Q&A – 17 May 2021

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Presumption of death

My father was fisherman. Last year he and his colleague left home and went to the ocean for fishing. Since then, we have never heard from him or his colleagues. Considering it was windy the day they left home, we suspect their canoe might have capsized and they must have died in the ocean. We would like to file a petition for probate in Court to appoint an administrator of the estate but are unsure as we don’t have the death or burial certificate to support the petition. Can you guide us what to do to prove death if we don’t have a birth or burial certificate?
II, Dar

Section 117 and 122 of the Evidence Act [Cap.6 R.E 2019] gives the Court powers to presume death of a person by drawing inference from the circumstances of disappearance of a person alleged to be dead. For the Court to be able to presume that someone is dead due to his disappearance, there must be evidence proving that the person claimed to be dead has not been heard from within 5 years by those who would naturally have heard of him if he had been alive. This means, in the absence of a burial certificate, death certificate or autopsy, anybody who wants the Court to assume death must lead evidence from which the Court can safely draw a conclusion that the person alleged to be dead might be really dead.

Once the possibility of death is proved, the burden shifts to the person who denies death, if any, to prove that the person alleged to be dead is possibly alive. Since it is only 1 year since your father has gone missing, in law, it is still premature for the Court to presume that he is really dead. You have to wait until the expiration of 5 years for you to file a petition for probate based on the presumption of death.

Depending on other facts, there might be other remedies available in the interim and your lawyer can guide you further.

Wearing a police uniform

I bought a secondhand skirt and blouse from a mitumba shop that looks like a uniform normally worn by female prison wardens. My friends are telling me that it is an offence to wear such clothes and I can be prosecuted if am found wearing it. Is there any legal substance in this threat?
TT, Dar

Section 178 of the Penal Code [Cap.16 R.E 2019] prohibits civilians from wearing uniform or attire having the appearance or bearing of any of the regimental or other distinct marks of the Police or Tanzania People’s Defence Forces uniform without the permission of the President. A civilian can wear clothes or attire that resemble Police or Tanzania People’s Defence Forces uniform if such clothes or attire are worn for the purpose of stage play performed lawfully in public. However, even where the uniform or attire having the appearance of the Police or Tanzania People Defence Forces’ uniform is worn for the purpose public stage play, the wearing of such uniform or attire should not be in the manner that undermines it. It is an offence to undermine Police or Tanzania People’s Defence Forces uniform.

Unlawful wearing of a uniform or attire of Police or Tanzania People Defence Forces is an offence attracting a sentence of one month in prison or a fine of TZS 200,000.

However, section 178 does not criminalise wearing a uniform or attire having appearance of uniforms worn by prison wardens or other law enforcement agents like immigration. However, a person found wearing a uniform or attire of a prison warden or immigration officer may be charged with impersonation if the purpose of wearing the uniform is to assume the role of the prison warden or immigration officer.

Suing the Judiciary

I would like to know if the High Court or subordinate Court can be sued for recovery of the Court fees it has overcharged which it refuses to refund after several demands. What is the procedure for suing the Court and which Court has jurisdiction to hear a case against the Court? I also want to institute a constitutional petition in Court for violation of my rights. Am I required to notify anyone of my intention to sue?
PP, Mwanza

A Court can be sued just like any other government department. A suit against the Court is treated like a government suit and has to follow the procedure laid down under the Government Proceedings Act [Cap. 5 R.E 2019] as amended by Act No.1 of 2020. As per section 6 of the Government Proceedings Act, the claimant must first give 90 days’ notice of intention to sue the Judiciary. The notice must be addressed to the Chief Court Administrator and a copy of it served on the Attorney General and the Solicitor General. The notice of intention to sue should specify the basis of claim against the Judiciary. After the expiration of 90 days’ notice a suit can be brought against the Judiciary and the Attorney General should be joined as a necessary party. Failure to join the Attorney General renders the suit incompetent.

Since Judiciary is treated like a government department and a suit against it must be instituted in the High Court irrespective of the amount involved in the suit.

However constitutional petitions are not governed by the Government Proceedings Act, thus their institution does not require giving notice of intention to sue the Government as is normally done in civil suits. Procedure for institution of constitutional petitions is prescribed under the Basic Rights and Duties Enforcement Act and the Rules made thereunder.