19850411 TZHC Dar es Salaam

IH '.2;:::,: HIGII J)UTIT OF TANZANIA AT DAR ES 311.LAAM CIVIL APPEAL no·. ·18 OF 198l (6riginal Morog~ro D/C Civii CaE".e I-Jo. 10/si; JOSEPHAT L.K. LUGil.Il\IlJK,'JvftJ ••••••••••••••••••••••••.·.-.APPELL\l'J'T versus .ER. CANUTE J .:.S3l.Tv11t1W!l.. • .- o • • • • • i • .. / •. .-..· .... o . o •• o • • • R.ESPOl-TDEi'!T BAHATI 1 J. This is nn nppenl by Jooephnt ·LugniJ:iuko.uu ago.inst the judgc1ent · and decree of the District Gou:r·t c.t r1orogoro :i.::1 which it wr,s decided that .tb.e sum. of shs.13,000/- plus cost2 cmc1 interest shoulcl he p.::id to the respondent, J:i'ather Canute Vizuwc:nd.J.. by the n1)pellnnt. The facts deposed at the -trial nere thnt the nppellr.mt Josephat the ·reapondent a.:nd tla!at :Fa-:~~itda Lugainukrunu wanted a loan of shs.,13 ,ooo/ ~--f1~on .1!'1'.· - Uzuv;;:mctn :,.pi,,Ia tm"""s sum of shs.13,000/- to the o.ppello.nt and a docur1cmt \'.'C.s prepared :in which the appellnpt ncknowlodges the receipt of shs.13,000/- for busi- ness purposes and that· every time the appellant mkes a sale he would pay·lo% interest. Then at the ·conclusion of the business transaction the shs.13,000/- was to be refunded to the respondent. Ttis wns on 1/6/77~- According to the ev:Ldence of the respondent this agreement meant that there nc.s n promise to repc.y the loan plus 10% prof:i,t. On 15/2/78 the respondent v;rote the c-.ppello.nt nsking for repayment of the loan. The appellant rcpJiod t:::.o.t ilo viould soon po.y back. The replies of the appel_lrmt wore in v,rriting (exl.i.ibit P2 (a) and P2(b). :3ince no money was forthcoming frou t~1e c,ppello.nt the respondent filed this suit. The defence denied receipt of nny loan. The appellant however said that he was o. Director of Eoro.:;oro Sp,l t Po.c}:ing o.nd Supply Inclustries Limited which w;::s et privo.te bl:siness. The appellant denied o.lso writing exhibit P2(a) u.nd P2( b) ,. Eo nlso denied writing the agrecraent ( exhibit Pl) which he described o.G not o. lego.l document beco.use it was unstamped. The. learned trial I.hgis-ci'.:::tc fcu..'1.d 8.:J o. fact tho.t the respondent lent shs.13,000/- to the n1J~;,ollo.nt and that it was the appellant who wrote oxhibit:J Pl P2(n) and P2(b). He however found the interest.oof 10% to be too high and reduced it t.o 9% and with that he entered judgraent for the plaintiff in the swa of shs. 13,000/- plus ix1torest D,:nd cost. The appellant h2s o.p::_;(J::'.lcd ·c..c:-:-inst this judgo.ent and decree of the trial Wngistro.te. At the he:::ri.:..1c of tho nppea.l Ur. Hucco.dnra, learned counsel. for the o.ppellrn::.t ap)licd fer rmd vr:1s grnnt'ed leave to ndd additional grounds to his nonor{.1.ndu.::.i of o.::n~eo.l. His o.ddi tionnl grounds of appeal were tha.t the docw:1011t (cxhi;Jit Pl) was not stnr.1pod and therefore inndrai- ssible o.nd thc.t th0 rc,s;;-iom1cnt he.cl 110 locl<.s stnndi in this case. Arguing ...... . /2 2 the nppenl, I/Ir. T✓-Iucc::d:,n sc.id t11nt tho respondent should hr,ve brought the suit in tho n:.1ne oZ t:.-10 J~. C~ (Church) Po.rish because in his evidenu he clearly snid tha.t tho noney bolonced to the po.rish. Since he produ- ced no docuncmts before the court thnt he hnd the power o:i:' cltton1ey so that ho could sue on buh~>.lf oZ the parish, he bad no locus stnndi in the on tter nccoruing to the lenrned cou11s·e1. He submitted further thnt the whole cnuse of action wns misconceived. Concerning the docur.1ent purpo- rting to be the ni5I'eencmt Mr~ Mucco.do,n subnittod tho.t it w::ts unstaoped and ns such it wo.a not o..d;::issi:Jlc by virtue of section 46 of thG Stc.np Duty Act 1977. T11e docuncnt r:~,G still unstnnped to-do.te c:.nd it <lid not even ho.ve a signnturcd The o.c.,rreenent is donied by the o.pr,ellc.nt nr:d it wns not proved thnt he ho..d writte;.1 it. Even tho other chits (exhibHs P2(n) and P2(b) were denied by tho o.ppellnnt. There wo.s no proof ol tho handwriting on these docunGnts to be of the o.ppollnnt. L'.fr. Huccc.dcm concluded by saying that once these docunents o.re excluded, there is nothing to prove the loan nnd therefore the o.ppcc,l should be nllor!ed~ In reply, Hr,. Ifaule loo.n:od counsel for tl1e respondent cited the cnse of Sunder.ii Nnn.ji Ltd; v. lb.loo (1958) EA 7G2 in support of hi:::: o.rgunont that the unstanped docvnent rit~s 1,;ropcrly c.duitted hore. Ho su'Jnitted further that in the spirit oi' Su11<10rji 1G cc:,sc the l'OS:i_)o:1do:nt should not be penalized sinply becnuse t:10 docu:.1Cmt wns unstnraped nnd tho.t tho r,2tJpo11dont could not have sto.npcd '!il1is {:ocw:.:cn-c ,.-ii t!1out the lenve of the court .• With regard to the question of the identity of the owner of the noney, Mr. Haule subnitted that the -respondent wns ::1. pried wl10 \,;::_r:.; the principal officer of tho chur~h,. Eo c,lso f.Jo.j_d t~~o.t t:10 g,Io3tion of locus standi should have been rnised nt the hoc.rine; of tho co.so o.nd not on o.ppet!.l. He also submitted thnt :::;ince the respondent c.s principnl officer could according to long standing prnctice ,1onl Hi th the Doney as he ,7ished, t:10 question of power of attorney c1id no-;; o.:::-iso~ He v1Cmt on to s.:121 th:ct the co.so was proved on the bo.lo.nce of the probt,bilities by 0xhibit l'l ::.md P2(o.) nnc1 P2(b), when these docunents nre to.l~cn tocetl-:cr with tho orc.l evidence. He further agreed with the wo.y the trinl !.ir:::.;i::::tn.,te dee.it v1ith tho e:dlibi trJ. Ho o.skod the appeal to be disr.rissed. In o. short reply, I.:r,. Euccc.dnn subni t-;;d tl1c-. t since the uoney did _not belong to the responde11t he could not be cl:.:i.ssi::iod ~--.s o. recognized ngent of the Puri.sh F1ithi11 Order 3 :Jule 1 (2) of tho Civil rrocedure Code. He further suboitted that the 1uostion of -,-,Tons co.use of ::,.ction wo.s obvious on the fa.cc of the rccorcl :mcl that the court could not c:lloi-.' it to re:raain so, HG o.lso subni ttoc1 th:::t it WQ.S for the plaintiff to prove the existence of the tlocw~ont ns envisnged by section 110 of the Evidence Act nnd that· a court could not rely on a <locunen~ which wns denied by the other pnrty. 3/...... - 3 .. I propose to ue0.l ·,ith each point' roised in thir.;;_ appeal separa- tely. I w:ill - t .::.:ie outset deal first with the point ..of locus standi. ,. ' ·' I can see no force in thi:.S argument because the simple answer to it is that in any case the resp'ondent was a speci&.l owner of the shs.13000/= even if the money did not he~a~t to hjc~ In any case this wls not an issue before the tri~l court ~Ld it wc~le te ratter late now to bring it on appeal,., wi.th rei;arei to the 1:.,.crnis2ibility cf c·xn.+1 which· was the agree- ment for the loan, the authority cited by i•:r~ ·ii_uule (.Sunder,;j-i .Na.n~i Lt,,d v. Mohamedali Kassa~:1)2,2_) clear:y E.Jhows thut the respondent should have been given an op:Jortunit~ to Pf;Y, L.2 :cec;uicite stamp duty and penalty. .Since in -~.his ap:9e,.. l the rvlin 1 ; •.)f the trial court -was only in the judgment and. ti.1e rul:~r!g was :ha~ no stc:..:11;, duty' was required, the respondent had :10 ~pportu.nity to pay the stamp duty and the penalty. There is no doubt but ~hat the ruling of the trial court on the admissibility of the agreement (~xjaP~) was erroneous because section 46 of' the Stemp vuty HCt 1972 ci0arly stipulates that under no circum~ stances may an unstamped o.ocument \'Jhich requires to be stamped he ad- missible in evi~enaw~ ft~s agreement being an agreement in respect of a loan w..... s no doubt liable to ~tamp duty in terms of section 42 of the Act~ Going by the holding in Sunderji 1 s case cited above what is to be done now is to allow the :r'9c")C''lc'•~"!t j ... lie t'•J wishes to pay the stamp duty plus. the pen1:.lty so tnc.,.t o:::::;:c.i,·:·.t ~ 1 r.:ay form rart of the evidence. Once that is done then the ~~cord ~holil~ be brou6ht ~c.,.ck to this Court to determine whether en the st:r<:J:.1gL; of t.h&t document. together with-the rest of the evicter~ce on rE;corc:. or;_l aui d.ocume:t1tary the learned trial Magistrate was correct in c0minc to conclusion to whi~h he cam~. Th~re cannot be any question o~ sec~inc back th~ case file to the District Court as wus acne in· .St.nderji I s co;se, b2c.::~use in t·his case· the triai Ma~istrate acted on exhibit P1 whereas in s~nderji 1 ~ case the trial Magistrate a.id not act on the U.!lstc..•.:pi:•~ ~locum.,nt &nd the file. was remit- ted back to him to consicwr t:." evicie~:c..: r..,f tl1b' c.nsto.mpe·d document which was made admissible by the payment of tl~ stamp duty by the party who was relying on it. The Megistrar.qf the uigh Co~rt is to assess the amount of ~tamp duty payable on e~~i1it P1 togather with the ·penalty due. It is ordered &c~oruingly and order as to costs to await final determ~nation of the appeal. A. B1-.HA111· JU:t;<.;_t; _11/4/85 ••••••• /'+ - 4 - Court: Judgment ~~livered in C0urt 0u 11/4/85 i~ presence -of Dar es .Salaam 11/4/850 .. •'