Q&A – 26 March 2012

Hair cut too short

I went to my barber and asked him to slightly trim my hair and moustache. He trimmed my hair too short and ended up cutting half of my moustache. I had no choice but to get the other half removed. When I threatened him with legal action he said I had no contract with him. I tried reporting it to the police who surprisingly refused to even record my statement. I am getting married soon and not sure if I should proceed with the ceremony. What should I do?
TP, Dar

Whilst we sympathise with you, we do not understand why you are unsure about getting married after this mishap at the barbers shop; surely both your hair and moustache will grow back. We are also unclear as to what the connection is between your marriage and the haircut and cannot comment on whether you should or should not proceed with your marriage.
As for the police complaint, our opinion is that this is not a criminal matter. If the police start entertaining such matters, they would be flooded with complaints. The police actions are justified.

We now come to the main issue- the cutting of your moustache and the hair. We believe that when you sat on the barber’s chair, you had a contract as in it was agreed that you would have a haircut and it would be paid for. This establishes the contractual relationship and we believe that you can sue your barber under the law of contract. This might not be as simple as it sounds as you will have to prove that there was a breach of the contract and you suffered damages.

We did not find any local precedents on this and are unsure how far the Courts in Tanzania will entertain this matter. Your lawyer can guide you further.

Spider bite on board aircraft

I flew outside Tanzania in a very popular airline. When using the toilet in midair I felt a strong pinch in my feet which at first I thought was a muscle pull. My foot felt heavy and upon landing I went straight to the airport airline clinic where I was informed that it was a very uncommon spider bite. I found out that apparently one of the biggest challenges on board aircraft toilets are spiders, some of whom are deadly. The airline clinic treated me but I had to undergo severe pain and was admitted in hospital for three days. The airline paid for the medical expenses but has refused to compensate me further. Can I sue?
GO, Dar

You bought a ticket and hence established a contract with the airline to ensure you are transported safely. A spider in an aircraft is a serious breach of your and other passengers safety and if you can prove that the spider was indeed in the aircraft and you did not carry it in your shoes or elsewhere and boarded, you have a good case.

The normal principle in law is one who alleges is the one who has to prove. You need to work on the proof before you decide to sue. Your lawyers may provide further advice.

Director involved in fraud

I am a director and shareholder in a manufacturing company in Tanzania. The Managing Director who is also a shareholder and director has been playing with the company funds and hiding a lot of entries with the books of accounts. This was picked up recently by an independent auditor where it was also found that the current company appointed auditor had been colluding with the MD to hide entries and under declare profits. Is this not a criminal offence?
FV, Dar

The criminal statute in Tanzania is called the Penal code which provides for such an occurrence. It states that any person who being a director or officer of a corporation or company, receives or possesses himself as such of any of the property of the corporation or company otherwise than in payment of a just debt -or demand, and with intent to defraud, omits either to make a full and true entry thereof in the books and accounts of the corporation or company, or to cause or direct such an entry to be made therein; or being a director, officer or member of a corporation or company, does any of the following acts with intent to defraud, that is to say—destroys, alters, mutilates or falsifies any book, document, valuable security or account, which belongs to the corporation or company, or any entry in any such book, document or account, or is privy to any such act; is guilty of a felony, and is liable to imprisonment for fourteen years.

From the above you can see that this is a criminal offence and the MD faces a stiff custodial sentence should these allegations be true.
Apart from the criminality, you also can file a suit for recovery of the funds that have been misused including the under declared profits.

The criminal action may not automatically lead to a recovery and we advice that you also consider instituting a civil suit. It is not unwise to get a legal advisor to assist you in this matter.

Proof in ex-parte hearing

I sued a company in the Resident Magistrates Court and the case proceeded without the defendant appearing. It is strange that when delivering the judgment, the Court did not rule in my favour on grounds that I did not sufficiently prove my case. Was this proper? Was the Court not supposed to believe me and judge in my favour as the defendant said nothing and called no witnesses as it wasn’t present?
SA, Dar

It is a matter of law that every claim in civil suit must be proved on the balance of convenience. Perhaps you did not establish your claims to the required standards. We cannot at this instance fault the Court as we do not know what testimony you gave and how the Court evaluated the evidence. This can only be done upon examining the judgment.

Simply because you had an exparte hearing does not mean you must win the case. It is tantamount to kicking a penalty in an empty goal, where the chances of missing still exist.