Case No.:

AC-APP-7-1957

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Civil Procedure—Civil Justice Ordinance. Order VII, r. 3—Directed verdict at end of plaintiff’s case

Under Civil Justice Ordinance, Order VII, r. 3, a court may give a directed verdict for the defendant at the end of plaintiff’s case, and before the defendant has given any evidence

Judgment

(COURT OF APPEAL)*

ARISTIDIS KARTOULIS v. IMPRESSA ALTIENER COSTIRUZIONI

AC-APP-7-1957

.

Advocate: J. E. Candioglou ……… for the applicant

B. Awadalla j. August 20, 1957:- this is an appeal on a point of law in which the learned advocate for the appellant (plaintiff in the suit) raises the very interesting argument whether a judge in the Sudan can dismiss a case at the close of the plaintiff’s evidence and without calling upon the defendant to prove his defence.

The case arose out of an alleged conversion of quarried stone— property of applicant—and which the respondent misappropriated to his own use. From his appeal on the above-mention point of law, it is clear that the applicant’s learned advocate is convinced of applicant’s

• Court: M. A. Abu Rannat C and B. Awadalla J.

inability to adduce sufficient evidence in proof of the allegation; never theless he is now questioning the propriety of a decree dismissing the case before calling upon the defence to give evidence. The learned advocate is relying on Civil Justice Ordinance, Order VII, r.3 . But to my mind he is quite wrong in his interpretation of the said rule. This rule postulates two things before imposing on the defendant the obligation of proof. Those two things are:

(a) Statement of a case by plaintiff ;

(b) Evidence in support of those issues he is hound to prove.

It is then and only then that paragraph (2) of the said rule comes into play. The word then in that paragraph is very material. It is the axis on which the rule revolves.

In his case the onus of proof on all the issues was on the plaintiff and it is upon him to discharge that onus, i.e.. “put the court in possession of legal and satisfactory evidence and it will not suffice to point to matters of suspicion or even to plausible conjecture.” Ratanlal, Evidence 201 (12th ed., 1953). In other words, paragraph (2) simply’ provides for a shifting of the onus when the party who is entitled to begin makes a prima facie case. It does not impose an obligatory and sequential course of action. It gives the court the power which in England enables a judge to withdraw a case from the jury and to direct judgment to be entered for the defendant without calling upon him to prove anything. English law knows nothing of the Sharia evidentiary rule that “Proof lies on the plaintiff and on the defendant the oath.”

The learned advocate’s contention if acceded to will lead to a violation of that golden rule that no person can he called upon to prove the negative of an allegation, i.e., in this case “that the respondent did not misappropriate the stone quarried by applicant.” Ratanlal, Evidence 199 (12th ed., I953 says “The party on whom the onus of proof lies must— in order to succeed—establish a prima fade case. He cannot oh failure to do so, take advantage of the weakness of his adversary’s case. He must succeed by the strength of his own right and the clearness of his own proof".

If the learned advocate feels he can only complete his case by calling the respondent as his own witness, he could have done so, but obviously he did not want to adopt that course, for what he wants is a “cross- examination” which he would not get easily if he adopts that course. The learned judge was quite right in dismissing the actionو

Therefore, I advise that this appeal is summarily dismissed.

M. A. Abu Rannat C.J. August 20, 1957:—I agree. Appeal is hopeless and it is hereby summarily dismissed.