Q&A – 4 October 2010

Usurpation of prosecution’s powers by a magistrate

My brother was charged and later convicted of the offence of breaking into a shop and stealing. Having found to be in possession of stolen goods, he was initially a state witness. During his testimony the magistrate ordered my brother be added in the charge sheet with the accused because the magistrate strongly believed, that my brother had played a role in the offence. Is this fair? Does a magistrate have such powers?
HT, Dar

If all your facts are correct, your brother was wrongly added to the charge sheet and hence wrongly convicted. The Criminal Procedure Act only empowers Courts of law to amend a charge sheet where it is defective in either substance or form. The law does not give power to the Court to usurp the prosecutor’s powers and order that a person be included in the charge sheet. In your case the Court misdirected itself. You have all the right to appeal- hopefully you are within the statutory period to appeal to the High Court of Tanzania.

Claiming inheritance from my father

My father is a very rich person- one of the richest in the country. I am well taken care of and have access to pocket money, a car and all the works. My father however does not want to give me funds to start a business that I could manage on my own. He claims that upon his demise I shall get 50% of his wealth. I am turning 30 and would like to pre-claim this inheritance from my father and live my own life. I am also scared that he might change his mind in the Will as it is rumoured he has a mistress and children with her. I would like to confront him about this extramarital relationship. Please advice.
BT, Dar

We assume that you want us to advice you on whether you can claim under the Will and not whether you should confront your father about having a mistress. Unfortunately if it is the latter, we are not qualified to answer the question.

To begin with, you are of a mature age and not a child by any definition. We know of no law in any jurisdiction that allows the beneficiary of a Will to pre-claim their portion of the testator’s estate. A Will is an instrument that gets invoked upon the death of the testator.

Fortunately (or unfortunately) your father is still alive and you cannot claim under the will. It makes no difference if your father is the richest man in Tanzania or the richest man in Africa-Amount of wealth doesn’t change the law.

Also be informed that a Will is a changeable instrument and is not cast in stone. It can be changed at any time by the testator. Upsetting your father in any way can make him change his mind about you- do keep that in mind when you confront him about the mistress.

Defence procedure in summary suit

I bought a car and issued a post dated cheque of Tsh 20M. Upon giving the cheque, I was handed over the vehicle which I started using. The seller presented the cheque and it bounced as the bank had no funds to pay. The seller being aggrieved filed a summary suit against me, claiming amongst others payment of the sell price and damages. I am not legally trained and don’t know if this is an offence. Please give me the best advice
TH, Morogoro

In answering this we assume that when you said the bank did not have money to pay, it was your personal account on which the cheque was drawn that had no funds available.

Summary proceedings are ordinarily available for cases that require prompt action and generally involve a small number of clear-cut issues for example non-payment of utility bill, default in mortgages and bounced cheques, as is the case here. The defence under summary suit is not automatic and the defendant has to apply to the respective Court within the time frame indicated in the summons, for leave to appear and defend his case. The application shall be accompanied by affidavit which should indicate sufficient facts which may require the Plaintiff to prove before he is entitled to the summary judgment. In short the affidavit should disclose triable issues to the satisfaction of the Court.

In your question, you have not mentioned why the cheque bounced. Should you not have sufficient grounds to defend your position, it may be difficult to satisfy the Court if there are triable issues and the Court may reject your application. If your application to defend the suit is rejected, you may find judgment being entered against you.

Our ‘best piece of advice’ is not what you perhaps want to hear- pay the funds to your supplier immediately and pray that he waives the damages.

You do not need to be legally trained to know the consequences of issuing a cheque when your account does not have sufficient funds- this is also a criminal offence called kite flying and is imprisonable.

Boss makes ten times my salary

I came back from Europe two years ago and have been working as a secretary in a mining company in Mwanza. Few weeks ago I managed to get access to the payroll of the company and found that my boss, who is not as smart as he thinks, gets paid ten times my salary. Is that not discriminatory? How can one person be paid so much? How can I institute a suit against the company?
JL, Mwanza

There is no law in Tanzania that limits the amount of executive pay in the private sector. You claim to have lived in Europe and should know about this. Whether your boss is as smart as he thinks, or looks, does not matter. As long as you are being paid above the minimum salary, the mining company is not in breach of any law.

We must mention one more thing- your action of illegally viewing the payroll could lead to your dismissal. Please take note of that.