Q&A – 7 March 2011

Refund of debt by heirs

I am a Tanzanian residing and working in the Tanzanian Embassy in a European capital. While on leave about five years ago, I concluded a contract of purchase of piece of land located in Dar es Salaam. Due to my office commitments I could not process transfer of the purchased land into my name. In 2008 I commenced the transfer process but was unsuccessful due to lack of consent of the Commissioner for Lands. Upon refusal the lawyer who dealt with it informed me that the whole transaction was inoperative and that I should claim my money back. Upon approaching the seller, I was informed by his wife that he had died in an accident a year earlier and that all the deceased assets were administered by an administrator and distributed to the heirs. The amount I paid as advance is substantial. What should I do?
PK, Dar

You have not told us what the reasons were for refusal of the consent by the commissioner for lands. Had we known this reason, we might have advised you to keep on pursuing the consent. Requirement of consent is a mere formality which does not invalidate a contract between you and the seller.

Your question specifically is- can you recover the funds paid in advance? The fact that the seller is dead and his estate has been completely distributed among his heirs should not hinder your progress for recovery. If you have opted not to follow up the consent, we advise you to approach the administrator who will, upon going through the paperwork, have to call upon each heir to refund in proportion your funds paid in advance. In case the administrator does not cooperate, you are legally allowed to institute recovery proceedings against the administrator and all the heirs. We advice you to consult your lawyer for further details.

Tanzanite sold in error

For the last twenty years I have been trading in precious stones in Arusha. About twelve weeks ago, I sold some stones believing them to be Tanzanite. The buyer also checked the stones and paid me Usd 22,000 for the transaction. It now turns out that the stones were not Tanzanite. I have dealt with this buyer for atleast ten years and this mishap is causing me a lot of problems. He wants to cancel the sale. What should I do?
PL, Arusha

In your lengthy question with all the details you provided (we’ve only reproduced the main question) you went on and on about the relationship between you and the buyer. You gave us all the indication that you wanted to refund the purchase price based on this relationship. It is by all means your decision. However when you write to us, we will give you the legal position, as it has stood for many years in similar circumstances. The commercial decision is for you to take. Before you read below, please be warned that our opinion is exactly opposite of what you suggested you wanted to do.

The settled position of the law, since the early 19th century, is that in the absence of explicit contractual statements, the seller assumes the risk that he may have under-charged for an item, and the buyer assumes the risk that he might have over-paid for an item. The issue in your transaction is whether the buyer can rescind the sale because he was ignorant as to the “hypothetical fair market value” of the stone.
Our response is that in the absence of fraud or warranty, the hypothetical value of the property sold, as compared with the price paid, is no ground for rescission of the sale. Neither of you had any knowledge that the stone was not a Tanzanite, so there was no fraud. In addition, there was no agreement of warranty, either stated or implied. Therefore, the risk was equally borne by both of you, and the buyer cannot ‘cancel’ the sale.

A general comment that we cannot resist to make- your approach to this is truly admirable and only heard about in the scriptures. As said in your letter to us, your relationship with the buyer is far more important than the Usd 22,000 and in the premises you can proceed and refund the amount.

Pay as an expat

I was born in Tanzania but have lived in Norway for the past 15 years. I came to visit Tanzania after 10 years and loved the place. I decided to reapply for my Tanzanian passport which I got in a record 7 days. I have now secured a job with a consultancy company and want to apply for a work permit so that I get paid as an expatriate. What should I do?
LO, Dar

Under our laws your action of applying for a second passport is illegal and you are liable to be prosecuted. As of now, Tanzania disallows citizens to have dual citizenship. Applying for a work permit when you are a citizen of Tanzania is also illegal. Your lawyer can guide you further.

Exemption from NSSF

I am an expatriate staff employee by a holding company in the UK. Presently I am working in Tanzania and being paid here. I have a pension scheme back at home but the National Social Security Fund (NSSF) want my company to pay the statutory pension contributions. What should I do?
KJ, Dar

NSSF is governed by the NSSF act. In this act employee is defined as a person who has a contract of employment and is employed in mainland Tanzania.

The normal principle of insurance that the insured, in this case the pensioner, should not benefit twice is also applicable here. You must remember that the pension amounts are your funds entrusted by statute on the NSSF for you to enjoy upon retirement. Since you are already enrolled in a pension scheme back in your country, you can apply to the NSSF for an exemption. If the scheme back home has similarity with the NSSF scheme, in that it is a basic scheme, you may be allowed an exemption. Otherwise you will have to contribute to NSSF locally, failure of which your company may face criminal prosecution.