Ndagwase v. Maganya (PC) Civ. App. 109-M-71; 11/9/71; Kisanga J.

Ndagwase v. Maganya (PC) Civ. App. 109-M-71; 11/9/71; Kisanga J.

The appellant brought this action in his capacity as his wife’s personal representative against the respondent for the recovery of a debt of Shs. 700/- which he alleges that his wife gave to the respondent following misunderstandings between the. The money he claimed was handed over to the respondent for safe custody on the understanding that after she obtained a divorce from the appellant she would take the money back. The case depended entirely on the evidence of his daughter, aged about 14 years, who claimed to have eye-witnessed the handing over of the money. Her evidence was accepted by the trial magistrate who held in favour of the appellant. The witness did not give evidence on affirmation but the trial judge allowed the evidence because he was satisfied that she was a person of tender years. The district magistrate held that the taking of the child’s evidence was an irregularity. He further held that the court could not base its findings on the evidence without corroboration. He, therefore, allowed the appeal.

Held: (1) [T]he evidence of this witness was properly received in accordance with the provisions of paragraph 46(2) of the Magistrates’ Courts (Civil Procedure in Primary Courts) Rules, G. H. No. 310 of 1964 published under the Magistrates’ Courts Act (Cap. 537). That sub-paragraph provides, “The

evidence of each witness shall be given on affirmation save in the case of a child of tender years, who in the opinion of the Court, does not understand the nature of the affirmation.” Having regard to the provisions of this sub-paragraph, therefore, I think that the evidence of this child was properly received without affirmation.” (2) “Rule 15 of G. N. No. 22 of 1964 – The Magistrates’ Courts (Rules of evidence in Primary Courts) Regulations published under the Magistrates’ Courts Act (Cap. 537) provides, “In both criminal and civil cases the evidence of young children must be supported by other evidence.” The learned district magistrate therefore properly directed himself in holding that the evidence ……………..uncorroborated as it was, could not form the basis for awarding the claim. The learned district magistrate also took the view that not much weight may be attached to the evidence …….. because the witness was the appellant’s daughter who could have been influenced in order to give false account in favour of her father. To my mind the possibility of the witness testifying falsely in favour of her father could not be ruled out completely especially considering that the witness is not only dependent on the appellant but is also a person of tender years.” (3) Appeal dismissed.