default in mortgages and bounced cheques, as is the case here. The defence under summary suit is not automatic and the defendant has to apply to the respective Court within the time frame indicated in the summons, for leave to
|
|
|
|
appear and defend his case. The application shall be accompanied by affidavit which should indicate sufficient facts which may require the Plaintiff to prove before he is entitled to the summary judgment. In short the affidavit should disclose triable issues to the satisfaction of the Court.
In your question, you have not mentioned why the cheque bounced. Should you not have sufficient grounds to defend your position, it may be difficult to satisfy the Court if there are triable issues and the Court may reject your application. If your application to defend the suit is rejected, you may find judgment being entered against you.
Our ‘best piece of advice’ is not what you perhaps want to hear- pay the funds to your supplier immediately and pray that he waives the damages.
You do not need to be legally trained to know the consequences of issuing a cheque when your account does not have sufficient funds- this is also a criminal offence called kite flying and is imprisonable. |
| Boss makes ten times my salary |
| I came back from Europe two years ago and have been working as a secretary in a mining company in Mwanza. Few weeks ago I managed to get access to the payroll of the company and found that my boss, who is not as smart as he thinks, gets paid ten times my salary. Is that not discriminatory? How can one person be paid so much? How can I institute a suit against the company? |
| JL, Mwanza |
There is no law in Tanzania that limits the amount of executive pay in the private sector. You claim to have lived in Europe and should know about this. Whether your boss is as smart as he thinks, or looks, does not matter. As long as you are being paid above the minimum salary, the mining company is not in breach of any law.
We must mention one more thing- your action of illegally viewing the payroll could lead to your dismissal. Please take note of that.
|
Send in your questions by
email to
[email protected]
or
by post to:
Q&A with FB Attorneys
C/O The
Daily News,
P.O. Box 9033,
Dar es Salaam, Tanzania.
You can also read
the column online. Logon to www.fbattorneys.com
and click on news. |
|
|
This column is intended to give you a general over view of
the Law. It is not a substitute
to the role of your legal advisor. If you
have legal issues, you are strongly recommended
to contact your Attorney. |
|