Shinyanga Emporium Ltd. v. Lugeleka Civ. App. 11-M-70; 17/12/70; Mnzavas Ag. J.

 

Shinyanga Emporium Ltd. v. Lugeleka Civ. App. 11-M-70; 17/12/70; Mnzavas Ag. J.        

            The appellant claimed the balance of an agreed and or reasonable price for a motor vehicle sold to the respondent. The trial magistrate accepted the respondent’s defence that the money had been paid. One of the conditions in the written agreement of the parties was that ownership of the vehicle was to be transferred to the   respondent only after the respondent had paid the whole of the agreed price. The appellant had in fact signed a form transferring ownership to the respondent before this suit. The appellant argued on appeal that this transfer of ownership a mere indulgence on his part an did not necessarily show that the agreed price had been paid by the respondent; that by an oral agreement, he agreed to ignore the provisions of the written agreement and to transfer ownership before payment of the whole of the agreed price for the ear; and that the trial magistrate had erred in holding that s.101 Evidence Act 1967 was applicable

            Held:  (1) “It is firmly established as a rule of law that parol evidence cannot be admitted to add to, vary or contradict a deed or other written document.  In support of this rule of law it was held in    JACOB Vs. BATAVIA & GENERAL PLANTATIONS TRUST – (1924) ICH page 287 that “parol evidence will not be admitted to prove that some particular term which had been verbally agreed upon had been omitted (by design or otherwise) from a written instrument constituting a valid and operative contract between the parties. Although this decision did not specifically deal with the facts similar to the present case, it nevertheless demonstrates the fact that any dispute arising from a written agreement must be looked at in the light of the contents of the agreement.”  (2)  The appellant seems to say, indeed this counsel argued, that by a different verbal understanding between the parties ownership of the car was transferred to the respondent although he had not paid the whole of the agreed price of the car. It is possible that this is what happened but there was no evidence to show, and the appellant failed to advance any reason, why the provisions of paragraph 5 of the written agreement were suddenly altered by mere oral agreement.” [Citing M.S. MNONYA Vs. ALI ABDULLA (1967) H.C.D. Case No. 379].  (3) “I agree with the learned counsel that there was misdirection by the learned resident magistrate in holding that the provisions of Section 101 of the Evidence Act 1967 applied in this case.  But with respect to the learned counsel I do     not agree that this misdirection does in any way invalidate the finding of the learned magistrate. He based his decision on the fact that the written agreement specifically stated that transfer of ownership of the car to the respondent was to be affected after the respondent had paid the agreed price of the car.  The respondent  having shown that ownership of the car had already been transferred in his name and the appellant having failed to show to the court any convincing reason why he decided to transfer ownership of the vehicle to the respondent, if, as alleged by the appellant, there was still Shs.2, 100/= unpaid, the court was entitled to infer that transfer of ownership of the car to the respondent meant that the respondent had already paid the whole price of the car to the appellant.” [Citing PASCAL JOSEPH MLAY v. ANTONY PHONES (1968) H.C.D. Case No. I].   (4) Appeal dismissed.