Bakharesha v Bakharesha (Civil Appeal No. 44 of 1955) [1950] EACA 55 (1 January 1950)

### H. M. COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR NEWNHAM WORLEY (President), BACON, Justice of Appeal and WINDHAM, C. J. (Zanzibar)

### SALIM BIN AWADH BIN MBARUK BAKHARESHA, Appellant (Original 1st Defendant)

#### $\mathbf{v}$

## RAMADHAN BIN AWADH BIN MBARUK BAKHARESHA, Respondent (Original Plaintiff)

### Civil Appeal No. 44 of 1955

(Appeal from the decision of H. B. M. High Court of Zanzibar, Robinson, C. J.)

Stamp Duty-Document insufficiently stamped-Admissibility-Stamp Duty Decree (No. 5 of 1940) sections 39, proviso (a), 64—Eastern African Court of Appeal Order in Council, 1950, section 16.

In a suit for partition of immovable property, a written agreement was admitted in evidence although it was insufficiently stamped. No objection was taken at the trial by either of the parties or by the Court. An order for specific performance was made.

Held (22-12-55).—(1) The justice of the matter and the protection of the revenue required the Court under section 16 of the Eastern African Court of Appeal Order in Council, 1950, to exercise the power which the trial Court could have exercised under section 39 of the Stamp Duty Decree to require payment of the balance of the duty and the penalty.

(2) Section 64 of the Stamp Duty Decree contemplates cases where the Court which admitted the document in evidence has been asked to rule or has on its own motion ruled on the sufficiency of or necessity for stamps, and was thus not applicable to the instant appeal.

After payment of the balance of duty payable and the penalty, the appeal to stand dismissed with costs.

No cases.

**Balsara** for appellant.

P. S. Talati for respondent.

JUDGMENT (prepared by Worley, President).—This is an appeal from $\alpha$ judgment and decree of Her Britannic Majesty's High Court at Zanzibar in a suit in which the present appellant was the first defendant and the present respondent the plaintiff. One Mbaruk was joined in the suit as second defendant but he is not a party to this appeal.

Appellant, respondent and Mbaruk are all brothers and the suit was brought to enforce an agreement made between them on 2nd November, 1951, for the partition of certain properties in Zanzibar held by them as tenants in common. The agreement in question was produced at the trial by the plaintiff-respondent and admitted in evidence without objection. It is stamped with a Sh. 1 stamp. The High Court was satisfied on this and other evidence that the plaintiff was entitled to the relief of specific performance claimed and decreed the suit accordingly.

The memorandum of appeal sets out several grounds, but the only one argued by Mr. Balsara was that the agreement (exhibit B) is insufficiently stamped and ought not to have been admitted in evidence or acted upon and that the decree passed was consequently invalid: section 39 of the Stamp Duty Decree

(No. 5 of 1940), Mr. Balsara conceded that, had this objection been made at the trial, the plaintiff-respondent would have had the benefit of proviso $(a)$ to section 39, that is to say, that on payment of the amount required to make up the proper duty chargeable plus the statutory penalty prescribed, the document would be admissible. He contended, however, that although it was not too late for him to take his objection for the first time on appeal, it was too late for the respondent to have the benefit of the proviso. Such an argument, being against all good sense, conscience and justice, is not likely to recommend itself to any Court unless supported by strong authority. It is hardly necessary to say that such authority is lacking.

During the argument before us there was considerable discussion on section 64 of the Decree which provides for the revision in certain circumstances by an appellate Court of orders of lower Courts regarding stamp duty on instruments. We are satisfied, however, that section 64 has no application to the instant case, but contemplates cases where the Court which admitted the instrument in evidence has been asked to rule or has of its own motion ruled on the sufficiency of or necessity for stamps.

Other matters were also discussed in the course of the argument, and in particular the question whether the appellant should be allowed to take a formal objection at this stage which he had not taken at the trial, but we consider it unnecessary to rule on this and other points discussed.

Mr. Talati for the respondent conceded that the agreement (exhibit B) is insufficiently stamped and that it should have been stamped under item 43 of the First Schedule to the Stamp Duty Decree as an Instrument of Partition with the *ad valorem* duty there prescribed.

Section 16 of the Eastern African Court of Appeal Order in Council, 1950. which confers jurisdiction upon this Court to hear appeals from the constituent territories, also confers upon us for all purposes of and incidental to the hearing and determination of any appeal "the power, authority and jurisdiction vested in the Court from which the appeal is brought".

It is clear, therefore, that the justice of this matter and the protection of the revenue require us to exercise the power which the High Court would have exercised under proviso (a) to section 39 had its attention been drawn to the stamp deficiency and we propose so to do.

Accordingly we order that, on counsel for the respondent undertaking to pay to the Revenue Authority the difference between the duty properly payable under article 43 of the First Schedule to the Stamp Duty Decree (No. 5 of 1940) and the sum of Sh. 1, together with the statutory penalty imposed under proviso $(a)$ to section 39 of the same Decree, in respect of the document admitted at the trial as exhibit B, then on payment of such duty and penalty the appeal shall stand dismissed with costs, but unless and until such undertaking is given and implemented the appeal shall stand adjourned for further consideration.