Namusisi and Others v Ntabazi (Civil Suit No. 887/88 Ruling) [1997] UGHC 20 (1 April 1997)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO. 887/88

and others PLAINTIFF VERSUS FRANCIS K. NTABAZI DEFENDANT KASIFA NAMUSISI

BEFORE:

..r

**C/**

## The Honourable Mr. Justice A. O. Ouma

## RULING

Mr. Mwesigwa Rukutana counsel for the plaintiffs raised objection examination in chief which is intended to contradict the evidence that his Act. that he and section 90 of the Evidence the late Sulaiti Jagwe signed Exhibits Pl and P2 . in exhibits Pl and P2 which are sales agreements and submitted •' ' - •• .......• \* - --------- evidence is inadmissible. He cited 'and relied dir He pointed out that DW4 admits to the evidence of the ' defendant*,* DW4 being adduced in his.

Counsel for the in the Court held that where a transaction has been' ; reduced to /• evidence can be produced to contradict it. share of A. held 95 in Baru which it was [1985] HCB 29 the form of a plaintiffs further cited and relied on Uganda.^ Case of Fenekasi Semakula Vs. E Mulondo that decision was followed in the case of Appeal where it was document either by consent or agreement no other of the parties, Counsel added that vs. Marita Ntarantambi and another that oral evidence should not be

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accepted to vary the terms of a written contract entered into $\frac{1}{2}$ willingly by the contracting parties. $m_{\ell} = \ell - \ell_{\ell-1}$

In reply to the objection $\dot{Mr}\,.$ Ayigihugu 1st counsel for the defendant submitted that the objection is misconceived for the $\frac{1}{2}$ reasons that;

$\cdots$

$(i)$

at the time the objection was raised, the defendant DW4 was not giving any evidence intending to vary the terms of Exh. P2. He was giving evidence as to its contents;

$(iii)$ the evidence which is already on the record cannot be attacked at this stage;

ricounsel for the plaintiffer most serious misconception is his submission that the counter claim should be dismissed of struck out. There 11: is a specific provision in the Civil Procedure Rules which must be applied to strike out a pleading. It is order 6 rules 29 and 30 of the $\frac{1}{2}$ <pre>Civil Procedure Rules;</pre>

whilst it is true that where there is a document $(iv)$ in writing oral evidence is inadmissible for the purpose of varying its written terms however, counsel submitted that counsel for the plaintiffs misquoted the section. The relevant section is 91 of the Evidence Act, to which the counsel for the plaintiffs ought to have referred court to the exceptions thereto. Counsel for the: defendant cited and relied on what he termed exceptions (a), (b) and (c) to section 91 of the Evidence Act.

I agree with counsel for the plaintiffs that the applicable section to this matter is section 90 and not 91 of the Evidence Act. For clarity of this ruling section 90 provides;

> "When the terms of a contract or of a grant of property, have disposition of property, have been property, the form of a document, and in all cases in reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to $\frac{1}{2}$ $... / 3$

the form of a document, no evidence, save as mentioned in section 78, shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained."

In my view, for emphasis, in view of the apparent disregard of my ruling dated 5/2/1997, the operative part of section 90 is;

".... no evidence, save as mentioned in section 78 of the Evidence Act shall be given in proof of the terms Finally of such matter except the document property or of such matter except the document itself; or secondary evidence of its contents in cases in which it is admissible."

This is what in my view, was appropriately stated in Civil Appeal No. 4 of 1982, by the Court of Appeal in Fenekasi Semakula Vs. E. S. M. S. Mulondo [1985] HCB 29 at page 30 as;

> "the written instrument would be regarded as the appropriate and only evidence of the terms of their agreement and no other evidence of the transaction could be substituted for that. For that so long as. the writing existed. No extrinsic evidence was therefore admissible in substitution of the written document.

Further this is what is emphasised by Ratanlal and Dhirijlal $\mathbb{L}_{\mathbb{R},\mathbb{R}}$ Thkore, in their Law of Evidence, 13th Edititon at page 197,

that;

$\mathcal{N}_{\mathcal{M}} = \mathcal{J}^{\mathcal{A}} \mathcal{N}^{\mathcal{A}} \mathcal{N}^{\mathcal{A}}$

"When a transaction has been reduced into writing either by requirement of law or agreement of the parties, the writing becomes the exclusive memorial parties, memorial thereof and no extrinsic evidence is admissible either the prove independently the transaction or to contradict the terms, thought the contents of such document may be proved either by primary or secondary evidence."

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$\ensuremath{\mathrm{I}}$ do not agree with the reason by the learned counsel for the defendant that at the time learned counsel for the plaintiffs $% \left\vert \mathbf{r}\right\rangle$ raised the objection the defendant (DW4) was not giving any $% \left( \mathcal{L}\right)$ evidence intending to vary the terms of Exh. P2. Whilst it is correct to say that at that time the defendant $(DW4)$ in his resumed examination in chief had testified that Exh. P2, bears his signature, the signature of the late Sulaiti Jagwe as well as the signature of the late Advocate Musaala; that Exh. P2 shows that ti is a sale agreement in respect of a house in Block 16 plot 655; that it shows that he $(DW4)$ sold and that the late Sulaiti Jagwe bought the house; that it shows Shs. 940,000/= as the purchase price; it is also correct or true to say that the defendant testified that the late Sulaiti Jagwa was supposed to pay him in instalments. The first instalment was to be in the sum of Shs. $560,000/$ =

It was at that juncture or point in time that the objection to that oral piece of evidence was raised, since it was transparently clear that that the oral piece of evidence was intended to contradict the evidence in Exh. P2, which reads;

"PAYMENT:

CONSIDERATION:

PAYMENT:

Shs 940,000/= (Shillings Nine Hundred and Forty Thousand);

(a) Shs. 560,000/= (Shillings) *Five* Hundred and Sixty Thousand) paid by washwcheque No. 458355 dated 5th May, the date of signing 1981, this Agreement of Sale."

$\mathcal{A}$ , I agree with the argument by the learned counsel for the plaintiffs that that piece of oral evidence clearly demonstrates

evidence intending to vary the terms of Exh. P2. Whilst it is correct to say that at that time the defendant $(DW4)$ in his resumed examination in chief had testified that Exh. P2, bears his signature, the signature of the late Sulaiti Jagwe as well as the signature of the late Advocate Musaala; that Exh. P2 shows that ti is a sale agreement in respect of a house in Block 16 plot 655; that it shows that he $(DW4)$ sold and that the late Sulaiti Jagwe bought the house; that it shows Shs. 940,000/= as the purchase price; it is also correct or true to say that the defendant testified that the late Sulaiti Jagwa was supposed to pay him in instalments. The first instalment was to be in the sum of Shs. $560,000/=$ : : .

"PAYMENT:

CONSIDERATION:

PAYMENT:

Shs 940,000/= (Shillings Nine Hundred and Forty Thousand); (a) Shs. $560,000/=$ (Shillings Five Hundred and Sixty Thousand) paid by

washmcheque No. 458355 dated 5th May, the date of signing this 1981, Agreement of Sale."

$\mathbf{A}$ . I agree with the argument by the learned counsel for the plaintiffs that piece of oral evidence clearly demonstrates

section 90 of the Evidence Act was intended to remedy. the evil

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I would add that transaction which is reduced into written by the parties transaction was/is and at another Kelu Nair advantage (see JLX-93.3.] 35 BOM L. R 8 07, a party to it was/is invalid for the purpose of time say, securing some further willingly cannot say at one time that the valid as appears to be the case in Exh. P2, Ambu Nair vs .

learned 1st counsel for the defendant in answer to the objection. **©** I find that he admitted in his fourth reason that it is true in inadmissible for the purposes of varying its written terms. I the \* is I find the rest inadmissible. exceptions irrelevant to the of the reasons I find the argument by counsel for obj ection. that a this stage. Dismissal or claim of a counter otherwise the record evidence sufficient evidence to support its there is finding dismissal In the same way finding that the evidence of DW4, regarding . the effect of having the counter Exhibits dismissed. T , *c '}■'* . i ;• I have carefully considered the reasons''arid ;or: arguments :by the and or arguments or as a a document oral piece of evidence, s^^^matter^of-^this-.. ruling is intended to do. It It is expunged from the evidence. that or otherwise. whole on that where there is the plaintiff Pl and P2, will have irrelevant at claim can only properly occur, after the is analyzed and there \*is.; a in writing oral evidence

-k **A ' '** the objection is upheld.

Thinken in the presence of Council for parties and quinties to for Apamma Jurdje. 1/4/1977.

Colorates

a parties

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