Bahati, J.: This is an appeal by Josephat Lugaimukamu against the judgment and decree of the District Court at Morogoro in which it was decided that the sum of shs.13,000/= plus costs and interest should be paid to the respondent, Father Canute Mzuwanda by the appellant.
G The facts deposed at the trial were that the appellant Josephat Lugaimukamu wanted a loan of shs.13,000/= from Father Mzuwanda the respondent and that Father Mzuwanda paid this sum of shs.13,000/= to the appellant and a document was prepared in which the appellant acknowledges receipt of shs.13,000/= for business purposes and that H every time the appellant makes a sale he would pay 10% interest. Then at the conclusion of the business transaction the shs.13,000/= was to be refunded to the respondent. This was on 1/6/77. According to the evidence of the respondent I this agreement meant that there was a promise to repay the loan plus 10% profit. On 15/2/78 the respondent wrote the appellant asking for repayment of the loan. The appellant replied that he
A would soon pay back. The replies of the appellant were in writing (exhibit P2(a) and P2b). Since no money was forthcoming from the appellant the respondent filed this suit.
The defence denied receipt of any loan. The appellant however said that he was a Director of Morogoro Salt Packing B and Supply Industries Limited which was a private business. The appellant denied also writing exhibit P2(a) and P2(b). He also denied writing the agreement (exhibit P1) which he described as not a legal document because it was unstamped.
The learned trial magistrate found as a fact that the respondent lent shs.13,000/= to the appellant and that it was the C appellant who wrote exhibits P1,P2(a) and P2(b). He however found the interest of 10% to be too high and reduced it to 9% and with that he entered judgment for the plaintiff in the sum of shs.13,000/= plus interest and cost.
D The appellant has appealed against this judgment and decree of the trial Magistrate. At the hearing of the appeal Mr. Muccadam, learned counsel for the appellant applied for, and was granted leave to add, additional grounds to his memorandum of appeal. His additional grounds of appeal were that the document (exhibit P1) was not stamped and E therefore inadmissible and that the respondent had no locus standi in this case. Arguing the appeal, Mr. Muccadam said that the respondent should have brought the suit in the name of the R.C. (Church) Parish because in his evidence he clearly said that the money belonged to the parish. Since he produced no documents before the court that he had the F power of attorney so that he could sue on behalf of the parish, he had no locus standi in the matter according to the learned-counsel. He submitted further that the whole course of action was misconceived. Concerning the document purporting to be the agreement Mr. Muccadam submitted that it was unstamped and as such it was not admissible by G virtue of section 46 of the Stamp Duty Act, 1977. The document was still unstamped to date and it did not even have a signature. The agreement is denied by the appellant and it was not proved that he had written it. Even the other chits (exhibits P2(a) and P2(b) were denied by the appellant. There was no proof of the handwriting on these documents to H be of the appellant. Mr. Muccadam concluded by saying that once these documents are excluded, there is nothing to prove the loan and therefore the appeal should be allowed.
With regard to the question of the identity of the owner of the money, Mr. Haule submitted that the respondent was a I priest who
A was the principal officer of the church. He also said that the question of locus standi should have been raised at the hearing of the case and not on appeal. He also submitted that since the respondent as principal officer could according to long standing practice deal with the money as he wished, the question of power of attorney did not arise. He went on to B say that the case was proved on the balance of the probabilities by exhibit P1 and P2(a) and P2(b), when these documents are taken together with the oral evidence. He further agreed with the way the trial magistrate dealt with the exhibits. He asked the appeal to be dismissed. In a short reply Mr. Muccadam submitted that since the money did not C belong to the respondent he could not be classified as a recognized agent of the Parish within Order 3 Rule (2) of the Civil Procedure Code. He further submitted that the question of wrong cause of action was obvious on the face of the record and that the court could not allow it to remain so. He also submitted that it was for the plaintiff to prove the D existence of the document as envisaged by s.110 of the Evidence Act and that a court could not rely on a document which was denied by the other party.
I propose to deal with each point raised in this appeal separately. I will at the outset deal first with the point of locus E standi. I can see no force in this argument because the simple answer to it is that in any case the respondent was a special owner of the shs.13,000/= even if the money did not belong to him. In any case this was not an issue before the trial court and it would be rather late now to bring it on appeal. F
With regard to the admissibility of exhibit PI which was the agreement for the loan, the authority cited by Mr. Haule Sunderji Nanji Ltd. v Mohamedali Kassam Bhaloo clearly shows that the respondent should have been given an G opportunity to pay the requisite stamp duty and penalty. Since in this appeal the ruling of the trial court was only in the judgment and the ruling was that no stamp duty was required, the respondent had no opportunity to pay the stamp duty and the penalty.
H There is no doubt but that the ruling by the trial court on the admissibility of the agreement (Exh.PI) was erroneous because section 46 of the Stamp Duty Act 1972 clearly stipulates that under no circumstances may an unstamped document which requires to be stamped be admissible in evidence. This agreement being an agreement in respect of a I loan was no doubt liable to stamp duty in terms of section 42 of the Act. Going by the holding in Sunderji's case cited above what is to be done now is to allow the respondent if he
A so wishes to pay the stamp duty plus the penalty so that exhibit PI may form part of the evidence. Once that is done then the record should be brought back to this Court to determine whether on the strength of that document together with the rest of the evidence on record oral and documentary the learned trial magistrate was correct in coming to conclusion C to which he came. There cannot be any question of sending back the case file to the District Court as was done in Sunderji's case, because in this case the trial magistrate acted on exhibit P1 whereas in Sunderji's case the trial Magistrate did not act on the unstamped document and the file was remitted back to him to consider the evidence of the unstamped document which was made admissible by the payment of the stamp duty by the party who was relying on it. The Registrar of the High Court is to assess the amount of stamp duty payable on exhibit P1 together with the penalty due.
D It is so ordered accordingly, and order as to costs to await final determination of the appeal.
Ordered accordingly,
F