Case No.:

AC.REV-97-1959

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Evidence—Original Document, Rule—Secondary admissible after loss and proper search

In proving the terms of a writing the original writing must be produced unless it is lost and a proper search has been made considering the nature and value of the document.

Judgment

(COURT OF APPEAL)*

ABDALLA TAYFOUR v. EL HASSAHEISA CO-OPERATIVE SOCIETY

AC.REV-97-1959

Advocates: Ahmed Gum………. for defendant-applicant

                      Hassan Kohil…….. for plaintiff-respondent

M. A. Abu Rannat C.J. June 20, 1959:—The plaintiffs are a co-operative society at Hassaheisa. The first defendant was employed by them as a shopkeeper. In 1954 it was discovered that he committed criminal breach of trust in respect of £S.78o.431. He was convicted by a Major Court, imprisoned for six months, and fined LS.8oo; and there was an order that if the fine was collected, part of it be paid to the plaintiffs.

The plaintiffs brought an action against the first defendant for the recovery of the £S.780.43 and joined the second defendant as a guarantor for the payment of this sum. There is no difficulty about the liability of the first defendant as it has been proved that the amount converted by him was £S.78o and he did not appeal against the decree of the District Judge ordering him to pay this amount and costs.

The real issue in the case is whether the second defendant had guaranteed the payment of this amount. The District Judge who was supported by the judge of the High Court on revision found that the second defendant was habit as a guarantor for the payment of this amount.

This application is by the second defendant Abdulla Tayfour contending that both the District Judge and Judge of the High Court were wrong in

Court: M. A. Abu Ronnat CJ.

finding that he had guaranteed the payment of this amount, and that the judgment of the District Judge was against the recognised rules of evidence.

The record shows’ that the document containing the guarantee was lost, and that its loss was satisfactorily proved by the evidence of the Court Clerk. After the loss was proved the court is entitled to admit secondary evidence; this is in accordance with rules of evidence and the principle is recognised in Brewster v. Sewell ( 1820) 3B.& Ald. 296, where it is stated “secondary evidence of a document is admissible when the original is lost or destroyed, but it must be shown that proper search has been made for it. What is proper search depends on the nature and value of the document. More careful search will be required for a valuable than for a useless document.” Thorough search for this document was made but it was found missing from the record of the criminal court

The court there accepted oral evidence as one form of the secondary evidence. The plaintiffs proved the existence and execution of the guarantee identical with the form of guarantee exhibited as P. and they further proved that the second defendant was the person who really made that guarantee.

The case was carefully heard by the District Judge and I have no doubt in my mind that the second defendant was the person who made the guarantee for the payment of the amount claimed.

Application for revision is summarily dismissed.