Q&A – 12 September 2022

DNA sample for research

I am a Tanzanian pursuing a PhD in microbiology. My thesis focuses on DNA analysis to determine the low mortality rate of elderly people in a certain locality in Tanzania. Last year I consulted the elders and local government leaders of that area who succeeded in convincing the residents there to consent to taking their DNA samples for the study. While planning to start sample collection, I am getting an opinion that there are legal obligations which I have to fulfill before starting collection of the DNA samples. Please guide me if there is such a process.
AR, Dar

Taking DNA samples is governed by the Human DNA Test Regulation Act, 2009 (the Act). Section 38(2) of the Act requires any person who intends to conduct medical and treatment research which involves Human DNA or other genetic material to apply for a permit in writing in a prescribed form to the Regulator of Human DNA Services (the Regulator) before the commencement of such research. The application should be accompanied by a statement stating whether the use of samples for Human DNA is essential and necessary to the research; how the benefit of research outcomes outweighs the potential risks to the sample sources privacy that may result from the analysis of their samples; whether the research proposal contains adequate safeguards to protect against the disclosure of private genetic information to be generated by the research; whether the researcher is qualified and meets the requirements provided under the Act in the collection and management of samples for Human DNA and private genetic information; and the declaration on that the researcher shall not reveal or divulge in her or his report or publication findings which disclose names of the sample sources.

The Regulator upon being satisfied that the application complied with the requirements set above shall grant a permit and where he is dissatisfied by the application, he shall give reasons in writing for refusal. We recommend you comply with the above.

Limitation period for recovery of land by prisoners

About twenty years ago, I came to Dar es Salaam to visit my brother. Near his residence, there was a bar where we used to go for recreation. One weekend a fight ensued between two gentlemen who were boozing with their girlfriends. Acting in good faith, I intervened to persuade them to stop fighting. In the process, one of them pulled out his pistol and shot the other who died instantly. Police came and picked the shooter, the girlfriend and me. The matter went to court and in 2002 the shooter and I were sentenced for murder. My brother assisted me to lodge an appeal at the Court of Appeal which in 2015 set aside the sentence and released me unconditionally. After the release, I went home to find that my neighbor had trespassed and built a house in my land since the  year 2002. In 2019 I instituted a suit against my neighbor for recovery of my land but the defendant has raised an objection to my suit that it has been filed out of time because it has been over 12 years since the defendant encroached the land. Is this objection meritorious?  
AC, Mwanza

The defendant has misconceived the position of the Law of Limitation which governs time limitation for instituting suits for recovery of land. Generally, a suit for recovery of land should be instituted not later than 12 years from the time when the dispute arose. Besides that general rule, the law gives clemency for exclusion of certain periods. In your case, you could not sue your neighbor while in jail thus the 12 years rule started to accrue in the year 2015 when you were released from jail. Hence in your case, the period from 2002, when your neighbor trespassed into your land, to 2015 when you were released from jail, is excluded in computing the twelve years in which you could institute the suit. In 2019 when you instituted the suit only 4 years had lapsed from the time when you were released from jail, thus the suit was instituted within the time limitation prescribed by the Law of Limitation Act, given the misfortunes you encountered.

Will bequeathing same property to different persons

I am an executor of a Will of my late brother and have encountered a problem in the execution of that Will. The problem arises from the act of my late brother to bequeath a property severally to two children. Among several landed properties which belonged to my brother, there is a house in one township in Shinyanga region, which is double allocated. In one clause at the commencement of the Will he gave the house to the “first born” but somewhere nearer to the end of the Will he bequeathed the same house to his “only daughter”, who is not the first born. Please advise me.
JJ, Kayanga

Construction of Wills in Tanzania is mainly governed by the Indian Succession Act, 1865 (the Act). The problem you are facing is addressed by section 75 of the Act. The Act states clearly that where two clauses or gifts in a Will are irreconcilable, so that they cannot possibly stand together, the last shall prevail. Based on that provision of the law, we opine that it is likelier than not that the house will go to the deceased’s only daughter, although we have not seen any case law on this section being tested. However, you may also want to consult your lawyer who can guide you further after reading the entire Will.