Q&A – 11 July 2022
Misnomer and misdirection of object in Will
It was a fracas when the Will of the deceased neighbor was read. Among others, the Will indicated that a house in which the deceased neighbor was staying before his death was bequeathed to his last born ‘Jonathan’ and his only wife Dina. Dina is a mother of five boys of the deceased father. The quarrel ensued following the first born resistance to accept the allocation of the house to ‘Jonathan’. His uncles supported him in the argument because among the five boys of the deceased and Dina, there was no son called Jonathan. The last born, whom the Will described, is actually called John and not Jonathan. The first born wants to take the matter to Court to seek nullification of legacy to the last born. My question, will he succeed?
Likelier than not, the first born will not succeed to challenge the Will. Christian inheritance and construction of Wills in Tanzania are largely governed by the Indian Succession Act, 1865 (the Act). Section 63 of the Act clarifies on dealing with misnomer and misdirection of objects, analogous to the issue you have brought before us.
The law states that where the words used in the Will to designate or describe a legatee, or a class of legatees, sufficiently show what is meant, an error in the name or description shall not prevent the legacy from taking effect. It further states that a mistake in the name of a legatee may be corrected by a description of him, and a mistake of description of a legatee may be corrected by the name.
In the case of your deceased neighbor, the name of the legatee is mistaken in the Will as ‘Jonathan’ instead of the correct name ‘John’. However, the description of the legatee is correct and unambiguous: ‘the last born whose mother is Dina’. Thus, as long as the description of the legatee is correct, the mistaken name of Jonathan cannot likely warrant nullification of the last born’s inheritance. Your lawyer can guide you more.
Suing for a dishonored cheque
I am a businessman, among other things, supplying food items to different private schools in our district. Months ago, I supplied food to one of those schools whereby the school manager drew a cheque worth to pay for the supplies. I banked the cheque, but after a day my banker called me to take back the cheque for a reason that the drawer had insufficient funds in his account. I took the cheque back to the school manager who apologised and promised to deposit sufficient funds for the bank to honour my cheque. It has been three months now and the school manager hasn’t fulfilled the promise. I was told by my fellow businessman that there is an easier way of suing for recovery of my money. Please guide me.
Your fellow businessman is right. The easier way of suing the school for recovery of your money is by way of what is legally called a ‘summary procedure’. A summary procedure is canvassed under Order XXXV of the Civil Procedure Code, Cap 33, R.E. 2019. In civil suits, the procedure allows the Court to entertain proceedings in a summary nature whereby the defendant doesn’t have an automatic right to defend himself. Fortunately, suits based upon bills of exchange, including cheques, or promissory notes can be instituted via a summary procedure.
You need to present a plaint in a usual form but endorsed ‘Order XXXV: Summary Procedure’ and the Court will then issue a summons informing the defendant that unless he obtains leave from the Court to defend the suit, a decision may be given against him. It is worthy to note that summary judgment procedure has a number of advantages for parties advancing claims to which the defendant has no legitimate defence. Based on your explanation, the school will have no legitimate defence after your proof that you supplied the food and the bank confirming that indeed the school account had insufficient funds in its account at the time when the cheque was issued until when you instituted the summary suit. Usually, the summary procedure will be cost saving on your part and relatively speedier. Your attorney can guide you on the detailed summary procedure.
Throwing an empty bottle out of moving train
I was travelling from Kigoma to Tabora by train. Along the journey, I was boozing from a disposable beer can. After seeping the contents from the bottle I threw the empty bottle outside the train through the window while the train was moving. The wagon attendant saw me when I threw the bottle and furiously came to where I was seated and threatened to take legal action against me. I was adamant because I didn’t see my fault as the bottle I threw didn’t harm any person given that at the time of throwing it the train was passing through a thick forest. He warned and admonished me not to repeat the act. Is what I did punishable under any law?
Your act of throwing the empty bottle from a train is punishable under the Railways Act, 2002 (the Act). Section 49(l) of the Act, prohibits throwing from a train any article or substance which is likely to be a source of danger to, or cause injury to any other person. Your defence that the bottle you threw from a train didn’t harm any person is not tenable because the law, according to the cited section of the Act, punishes even when there is a likelihood of the thrown object to be a danger to any other persons. That you were passing through a thick forest when you threw the bottle is not a good defence, as the likelihood of causing a danger still existed.
If you were charged in Court, the act of throwing the empty bottle from the train, upon conviction, carries a fine not exceeding TZS 2M or to imprisonment for a term not exceeding 6 months or to both such fine and imprisonment.