Q&A – 18 March 2013

Taping of bedroom noises

I have reason to believe that my neighbor has been secretly taping noises and movement in my bedroom. Can I sue my neighbour? This is causing a strenuous relationship with my boyfriend who has found out about this and is now artificially in love. What should I do?
YU, Dar

You are entitled to your privacy and this recording of your bedroom scenes is in direct breach of privacy, is actionable and you can surely sue your neighbor for damages. You will however need to prove that he has recorded you and that might be a challenge. Further if the evidence needs to be tendered in Court than the same recording might have to be played in Court and you do not want further embarrassment and hence you should plan your move carefully.

As for what you can do, apart from suing, you can either move out, reduce the level of noises or add layers to the wall. Bedroom noises are quite normal and we surely cannot advise you to stop making them. The legal strategy can be finalized by your lawyers, whom you should contact.

No legal representative of deceased’s estate

Five years ago I instituted a land case in Court for recovery of my plot on which my neighbor trespassed and built a house. During the pendency of the case my wrongdoer died and I am informed that given the nature of the matter my right to sue survives despite of his death. The problem however is that there is no person who has applied to join in the case as a legal representative of the deceased’s estate. Seemingly there is none. It is exactly two years since the proceedings in Court have stopped because of this. What should I do? I need this case to proceed as I will fail to develop it especially with the increasing cost of construction.
GJ, Dar

It is true that if during the pendency of a suit the defendant dies and the plaintiff’s right to sue survives, the suit will not abate instead the Court may upon application for substitution filed by the legal representative of the deceased continue with hearing of the suit. In your case, it is highly suspicious that the deceased has no legal representative to be joined in the case.

However assuming the facts you have given us are true, then if you can satisfy the Court that the deceased has no legal representative, the Court can proceed to hear your case in the absence of a person representing the estate of the deceased.
In the alternative we advise you to apply to the Court for appointment of the Administrator General or an officer of the Court to represent the estate of the deceased for the purpose of the case and any judgment or decree that the Court will subsequently pass in the suit shall bind the estate of the deceased person to the same extent as it would have been bound if a personal representative of the deceased person had been a party to the case, provided that before the Court could make such an order to appoint Administrator General or such officer of the Court, as the case may be, it will cause a notice to be issued to all persons having an interest in the estate of the deceased person. Kindly be so advised.

Employee disappears with company data

We are a software company that has employed many computer programmers in Dar es Salaam. One of the key components of our contract is that an employee cannot leave the office with company data or programming keys. However one particular senior employee has left the company with the laptop and has joined a competitor. What can we do?
UR, Dar

This is happening very often now and it is high time an employer takes stern action against such employees to send a signal to other employees. The operation below might sound costly but is something you should consider so as not to set a bad precedent.

We suggest you put the new employer on notice about this breach and the potential breach that the new employer is engaged in. If the new employer does not remedy, we suggest you sue both your former employee and the new employer under contract and/or tort. You can claim damages amongst others. You should prepare your evidence well- for example the fact that he has left with the laptop is a strong piece of evidence that can be corroborated. Your attorneys can guide you further. You can also look into possibility of reporting to the police as it does sound like a criminal matter as well.

Electronic service in cases

I cannot locate where the defendant is in a commercial case that I have filed at the Commercial Court in Dar es Salaam. My lawyer said we can serve the defendant by e mail. Does our law allow that? How fast is a case supposed to progress at the Commercial Court?
ER, Dar

The Commercial Division procedure rule 17 states that notwithstanding the provisions of rules 9 to 33 of Order V of the Code, substituted services may be effected electronically by way of e-mail or facsimile using the addresses previously disclosed and used between the parties in their business transaction. (2) A copy of such service shall be simultaneously copied to the (3) For the avoidance of doubt, a sent status report shall be deemed as proof of service.

As for the speed, the Commercial Court is all about early determination of matters. Rule 32(2) states that all commercial cases shall proceed and be determined within a period of ten months from the date of commencement, and not more than twelve months. Further Rule 32(3) states that thirty days before the expiry of the time prescribed under sub rule (2), any party to the proceedings may orally apply to the Court for extension of life span of the case, and the Court may upon sufficient reasons adduced grant the application and the party in favour of whom the extension is made shall bear the costs of such extension, unless the Court directs otherwise.

Hence the maximum time a case is supposed to be entertained at the Commercial Court is 12 months unless an application for extension is made.