By FB ATTORNEYS, 1st June 2011 @ 12:00, Total Comments: 0, Hits: 4208
In our column of few months ago, we had addressed the issue of whether a non Tanzanian citizen, who was the beneficiary under a Will, could inherit a property as per the wishes of the testator (Will maker).
The issue encompassed the land act as we understood it at the time and we answered the question in the negative in that it was not legal for the property to be transferred to a non Tanzanian because the Land Act prohibited non Tanzanians from owning land. We wish to further expand on this question based on a landmark judgment delivered at the High Court of Tanzania, District Registry by Dr Fauz Twaib, J, on May 13th 2011.
When we had answered the inheritance question, our team had taken a strict interpretation of the law, as we understood it. The Land Act in section 20 is very clear and says “for avoidance of doubt, a non citizen shall not be allocated or granted land unless it is for investment purposes under the Tanzania Investment Act” Our stand in the question we answered was as per section 20 of the Land Act.
The Honourable Judge in his Judgment on a case that is quite similar to the question we had answered, has clarified the position of the law and stated that when a person dies, his or her property moves to the beneficiary under what is called transmission as per the law, and not by way of allocation, grant or transfer as captured by section 20 of the Land Act. Hence the transmission of property does not, in the opinion of the Court, get captured by section 20 of the Land Act.
We quote one of the paragraphs of the judgment. “I do not think it will be within the spirit of this provision to say that a deceased’s heir cannot inherit landed property unless he/she is a Tanzanian. Indeed, from a legal perspective as I have endeavored to explain above, it is clear to me, and I so hold, that a bequest of a deceased’s property upon his/her death is neither a grant nor an allocation of a right of occupancy. Consequently, it is legally possible for a bequest to be made in favour of a non citizen.
Hence the Court has ruled that it is legal for a non Tanzanian to inherit a property under a Will or letters of administration as it does not get captured by the Land Act.
Unless an appeal is taken and the decision is reversed, this is the position of the law as it stands today.
Ex parte proceedings against the AG
Sometime in 2009, I filed a suit against a government department for compensation for injuries I sustained resulting from police torture. The hearing of the case has on several times been adjourned because the Attorney General does not appear in Court despite the Court summons having been served upon him.
My advocate has requested the Court to proceed in the absence of the Attorney General but the Judge is reluctant. Although my advocate is of a different view, I have a feeling that the judge is doing so because the case is against the government and more so because it involves a police officer. What should I do?
We do not have Court proceedings to enable us know exactly what have been the reasons of the Court for not accepting to proceed with the case in the absence of the Attorney General. However in view of the facts you have given us, we do not see any reason of faulting the judge. Under the law, there are special procedures to follow where the Attorney General, as a Defendant, fails to appear on the date fixed for hearing of the case.
Unlike in other civil cases, in all civil proceedings in which the Attorney General is a party, the case cannot proceed in his absence right away. In case of default of appearance, the present party has to apply in writing for leave of the Court to proceed ex parte. Once this is done, the Court will fix a date for hearing of the application in which case the Attorney General must be notified.
If on the hearing date of the said application, the Attorney General appears and assigns good cause(s) for his previous non appearance, he may be heard in answer to the suit as if he had appeared on that day fixed for hearing of the main suit. But if he fails to account for his previous non appearance, leave may be granted to proceed against him ex parte. This is the normal Court procedure in cases that involve the Attorney General.
Scared of Will leakage
I do not have a Will because I am worried that its contents will leak. I need to give some of my assets to people that my family will not want me to and if they find out it can create great problems for me. What should I do? How will my Will appear when I am dead?
Unfortunately when you don’t have a Will, which is probably the case when you are reading this question, you are going to cause greater chaos. You will not be here to witness it, but it can ruin your entire family. There is no shortage of examples in the community around you.
Depending on your religion and background, you can decide who you want to give what, as long as these are your assets. We believe you should make a Will immediately, and leave it with your attorney. You should also inform a close friend, in addition to informing the attorney, to inform your family that the Will is with the attorney.
If you mistrust your attorney, there are special Will Banks outside in Europe and elsewhere (we have not heard of any in Tanzania), where your Will will be stored and physically be brought to the executor upon your demise. The delivery would only be made when the executor, a close friend or any of the beneficiaries inform the Will Bank officials of your demise. You may want to consider this option. It is secure and discrete.
Send in your questions by e-mail to: email@example.com or by post to: Q&A with FB Attorneys C/o The Daily News, P.O. Box 9033 DSM, Tanzania.
To receive this column by email, please send a blank e-mail to firstname.lastname@example.org.
You can also read the column online. Logon to www.fbattorneys.com and click on news.
This column is intended to give you a general overview of the Law. It is not a substitute to the role of your legal advisor. If you have legal issues, you are strongly recommended to contact your attorney.
Total Comments on the above stories (0)
TSN Daily News building, Samora Avenue, Plot No. 7, P.O.Box 9033, Dar es Salaam, Tanzania.