Q&A – 10 December 2012
Serious injury in pool
A graduation party was organized by some students at a private residence. Everyone enjoyed the pool without knowing that one of the pool water suckers that circulates water in the pool had its cover missing causing serious injury to a student. Can I sue the pool owner although we got the pool free?
GH, Mwanza
From your question it seems that you are not the student who got the injury and hence it is quite unlikely that you will be successful in suing the pool owner. However, the injured friend has a good case against the pool owner and it does not matter that the pool was given to you for free.
Whilst the pool owner was not under any contractual obligation to give you the pool, he had a tortious responsibility to ensure that it is safe for usage. If a pool water sucker cap is missing, it can lead to loss of life as a swimmer can actually get trapped in the pool.
The questions you have to ask yourself is whether the pool owner had a duty of care even though he gave you the pool for free. We believe so. The second question is whether the pool owner was in breach of such duty. The answer is again yes. And lastly because of this breach, there was an injury. Based on the evidence you adduce, the chances of success is quite high.
Change from proprietorship to limited company
I had been operating an international agency for a European brand for the past 25 years until recently when I was asked to convert this sole proprietorship into a limited liability company. This was so as to ensure the continuity of the business. I complied and the company now has a board of directors and shareholders. It has been about a few years since the conversion and the company has been sued. Also sued are the shareholders. What is the point of having a limited liability company if the shareholders can also be sued? What should I do?
JE, Dar
You cannot stop anyone from suing anyone. It is for the Court to decide whether there is merit in any case or not.
However, under very old English principles in the case of Solomon v Solomon, that is good law till date, a limited liability company is a separate legal personality from its shareholders. This means that a company can be sued and sue, and it is not the shareholders who would be considered having sued or having been sued. The shareholders are not liable for the debts of the company even though they own the company. That is precisely why one forms a limited liability company. The effect of the Court’s unanimous ruling in Solomon V Solomon was to uphold firmly the doctrine of corporate personality, as set out in the Companies Act, so that creditors of an insolvent company could not sue the company’s shareholders to pay up outstanding debts.
Although you have not told us what the cause of action is against your company in the law suit, the principles above very likely hold true for you. It is also quite likely that the case against you as a shareholder is unlikely to succeed. Your lawyer can guide you further.
Presumption of sanity
What does the law say about insanity and its effect if someone insane is engaged in a criminal activity? What about not knowing the law?
TE, Dar
The Penal Code is clear in that a person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission. But a person may be criminally responsible for an act or omission although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.
The law also presumes every person to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved. Hence you are not automatically deemed insane but must prove it.
As for not knowing the law, it is clear in the Penal Code that ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence.
Exhibit disposal order in Court
A few years ago, my radio was stolen. I reported the matter to police and after investigation, the said radio was recovered from the accused person’s house and he was charged in Court for stealing. The police kept my radio as an exhibit. After a long attendance in Court and without any hearing, the prosecutor asked the Court to withdraw the case against the accused person and he was set free. I have been advised to apply to the same Court for an order for the police to release my radio. What documents do I need to have? And what are the possibilities of succeeding?
FP, Morogoro
The law allows the prosecutor to withdraw the charge but that is not always the end of the matter. The police are at liberty to re-arrest the accused person and charge him afresh. We are unsure if the police are still interested to further prosecute the accused person. Assuming, the police want to re-file the case, they are justified to withhold the exhibit/radio as part of their evidence.
On the other hand, if the police have abandoned the charges against the accused person, then you are entitled to take your radio as long as it really is yours.
In our opinion, since there is no subsisting charge in the Court against the accused person, the Court is focus officiall in so far as the charge is concerned. The fastest way to get back to the radio is to follow it up with the police. If that fails, your attorney can guide you on the formalities to make a miscellaneous application in Court.