Q&A – 27 June 2016

Disclaimers in parking lots

I drive a vogue which I love as much as I love my family. I take care of it as being part of my family and in order to protect it, I pay exorbitant monthly fees to park in one building in town with an exclusive parking lot. To my surprise the owner of the building has kept signs everywhere in the building that parking is at the owner’s risk. I am surprised as I pay exorbitant fees for the parking, now do I have to also hire a security company to guard my car? What does the law provide? How can the owner exempt himself from liability while at the same time he demands so much for parking?
KA, Dar

The law of tort requires owners of the buildings to ensure that the buildings are safe for the persons who are invited therein. The owner of the building where you park your car is in the business of renting spaces for parking and also charges fees on every person who parks in that building. Hence he is responsible to take all reasonable measures to ensure that the cars which are parked in his business place are safe from theft or damage.

If the cars are damaged or stolen due to owners negligence or employee’s negligence, he may be held liable under the law of tort. Such signs that parking is at owner’s risk will not exempt him from tortious liability unless he can prove that he had taken all reasonable measures to ensure that the cars are safe and that any damage or theft of the car or spare parts was not due to his or his employee’s negligence.

The signs that parking is at owners risk are usually attempts by such building owners to limit or reduce potential future liability. However such a sign should not deter you to seek compensation from the owner in case something does get stolen or damaged.

Similarly you see such signs in gyms where gymn owners also state that those working out at gymn’s do so at their own risk. As explained above, these signs are just attempts to limit liability but cannot outrightly exclude liability.

New evidence on appeal

We lost our case at the High Court in Dar es Salaam and have filed an appeal to the Court of Appeal. We have also changed attorneys in the case and realized that some key piece of evidence was not adduced during the trial. Can we bring this new piece of evidence before the Court of Appeal? What kind of a decision can the Court of Appeal deliver?
TO, Dar

Rule 36 of the Court of Appeal Rules states that (1) On any appeal from a decision of the High Court or Tribunal acting in the exercise of its original jurisdiction, the Court may—

(a) re-appraise the evidence and draw inferences of fact; and (b) in its discretion, for sufficient reason, take additional evidence or direct that additional evidence be taken by the trial court or by a commissioner. (2) When additional evidence is taken by the Court, it may be oral or by affidavit and the Court may allow the cross examination of any deponent.

We are unsure what you mean by what kind of decision the Court of Appeal may give but rule 38 states that the Court may, in dealing with any appeal so far as its jurisdiction permits, confirm, reverse or vary the decision of the High Court or Tribunal or remit the proceedings to the High Court or Tribunal with such directions as may be appropriate, or to order a new trial, and to make any necessary incidental or consequential orders including orders as to costs.

Hence your Judgment from the High Court may be confirmed, reversed, varied or remitted back to the High Court with appropriate directions. Your lawyers can guide you further.

Executor neglects to pay licence fees

Our father passed away years back and appointed his friend as an executor. All formalities on grant of probate were complied with subsequent to the death of our father and ultimately the Court appointed my father’s friend as an executor. Recently we have noticed that the executor did not pay rent in one of the key primary mining licenses which our late father was holding. The license has now been revoked and we’ve been ordered to vacate from the mining site as it has been reallocated to another person. As heirs, is there a way we can sue the executor because we had brought it to his attention before only to find recently that he had lied that he had duly paid the fees. My brother who, is a mining consultant, has already started following up with the Commissioner of Minerals to inquire about the revocation but I want to check with you if we can make the executor also liable. Please guide.
CV, Dar

The Probate and Administration of Estates Act [Cap 352 R.E. 2002] makes an executor or administrator liable for misapplication and neglect which results into devastation of the estate. Therefore when an executor or administrator misapplies the estate of the deceased, or subjects it to loss or damage, she or he is liable to make good the loss or damage so occasioned. Also when an executor or administrator occasions a loss to the estate by neglecting to get in any part of the property of the deceased, he is liable to make good such amount.  Thus it can safely be said that based on the facts above, you seem to have a good cause of action against the executor. Very few people know this but persons who are appointed as executors must know that they can be personally liable for their actions.