BONIFACE JEREMIAH v STEPHEN LUKUMAY 1995 TLR 122 (HC)

 

BONIFACE JEREMIAH v STEPHEN LUKUMAY 1995 TLR 122 (HC)

Court High Court of Tanzania - Dodoma

Judge Mwalusanya J E

(DC) CiVil Appeal No 30 of 1994

February 24, 1995

Flynote

F Evidence - Admissibility - Unstamped document - Issue of admissibility of

unstamped document raised on appeal - Whether proper.

-Headnote

The respondent successfully sued the appellant in a District Court. The District G

Court vested a house which had been mortgaged as security for a money claim unto

the respondent. The mortgage deed was not stamped. Counsel for the appellant raised

the question of admissibility in evidence of the unstamped document on appeal.

Held: The question of admissibility of an unstamped document cannot be raised on

appeal but only at the trial.

Case Infomation

H Appeal dismissed.

Cases referred to:

(1) Sunderji Nanji v Bhaloo [1958] EA 762

Mbezi for the appellant.

Rweyongeza for the respondent. I

1995 TLR p123

MWALUSANYA J

[zJDz]Judgment

Mwalusanya J: A

The appellant Boniface s/o Jeremiah was successfully sued by the respondent Stephen

s/o Lakumay at Dodoma District Court in a claim of Shs 195,500/= less Shs 82,500/=

that has been paid. The District Court vested the house of appellant onto the

respondent's ownership as alternatively prayed by the respondent, and that happened

because appellant had mortgaged his house for the debt in B question. The appellant

through his advocate Mr Mbezi is appealing to this court. The appeal was resisted by

Mr Rweyongeza the respondent's counsel.

One of the points raised by Mr Mbezi in the Petition of Appeal is that the Trial C

Magistrate was wrong to hold that the appellant had pledged his house to the

respondent because that finding was based on inadmissible evidence that is the

unstamped document. It is true that the said document is unstamped as required by s

46(1) of the Stamp Duty Act No 20 of 1972. However this argument as D contended

by Mr Rweyongeza is of no avail, as that point should have been raised at the trial and

not on appeal. As held by this court in the case of Sunderji Nanji v Bhaloo (1) the

question of admissibility of an unstamped document cannot be raised on appeal but

only at the trial. This is so that the other party can be given an opportunity of paying

the requisite duty and thus making it admissible. E Therefore on the authority cited

above I find that the finding of the Trial Magistrate about the mortgage cannot be

impeached now.

The other point raised by the appellants' counsel is that the Trial Magistrate F

abused his discretion or rather did not exercise his discretion judiciously by vesting

the ownership onto the respondent instead of giving time to the appellant to pay the

decretal amount. It is true that in the plaint the respondent prayed judgment for Shs

123,500/= or in the alternative to vest the ownership of the defendant's house to him.

He said that to vest the ownership of the house for a debt of Shs 41,000/= was quite

unfair. However I note that the outstanding debt then was Shs 111,000/= G and not

Shs 41,000/= if you take into account a further loan of Shs 50,000/= and interest of Shs

20,000/= which has been mentioned by the Trial Magistrate in his judgment. He also

said that when the house was valued in July 1994 it was found to be worthy Shs 6.6

million. The judgment was passed on 1 December 1989. H

On his part counsel for the respondent Mr Rweyongeza submitted that the valuation

of the house was done in July 1994 while the suit was filed in 1986 and so it was done

some eight years later when the I

1995 TLR p124

MWALUSANYA J

A house had appreciated in value. He said that the value of that house in 1986 or

1989 was quite low. And he also said that as disclosed in the judgment of the trial

court the value of the time of oil which were Shs 1400/= per tin in 1985, was in 1989

Shs 4,500/= per tin. So he said that the debt was in 1989 over Shs 300,000/=. It was for

this reason that Mr Rweyongeza contended that the Trial B Magistrate exercised his

discretion judiciously.

I have seen the mortgage document dated 16 August 1985 which states that if the

appellant does not discharge the debt of Shs 123,500/= by 31 October 1985 then

respondent could have the house. For sure Shs 123,000/=in 1985 was a big sum. C

And due to inflation I am sure by 1989 when the case was decided, the value of the

money had been considerably devalued. Therefore the valuation of Shs 6.6 million

done in July 1994 is of not much relevancy about the value of the house as it was in

1985. The value of the house was definitely much less in 1985. Due to devaluation the

debt of Shs 123,500/= in 1985 could have gone up to Shs D 300,000/= by 1989. And

the value of the house in 1989 could have been in the region of Shs 300,000/=. Taking

into account the fact that the appellant was impecunious with no money to pay, I find

that the Trial Magistrate did exercise his E discretion judiciously. I am unable to say

that he abused his discretion.

Was this a foreclosure suit, so that the appellant should have been given time to pay

the debt before the house was vested onto the respondent? For a foreclosure suit

under Order 32 rule 2(c) of the Civil Procedure Code 1966, the defendant has F to be

given time of six months within which to pay, before the vesting order is granted.

However Mr Rweyongeza has contended that this was not a foreclosure suit but an

ordinary suit and so the above cited provision is not applicable. I agree with the

respondents' counsel that this was an ordinary suit for the recovery of G debt. And

so the above provision is not applicable.

In the event this appeal fails and it is dismissed with costs. Order accordingly. H

1995 TLR p125

A