Q&A – 11 June 2018
Unfair term in contract
I have been constructing a house and appointed a friend of mine as the contractor. He did a below average job and we have now realized that the foundation and roofing are not done properly. We have hardly moved into the house two months ago and we are told by another contractor that we need to do some more work on the house. I asked our contractor and he pointed me to a clause in the contract that states he is not liable for any such mishaps i.e he cannot be blamed. I did read the contract and admittedly I signed it without properly reading it. What can I do? My lawyer said I should have contacted him before signing the contract and not after, and that there is nothing much that can now be done since the contract is clear that the contractor doesn’t bear any liability? Please help.
NG, Dar
It is true that most signatories of contracts do not properly read contracts before signing them. It is with that in mind that in other countries there is a specific law on unfair contract terms whereby such clauses are not allowed, or if inserted, cannot be enforced. Unfortunately we don’t have such a specific act here. The general principle of law is that parties are bound by what they have agreed to. This is a principle that is also widely applied here. Notwithstanding the above, it is quite clear from common sense and common law principles that having appointed a contractor, who we presume is registered with the Contractors Registration Board (CRB), the contractor cannot run away from his obligation to properly construct your house. In contract law it does not matter if he is your friend or not.
There is also a number of interesting foreign case laws that interpret such exclusion clauses of liability in your favour by holding that there is a common law implied term into the contract whereby a contractor or specialist is supposed to perform to a minimum certain expectation, which in your case the contractor hasn’t.
Your lawyer should not give up so easily and you should perhaps get a second opinion. We believe you can make a good case to hold your contractor liable. Next time do not sign contracts without properly reading them. It is these one or two liners in contracts that cost you the billions.
Want to become a citizen
I married a foreigner and moved to his country where I became a citizen there. After ten years of marriage, we divorced and I have now come back to Tanzania, and want to become a citizen of Tanzania. Am I allowed to revert to my original citizenship? My consultants say that because I dumped my previous citizenship, I now cannot become a Tanzanian citizen. What should I do?
WP, Dar
Section 13 of the Citizenship Act provides for exactly such a scenario and states the following: 13.-(1) If any citizen of the United Republic of full age and capacity makes a declaration in the prescribed manner renouncing his citizenship of the United Republic, the Minister may cause the declaration to be registered and upon that registration the person in question shall cease to be a citizen of the United Republic. (2) The Minister may refuse to register any declaration referred to in subsection (1) if it is made during any war in which the United Republic may be engaged or if, in his opinion, it is in any other way contrary to public policy; but notwithstanding the refusal of the Minister, the person concerned shall cease to be a citizen of the United Republic at the time prescribed under this Act. (3) Notwithstanding anything in this Act or any other written law to the contrary, any woman who is a citizen by birth of the United Republic who renounces her citizenship of the United Republic upon getting married to a citizen of another country may, where the marriage breaks down, revert to her citizenship by birth of the United Republic on such conditions as the minister may, by regulations published in the Gazette impose.
Section 12(3) allows you to once again become a citizen of Tanzania. Issues of dumping or otherwise are not an issue and unless you have withheld information from us, your consultants are misguiding you.
Translation mistake
If there is a law that is drafted in Kiswahili and translated in English, and there is a translation error, then what law shall prevail? I have noted a number of mistakes in translation of laws, policies and the like and wish to understand what would happen.
IO, Dar
Section 84 of the Interpretation of Laws Act provides in section 84 as follows: (1) The language of the laws of Tanzania shall be English or Kiswahili or both. (2) Where any written law is translated from one language into another and published in both languages, then in the case of conflict or doubt as to the meaning of any word or expression, the version of the language in which the law was enacted shall take precedence. (3) Where any written law is enacted in both languages and there occurs a conflict or doubt as to the meaning of any word or expression, the English version shall take precedence.
Therefore if a law was initially drafted in Kiswahili (there are very few, if any, that are drafted in Kiswahili) then, in case of translation error, the Kiswahili version will prevail over the English version. However if a law is drafted and enacted in both English and Kiswahili (no translation), then the English version will prevail.