Case No.:

PC-REV (Ed Darner)

Court:

The Major Court

Issue No.:

1962

Principles

·    Evidence—Commission to another court—Civil Justice Ordinance, s. 105judge may ‘not examine himself under oath—Distinction from affidavit

A commission for examination was issued to the Resident Magistrate. Singa to examine himself as a witness. He put his answers in writing in his own hand after he had made solemn affirmation before himself. Held: This evidence was received by the District Judge who issued the commission.
Held: The evidence was inadmissible because a court may not examine itself as a witness under Civil Justice Ordinance. s. 105 a person cannot be examined on oath before himself.

Judgment

(PROVINCE COURT)

EL BEDAWI OSMAN v. HEIRS OF HASSAN MOHAMED HAM ID

PC-REV (Ed Darner)

Osman El Tayeb P1. January 20, 1957,is an application for revision from decree of District Judge, Shendi, dated June 12, 1956, in his CS-i5i-i955. The case is in respect of 16 uds in share No. 7 m sagia 33. Sayal Sirag of Shendi District, which plaintiff-applicant claims by pre scription. After hearing the evidence on both sides the learned District Judge dismissed the claim.

It is found and admitted that applicant had been in possession of this plot for some long years (since 1937 at least) until the dispute arose in 1954. The grounds of dismissal were that plaintiff was holding for and on behalf of defendants, that he had paid rent or profits to some of them and that he had been acknowledging the title of defendants. This may be true, but I do not want to go into details of the evidence because of one essential point in the evidence on grounds of which I have decided to send back this case for retrial.

That point concerns the admissibility of the written statement of Sayed Abdel Rahim Idris, Resident Magistrate, Singa. He was named by defendants as one of their witnesses. The court decided to take his evidence on commission. The letter of questionnaire was prepared and sent to him. He put his answer in writing in his own hand and noted at the bottom that he had made a solemn affirmation as to the truth as far as he could recollect. This statement was sent, and the court filed it with the pro ceedings and accepted it in evidence.

This statement is not evidence or it is inadmissible evidence.

Civil Justice Ordinance, s. 105 (i) provides: “A commission for the examination of any person may be issued to any court having jurisdiction in the place in which the person to be examined resides, It means that the person required to be examined shall appear before such court  to which the commission was sent and give evidence on oath. In my opinion if it was done in any way other than this, it should not be accepted as evidence. A person cannot be examined on oath before himself. Evidence on commission is different from an affidavit where a person authorized to administer oaths may do so to himself. It is to be noted that the statement sent by the witness in this case was not on oath.

Further, the learned District Judge placed great reliance on this state ment, that for the purpose of the decision of the revision, 1 fined it impossible to sever it from the rest of the evidence and then form an opinion on the case. It is worth remarking that evidence on commission at which the opposite party was not given a chance to cross-examine, should not generally be given much weight.

For these reasons I set aside the decree, dated June 12, t and semi the case back for retrial.