Q&A – 24 September 2018

Will says I should marry a rich man

My father left a Will that says I should marry a rich person. I agree with him but what happens to my marriage if I don’t comply. Can the Will executor challenge my marriage?
TU, Dar

The answer is your father’s Will cannot decide who you get married to, much as you agree with him. Infact even if he was alive he could not have dictated such terms to you. The same applies to the executor.

We are also not sure what rich means? Has your dad defined it? Is it financial wealth that he meant, intellectual wealth, health wealth or what other form of wealth. Wealth is very subjective and it is said the biggest two wealths are health and education. Perhaps he meant these two as opposed to financial wealth. In any case, the answer to this question will remain the same.

We wish you all the best as you pursue to get married.

Offence of conspiracy

What is the offence of conspiracy and is it bailable? Is aiding and abetting a crime?
TS, Dar

The Penal Code of Tanzania under sections 384 to 386 makes it a criminal offence for two or more people to form an agreement to commit an offence. Conspiracy is an offence on its own and one can be charged even if the intended offence is not committed or attempted. Equally, it can be charged even if the intended offence is committed, however depending on by whom.

On the issue of bail, under section 148(5) of the Criminal Procedure Act the non-bailable offences have been clearly stipulated which include murder, treason, armed robbery, money laundering etc. Therefore whether conspiracy is bailable or non-bailable will depend on the nature of the offence which is the object of conspiracy.

A criminal charge of aiding and abetting can usually be brought against anyone who helps in the commission of a crime. Our Penal Code under section 22 to 24 clearly provides that every person who aids or abets another in committing the offence is guilty of the offence and may be charged with actually committing it.

A person who is charged with aiding and abetting is usually not present when the crime itself is committed, but he or she has knowledge of the crime before and may assist in its commission through advice, actions or financial support. Hence if you drive someone to a place where the person is going to rob someone and you know about this, you can be charged as well.

The crime of aiding and abetting requires the following elements to be proved beyond a reasonable doubt: the crime was committed; the accused aided, counselled, commanded, induced or procured the person committing the crime; the accused acted with the intent to facilitate the crime and the accused acted before the crime was completed.

Insurance company rejects claim

I am a real estate broker and earn a half months rent every year for property that I manage to lease on behalf of my clients who are ultimately the landlords. Few months ago one of the most prime properties that I had been involved in got gutted by fire. I have insurance against loss of business and had fully declared the source of income. The insurance company has come back saying I did not have insurable interest in the transaction and hence my claim has been rejected. My lawyers agree with the opinion of the insurer. What are your views?
PW, Dar

The concept of insurance is that you cannot insure something that does not belong to you, or in which you do not have an interest. For example you cannot insure someone else’s house and have the insurance policy in your name. Even though initially the insurance company may collect the premium (they love to do that!), at the time of the claim they will repudiate the claim since you do not have an interest in the property, what the insurers term insurable interest.

Coming to your question, it seems that you have a contract right which may actually be an insurable interest, even though you do not have rights specifically in the property that was gutted down by fire. This may sound like a radical opinion but you need to look at your insurance policy from this new angle.

The problem here is to develop a working guide for determining just what interrelation between contract performance and existence of the property insured suffices to constitute compliance with the requirement of insurable interest.

There are few cases allowing an insurable interest based on contract right without property right- your case seems to be one such case. We believe you have a chance of pursuing this matter successfully against the insurance company but will need an expert to study the case.

Contract breach

I entered into a contract with a fellow restaurant owner who I bought over, not to open a restaurant to compete with me. This was the deal from the beginning and we both agreed on it. It has been exactly six months and a new restaurant has mushroomed. The restaurant owner from whom I purchased denies that it is his- however it is quite clear that he is running it. He is physically there every day and I have witnessed this myself. Can I get an injunction to stop him from operating that restaurant?
LO, Dar

We have a couple of observations here. It is unclear if your contract disallowed him to open a restaurant or disallowed him to work in any restaurant. We raise this because he can easily come in and tell you that he is not in breach of the contract as he has not opened a restaurant but is merely working there. You may want to carefully look into this.

We now address the question of whether you can get an injunction against him. Our opinion is that it is very unlikely you will be successful in getting an injunction or sue the former restaurant owner. This is because that particular clause not to open a restaurant will likely be held by a Court to be in restraint of trade and against public policy. If he is a entrepreneur or chef, what do you expect him to do? Your attorneys can interpret the entire contract and guide you further but from the facts you have given us we believe your chances of success are quite slim.