Civil Procedure-Objections-Failure of party to object to trial procedure
adopted by trial judge

Civil Procedure-Testimony-Written statement by party=-Statement prepared
out of court and sworn to before judge-Objectionable procedure

Eyidence-i-Oral testimony. offered to contradict a written receipt-Admissability
1. Oral evidence may be used to contradict a written receipt unless the
receipt amounts to an estoppel.

2. Evidence of a witness or a party should be taken by the judge orally
and in open court as provided by section 77 of the Civil Justice Ordinance
1929. Allowing a party to file a prepared statement and then swear to its
trust is objectionable as it allows others to aid in preparation and robs the
testimony of spontaneity.

3. Where a party has failed to object at the trial to an improper
procedure adopted by the trial judge, and has availed himself of the same
procedure, there is no miscarriage of justice whiCh will prompt the appel-
late court to interfere.

Civil Justice Ordinance 1929, s. 77.

Appeal

December 15, 1937. Creed C.J.: The story told by the plaintiff
is as follows: Early in 1936 the Italian Government of Eritrea allowed
Sudanese merchants to import goods into Eritrea through the customs
post on the frontier at Garora. On or about March 18, ]936, the
plaintiff, who is the leading Indian merchant of Port Sudan, agreed
with the defendant to supply him with goods for sale in Eritrea, the
profits to be divided equally between them, and the plaintiff's share
of profits to be handed over to him together with the value of the
goods supplied. On March 21, 1936, goods as set out in the invoice,
the value of which was £E.I77 .600 m/rns, were delivered to the de-
fendant, who set off with one lorry for Eritrea via Tokar and Garora.
The intention of the parties was that further goods should be sent on
the same terms to the defendant by a lorry driver named Mahjoub
Taha. The plaintiff however found cause to doubt the trustworthiness
of the defendant, and instructed Mahjoub Taha not to hand over the
further goods to the defendant.

* Court: Creed C.J., Bennett 1. and Cumings DJ.

The plaintiff claims the value of the goods, and also claims a
sum of £ E.34, which he alleges that he paid in cash to the defendant
at the time of the delivery of the goods to cover customs dues and
other expenses in connection with the goods.

The defendant's story is tbat the goods delivered on March 21
were paid for, and produces a receipt for the value of the goods. The
defendant· denies that £ E.34 were paid to him for the customs dues
and incidental expenses incurred in the transport of these goods etc.
The defendant alleges that, after these goods bad been delivered and
paid for, an agreement was made between himself and the plaintiff
on March 21, 1936, under which further goods of no fixed amount were
to be delivered to him by the plaintiff through Mahjoub Taha for sale
in Eritrea. He states that no goods were in fact delivered under this
alleged agreement of March 21. He has made no counterclaim in this
regard.

The plaintiff admits that the receipt was signed by a partner in
his firm, but states that it is a purely fictitious receipt, which was given
to the defendant because it was necessary for an invoice to be pro-
duced to the Italian customs authorities, and because he believed,
rightly or wrongly, that the Italian authorities insisted on evidence
being produced that the goods had been paid for. It appears from
the evidence that this belief, though common among the merchants of
Port Sudan, has no basis in fact. It should also be noted that the
receipt is not written on the ordinary invoice forms of the plaintiff's
business, but is written on the firm's note paper.

The learned jl Jge, after hearing the evidence and full considera-
tion, believed the story as told by the plaintiff and gave judgement
in his favour for the sum of £ E.l77 .600 m/ms, the value of the goods,
and £E.34 delive red in cash by the plaintiff to the defendant for cus-
toms dues etc., together with costs of the action.

The defend; nt has appealed. The written grounds of appeal are:
( 1) that t:le learned judge wrongly admitted oral evidence to
contradict and vary the contents of the receipt.

(2) that the learned judge wrongly accepted as evidence a
written statement by the plaintiff contrary to the provisions
of section 77 of the Civil Justice Ordinance.

(3) that the learned judge wrongly admitted Exhibits 'B' and
'C' as evidence.