Q&A – 1 February 2016

Disaster at wedding

My father was invited to a wedding in Moshi where he fell flat down due to the carpet not having properly been glued to the floor. He is very old and suffered a dislocated hip which is a very serious condition. We spoke to the wedding organisers who said that this hip dislocation would not have happened to younger people and they will not contribute for his medical bills. My lawyer says we do not have a contract with the decorator and hence cannot sue them for recovery. What should I do?
JK, Dar

You need not have a contract with the decorator or the wedding organisers to sue. Under law of tort principles you can sue anyone down the line. There is some form of negligence that is evident- it is a matter of proving it and you will be able to claim damages.

Assuming your father was invited and not a trespasser, the wedding organisers, decorator, perhaps even the owner of the premises all owed your father a duty of care. If the carpet is not properly glued to the floor, and your father tripped, the question you need to ask yourself is whether this duty was breached. It does not matter that your father is old and others were younger- so long as he was invited, this duty of care is owed to everyone present notwithstanding age. Infact the law is clear that you take a person the way she or he is.

If you can prove that there was breach of such a duty, you will be entitled to damages which can include your medical bills. On the flip side, it is always advisable for event organisers to take specific insurance cover for the events to enable persons like yourselves to recover from the insurers.

All in all, before you initiate Court proceedings, and considering that these might be your friends, you may want to engage with them to recover some contribution for the treatment.

Legality of 7 day notices by TRA

Does TRA have powers to come and search taxpayers premises? Can this be a fishing expedition for them? If the answer is yes, is this provision not unconstitutional and can it be amended? Can TRA give me only 7 days to pay up after they issue assessments or demand notices? What are my rights? TRA has written to me demanding taxes in Kiswahili which I do not understand- do I still need to comply?
YU, Dar

Under the Tax Administration Act and other tax laws, including the East Africa Community Customs Management Act, the Tanzania Revenue Authority has wide powers to search premises of taxpayers. This is similar to other jurisdictions where tax revenue collection must be protected. We do not see anything unconstitutional about this provision. Of course, the search needs to be for tax related matters and not a general fishing expedition, however the taxpayer cannot stop a tax official from doing his/her job. This provision can only be amended by parliament and we see no reason why parliament would wish to amend this especially in Tanzania where the tax base is very narrow and tax compliance very weak. We sometimes find TRA being blamed for powers that they actually do possess, with taxpayers calling it harassment and TRA calling it tax evasion!

As for the 7 days notices, we have indeed seen such deadlines being given and opine that the taxpayer has 30 days to object to any decision by the commissioner, or if an objection has been determined by the TRA to go to the Tax Revenue Appeals Board (Board) as an appeal. Hence the 7 days are, in our opinion, not justified as they fall within the objections or appeals period that is clearly provided by our tax laws. If you are issued with such a deadline, it is prudent that you inform TRA about your rights existing for 30 days and TRA cannot enforce collection measures when the time frame for you to object or appeal have not expired. Notwithstanding the above, if all objection and appeals periods have lapsed, and you have neither objected nor appealed, then TRA may proceed with recovery measures as there are no proceedings pending before them or the Board.

Kiswahili is our national language and the Tax Administration Act provides for Kiswahili as one of the languages of communication. Infact in some jurisdictions the tax authority only writes to you in the national language. Fortunately or unfortunately, in Tanzania TRA writes mostly in English.

You seem to know the contents of the Kiswahili TRA letter although you claim not to understand Kiswahili, perhaps because there are taxes to be paid. We see absolutely no grounds why you should use the language of the letter to avoid paying taxes. This would constitute bad faith on your part and you could face serious consequences including further penalties, fines, and/or prosecution.

Arbitration too expensive

I entered into a lease which is now in dispute and I have rushed to Court to sue my landlord which proceedings are still pending in Court. To my surprise the lease has an arbitration clause but I seek to go to Court as it is cheaper. I agreed to arbitration thinking it would be cheaper and faster, but the quotation I have received for arbitration is three times higher than going to Court. How can you help me?
HH, Dar

There is very little we can do to “help”. You agreed to arbitration and unless the other party agrees that they are ready to litigate in Court, your Court application will unlikely survive. Reasons like you thought arbitration was cheaper than going to Court will not hold in a Court of law, which will direct you to arbitration. Arbitration is an alternate dispute resolution mechanism and binding on the parties, and Tanzanian Courts strictly enforce such clauses.