(COURT OF APPEAL)

ALl BASAEED v. EL SURRA.BASAEED

AC-REV174-1957.

 Principles

·  Evidence—Character—Party to suit—Conduct in previous unrelated suit—Court may not comment adversely

A District Judge’s critical comment on applicant’s character, concerning his conduct in an unrelated suit, is ground for reversal.

Judgment

Babiker Awadalla 1. November ii. 1957:—This is an application against the decision of His Honour the Province Judge, Northern Province, dismissing summarily an application against the decision of the District

  Judge Shendi in CS-S7-1954 The said civil suit was started by Applicant  on January 30, 1954, for rectification of the register of the respondents share in Sagia 2 Abdotab comprising 1/1÷4  uds in performance of a written agreement Of sale dated September 25, 1950.

The parties to the suit are brother and sister, and applicant, the brother, contends that he had bought the land for a sum of £S.1900 and that he had since the date of sale been in possession of the land in dispute. Before  the District Court the respondent denied the sale and alleged that the applicant Was in posseston  as tenant. The written agreement purported to have been thumbed by the respondent and attested by two witnesses No issues were framed and the court proceeded to hear the two witnesses to the sale agreement. one of these gave viva voce evidence before the court in support of the claim and the evidence of the second was obtained on commission. All that this second witness said is: “I was a witness but I don’t remember any details about the transaction.” This commission evidence was received by the court on July 25, 1954. and on that same date the District Judge entered a note of the desirability of vetting the thumb print of respondent (defendant), and on August 28, 1954. the respondent for the first time appeared in person before the District Judge and denied having thumbed. The District Judge immediately proceeded to give judgment. In this judgment the District Judge did nothing but comment generally on the character of applicant and related an episode about his deceitful behaviour in another suit in which he was suing a brother and then proceeded to conclude that Exhibit A was the outcome of a similar contrivance, and to dismiss the claim with costs. Applicant appealed to the Province Judge and his application was summarily dismissed.

We consider that applicant’s case was not properly heard and determined in the court below. His behaviour in a previous suit between him and his brother cannot be brought in issue in these proceedings. He fails or succeeds on the evidence he lays before the court and the court cannot, by importing other standards than those which the law allows, avoid its duty to hear, test and weigh such evidence. On grounds of public policy and fairness, the law has always abstained from allowing the character of a party to be raked up by his adversary in court when such character is not in issue, and Fortiori it cannot allow the court itself to take the initiative and assail the character of a party appearing before it and on grounds entirely alien to the matter in controversy.

We are therefore of opinion that this application be allowed, and that the case be referred back to the District Court for rehearing. We think that the court would be assisted in its duty if issues are framed on lines similar to the following:

(a) Did the defendant execute Exhibit A? (Onus on plaintiff.)

 (b) If so, did she do so under a misapprehension as to its true nature? (Onus on defendant)

(c) If the answer to (b) is in the negative, is Exhibit A enforceable؟

M. 1. El  Nur, Acting C.J. November 11, 1957 :—I concur.