Q&A – 2 January 2012

Fat free restaurant misleading

I have been in the restaurant business for the last 30 years. Six months ago, another restaurant has opened next to me whose name is Kula Chakula bila Mafuta Restaurant (in English come eat fat free food restaurant). The restaurant has its name as fat free food restaurant but sells deep fried chicken, chips, chips mayai and everything that has fat in it. I do not mind competing with the restaurant but the name that they are using is creating confusion amongst people who end up going there believing that indeed the food is fat free. Is this name not misleading to people and what can I do about it? My second question is can a company after registration change its name?
AP, Dar

The Companies Act does come to your protection as in if in the Minister of Trades and Industries opinion the name by which a company is registered gives so misleading an indication of the nature of its activities as to be likely to cause harm to the public, he or she may direct it to change its name.

If the direction is not challenged in Court must then be complied with within a period of 6 weeks from the date of the direction or such longer period as the Registrar of Companies may think fi t to allow.

The law further states that the company may, within a period of 3 weeks from the date of the direction, apply to the court to set it aside; and the court may set the direction aside or confi rm it and, if it confi rms the direction, shall specify a period within which it must be complied with. If a company makes default in complying with a direction under this section, it is
liable to a fi ne and, for continued contravention, to a default fine.

Our advice is for you to write to the Minister of Trade and Industries, explaining the situation and stressing the harm that in your opinion this misleading name is causing to the public.

We answer your second question in the affi rmative in that a company may by special resolution and with the approval of the Registrar signified in writing change its name. If the Registrar refuses to give his approval, he shall give his reasons. The registrar shall enter the new name on the register in place of the former name, and issue to the company a certifi cate of change of name, and shall notify such change of name in the Gazette.

It must be noted that a change of name by a company under any of the circumstances above shall not affect any rights or obligations of the company or render defective any legal proceedings by or against the company, and any legal proceedings that might have been continued or commenced against it by its former name may be continued or commenced against it by its new name.

Will not signed by lawyer

My lawyer has not signed my Will and is now dead. Does that invalidate my Will. I am really worried as I do not want to leave an invalid Will. Please guide me?
FO, Arusha

First and foremost there is no requirement that your Will must be signed by your lawyer. Hence it does not matter whether he is dead or alive and you need not panic.

Secondly, your Will can be changed at any time meaning that even though he is no more, you can still go ahead and change your Will. A Will is an evolving instruent and changeable document and must be reviewed yearly or every two years. If you are still worried, we suggest you draft a new Will and get two witnesses to sign on it in your presence.

Breach of contract

I entered into a contract with a party that made advance payment, and other interim payments but failed to pay the fi nal installment which is now overdue. After following up for many months and without any response from them, they have referred the matter to arbitration. I fi nd it quite shocking that the party in default is referring this to arbitration and not myself. What should I do? All I want is my money.
GO, Dar

It is very likely that your contract has an arbitration clause that refers the matter to arbitration. Arbitration is the determination of a dispute by one or more independent third parties (the arbitrators) rather than by court. These arbitrators are appointed by the parties in accordance with the terms of the agreement. The arbitrator is bound to apply the law accurately and must conform to the rules of natural justice. Depending on the arbitration clause and the ‘fairness’ of the decision, the award made by an arbitrator can be challenged in court. You have not mentioned if the contract you entered into has an arbitration clause. If it does you will have to go for arbitration. If there is no arbitration clause, you need not arbitrate and can fi le a recovery suit.

You are shocked that the defaulting party has referred this to arbitration. Normal arbitration clauses are worded such that if a dispute does arise any of the affected parties can refer this to arbitration. You have not told us if a dispute arose only that payment has not been affected. Is that a dispute that can be interpreted into the arbitration clause? We cannot answer that as we do not have all the details; what we can say for sure is that the defaulting party seems to think there is a dispute somewhere and hence withholding of the payment.

In the interest of time and depending on the amounts involved, we suggest you proceed to arbitrate as arbitration proceedings are fast and can be disposed off within a few weeks.