Q&A – 4 May 2020

Armchair principle in Will interpretation

I have been assisting drafting of Wills and want to learn more about the Armchair principle when it comes to interpreting a Will. What is this and how does it apply? Some of the English that is used in Will making is so difficult because we are using old English law drafts. What should we do?
FP, Moshi

This principle was enunciated in the Canadian case of Estate of Douglas Carson Smith where the Lady Justice stated the below:

“The guiding principle is that to interpret a will the Court must first look to its language. Only if the Court cannot ascertain the intention of the testator should it look beyond the will itself, in which case the armchair rule applies. This principle is … as follows: if, in the first instance, the testator’s intention cannot be discerned from the will itself, then, since the testator must be taken to have used the language of the will in view of the surrounding circumstances known to him at the time when he made his will, evidence of such circumstances is necessarily admissible, at least insofar as it corresponds to the facts and circumstances referred to in the will – the so-called Armchair rule. That is, the Court may sit in the armchair of the testator, assume the knowledge he had of the extent his assets, the size and makeup of his family and his relationship to its members, so far as such things can be ascertained by the evidence.”

“Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.”

The armchair principle is not always consistently applied and hence the importance of using clear, precise and simple language when drafting a Will. We would strongly recommend that you use modern simpler Will drafts rather than the older versions which even the draftsperson themselves found hard to understand!

Delays caused by TASAC

As a company in the extractive industry, we are forced to use Tanzania Shipping Corporation (TASAC) as our clearing agent. There have been instances of documents being misplaced, instructions not being followed, emails and letters not being responded to, and massive delays by TASAC in clearing our consignment. I cannot be paying demurrage and storage for inefficiencies of TASAC. My consultant says TASAC cannot be sued. Another consultant says that whilst you can sue, you cannot recover these demurrages or storage as damages from TASAC. Is this true? How can this be the case? We are introducing inefficiencies in our systems if we cannot hold TASAC responsible for the way it is operating. Please guide.
UG, Dar

The Tanzania Shipping Agencies Act has established a Corporation to be known as Tanzania Shipping Agencies Corporation, also known in its acronym as TASAC.

This Act states in section 4 that this body corporate (TASAC) will have perpetual succession and a common seal and shall, in its own name be capable of: (a) suing and being sued; (b) acquiring, holding, investing and alienating movable or immovable property; (c) exercising the powers and performing the functions conferred upon it by or under this Act; (d) borrowing and lending; (e) entering into any contract or other transaction, and doing or endeavouring to do all such other acts and things which a body corporate may lawfully perform, do or endeavour to do.

Section 5 of the Act lists the objectives and states that it shall be the underlying objective of the Corporation in carrying out its functions and exercising its powers provided for under this Act, to enhance the benefits of maritime transport in Mainland Tanzania by: (a) promoting effective management and operations of shipping agencies; (b) promoting effective operations of ports and shipping services; (c) maintaining cargo safety and security; (d) promoting and maintaining maritime environment, safety and security; (e) promoting efficiency, economy and reliability; (f) fostering the development and expansion of the maritime transport sector; (g) promoting competition in the shipping agency business; and (h) entering into contractual obligations with other persons or body of persons in order to secure the provision of quality and efficient shipping agencies services, whether by means of concession, joint venture, public, private partnership or other means and to delegate its own functions of providing shipping agency services to one or more parties. You will note that the quality of service and efficiency are some of the key objectives.

TASAC was created under an Act of parliament by the present Administration. The main aim was to increase not decrease efficiency and transparency in the sector. If your claim of inefficiencies is true, it would be counterproductive to the broader economy if TASAC was allowed to remain inefficient. As you can see from section 4, you or any stakeholder is able to sue TASAC as there is no immunity that it has.

What your consultant might be referring to in terms of limited or no liability is referred to in sections 41 to 44 of the Act, but these will not likely apply here. Whether or not to use is upto you, and your lawyers can guide you further.