elibariki mboya vs amina abeid 1999 tzca 24 15 march 1999

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA ( "Y' HF A LI L A . J .A ♦, S A M A T T A . J . A A n d LUGAKINGIRA. J.A. ) CIV I L APPEAL NO. 54 OF 1996

BETWEEN

ELIBARIKI rv ^ M B OYA .............. . . . APPELLANT AND AMINA A B EID ...................... RESPONDENT (Appeal from the Judgement and Decree of the High Court of T anzania at Arusha) (Munuo, J . ) dated 28th November, 199^ in Civil Appeal No. 34 of 1992

JUDGMENT OF THE C O U RT SAMATTA . J . A . : This is a short appeal. It arises from an appellate' judgment of the High Court given on an appeal against a judgment of the Resident M a g i s t r a t e ’s Court of Arusha, At stake is a wooden house known as House No. 521 situated at U n g a Ltd. area in Arusha Municipality. W i t h o u t intending any disrespect to the parties, we shall hereinafter r*fer to the house as "the w ooden h o u s e . 1’ W e shall state the facts of the case briefly, for their details do not contribute anything frhat may be regarded as being material. The appellant successfully sued the respondent in the Resident M a g i s t r a t e ’ s C«urt - for, among other reliefs, vacant possession of the w o o d e n house. The appellant and his five witnesses satisfied the trial Court that on F e b ruary 11, 1988, he entered into a w r itten contract w i t h the respondent whe r e b y the latter sold to him the wooden house for the sum of Shs. 130,000/=. The contract was produced before the court and admitted in evidence as Exhibit "A’ ’ 1. The document was not stamped in accordance w i t h the Stamp Duty Act, 1972, h e reinafter referred to as 11the Act". Acco r d i n g to the appellant's testimony, the contract was signed by all co ncerned and the purchase price paid to the respondent in the presence of the following persons, Nyerere Omari, Hamisi Nino and

Thomas Massawe, Following the respondent's refusal to give him vacant possession of the house, the appellant instituted the civil suit before the Resident M a g i s trate's Court, the decision on which has eventually given rise to the appeal n o w before us, The respondent, who adduced evidence from six witnesses, emphatically denied to have entered into the alleged contract of sale* She admitted to have t h umbprinted Exhibit " A " , but she asserted that she did not k n o w what the docum e n t was w h e n one Hussein Abdallah (who was PW3 at the trial), one *f her neighbours in Unga Ltd. area, asked her t* thumbprint it. Acc o r d i n g to the respondent, the w o oden house was the pi’ operty of her elder sister, one Mwa j u m a Abedi, eleven grand children and herself, all of them having inherited it from her mother. Nar r a t i n g before the^trial court circumstances under whi c h she said she appended her thumbprint to Exhibit "A", the respondent said: "I k n o w one person by the name of Hu s s e i n Abdallah. We are living nearby. In 1988 the said Hussein had a shop. On 11/2/1988 Hussein A b d a l l a h called me. I was drinking liquor in a bar. It was around ... 10,00 or 11,00 a.m. I was already or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly s t a m p e d : 1' At the hearing of the appeal

the appellant was represented by Mr. Mwale, learned advocate, while the respondent appeared in person. In his short but interesting s ubmission Mr. Mwale contended, in essence, citing T r a nsport Equipment L t d . v P.P. V a latnbhia, Civil Reference No. 7 of 1992, that, having held that, contrary to the provisions of the Act, Exhibit nA" v/as not duly stamped, the learned Judge should, instead of allowing the appeal, have invoked proviso (a) to section 46 (1) of the Act, dismissed the appeal and proceed to direct that Exh i b i t "A" be duly stamped. In Transport E q u i p m ent Ltd's case supra there was the question, among others, what order this Court could make in relation to an instrument to w h i c h the provisions of the Act applied but which, notwiths t a n d i n g that it v/as not duly stamped, the High Court acted upon. This Court said it could do what the High Cmirt ought to have done u n der proviso (a) to s. 46 (1) of the Act* The proviso reads: ”Provided that - „ (a) any such instrument not being a receipt, an acknowledgement of debt, a bill of exchange (other than a cheque or a bill of exchange presented for acceptance, accepted or payable elsewhere than in Tanganyika) or a promisory note shall, subject to all just exceptions, be admitted in evidence on payment of the duty w i t h whi c h :,73# No decree shall be reversed or substantially varied, nor shall any

case be remanded, in appeal, on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court." This section is in pari mat e r i a w i t h section 99 of the Indian Civil Procedure Code. In M u h a mmad Hussain Khan v K i s h v a Nandan 1937 All. 6 5 5 , cited in Mul l a on Code of Civil Procedure, 13th ed., Vol. I, at p. 430, the Privy Council, commenting on that section, said: "... there can be no doubt that the rule embodied in s. 99 proceeds u p o n a sound principle, and is calculated to promote j u s t i c e ." Commenting on the same section, in K i r an Sin g h v Chaman Pa swan 1954 S.C. 340 (also cited in the book r e f e r r e d t# above), the Supreme Court of India said: "When a case has been tried by a court on the merits and * judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice." In his book cited above, at p. 431, M u lla makes the following useful comments on section 99: ____ ft the merits of the case or the jurisdiction «f the court. Subject to the law, justice ought to be a d ministered in a manner that commands the respect of the ordinary man. Section 73 of the Code was, in our opinion, enacted to enable relevant courts to achieve that noble goal.

It should also be pointed out, for what it is worth, that that goal is also the spirit underlying section 37 of the Magistrates' Courts Act, 1984. Y/hat does justice demand in this case? We would answer that question by saying that it demands that the appeal be allowed but an order be made, in terms of proviso (a) to s. 46 (1) of the Act, that the duty w i t h w h ich is chargeable to Exhibit "A" be paid. Accordingly, we allow the appeal, set aside the High Court's decision and restore the decision of the Resident Magistrate's Court. The respondent is hereby ordered to pay the duty w i t h which Exhibit "A" is chargeable. We make no order as to costs. D A T E D at ARUSHA this 15th day of March, 1999. L. M. MFALILA

JUST I C E OF APPEAL B. A. 3AMATTA

JUS T I C E OF APPEAL K.S.K. LUGAKINGIRA

J US T I C E OF APPEAL I certify that this is a ;true copy of the original.

DEPUTY R E G I S T E R