Namusisi and Others v Ntabazi (Civil Suit No. 887 of 1988 - RULING -1) [1997] UGHC 21 (5 February 1997)

$11 - 5 - 5/2/1947$ .

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA.

CIVIL SUIT NO. 887 OF 1988.

KASIFA NAMUSISI AND OTHERS ::::::::::::::::::::: PLAINTIFFS.

**VERSUS** FRANCIS K. NTABAZI :::::::::::::::::::::::::::::......... BEFORE: The Hon. Mr. Justice A. O. Ouma.

RULING:

In the course of examination in Chief of Mr. Henry Kala, DW3, and Advocate of M/S Kala and Co. Advocates, Mr. Ayigihugu 1st Counsel for the Defendant applied to tender in evidence an undated Agreement, described at DW ₹ first by DWFs as a Sale Agreement, between the Administrators of the Estate of the late Sulaiti Jagwe as the vendors and one Samuel Ntege as the as the purchaser, while at the same time the so called Sale Agreement was titled Tenancy Agreement, which DW3 purported to vary by oral evidence to read as Sale Agreement. The question is whether oral evidence can contradict, or vary the Title of a document or its written contents. As if that was not sufficient confusion, the character of the Sale Agreement sought to be exhibited in evidence, further changed when DW3 told Court that when he asked Ntege who had instructed him to draw the Sale Agreement, what he was buying, Ntege told him that he was not buying but repaying the loan money, that 30,000,000/300/=; that he had already repaid them Shs.20,000,000/= and that the balance was to be repaid according to the terms to be set out in this Agreement and further when DW3 asked Ntege why he wanted to call the Agreement, Sale Agreement DW3 told Court that Ntege told him that that was their arrangement. The term "their" in the context... it was used is vague. It is not certain whether it refers to arrangement by both parties or arrangement by the Administrators of the Estate of the late Sulaiti Jagwe as a party to the so called Sale Agreeement.

Suffice it thereof; and purported to do in this present case, the terms, though the (see The Law of Evidence by Ratanlal and Dhirjlal or to contradict<sup>J</sup> : is admissible either to prove independently 7 , state that it is settled principle of law that when ? »•.\*'' 't<sup>L</sup> • <sup>S</sup>\* keen'reduced into writing, either by requirement of law, t^le Parties, the writing becomes, the exclusive memorial Thkore, 13th Edition, at 197). no extrinsic evidence the transaction as DW3 contents of such document may be proved either by primary. or secondary evidence,

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(See paragraph 4 of the Further amended plaint dated 8.4.1993). Clearly' i®fj,R^no.:r.releyancy7<between'. the land in respect of which the Sale Agreement is sought 'to be put in evidence and the lands which are the subject matter of this suit. <sup>I</sup> agree with the argument by Counsel for the plaintiffs that called Sale Agreement is irrelevant to the framed and. agreed issues the so \*• rv. before,Court, in this present suit. I observe that it is in respect of the lands comprised in Kyadondo Block 11 bowa',"'whereas, the . Si! j'HVrisnlliI h . S' suit are comprised in Kibuga Block <sup>16</sup> plots? 654,: tfSS?and :6.92'<sup>r</sup> at :Ndeeba I have perused the contents of the so called undated Sale Agreement,

1st ti -tut in Court for identification. the time it was of a an at the time document irrelevant document is a whether the document by a party o<sup>f</sup> its acceptance and omission by his or her Counsel to object to it for identification de- not per se.render /' relevant, more so^ when the nature of the document is -to tenancy agreement or a repayment of loan at estopped from objecting <sup>j</sup> Kv hi'<sup>q</sup> client, adding that if Counsel had any objection to it, <ir. UJ.it> was produced by nis cxx \_ accepted in Court for identification. In my view, production Counsel for the defendant argued^the Counsel for the plaintiff is to the admissibility of the Sale Agreement on the

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agreement as the document sought to be put in evidence is characterised by the of DW3: Nor do I, in my view, consider that Sections $8(2)$ and 9 of the Evidence Act are relevant to this matter. There is no mention in the document of the fact that the property of the defendant was brought but it was a security.

Consequently objection is sustained and I decline to admit the document in evidence for the reasons stated in this Ruling.

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## Court:

Ruling is delivered in the presence of Mr. Kiapi holding brief for Counsel for the plaintiffs and in the presence of Mr. Ayigihugu 1st Counsel for the defendant, and in the presence of the 1st plaintiff and the defendant and of Mr. Kamyuka Court Clerk.

JUDGE. $5/2/1997$ .