(COURT OF APPEAL)*

ALl BASAEED vs. EL SURRA BASAEED

 (AC/REV/1 74/1957)

Revision.

Principles

·  Practice and procedure — judgment to be given on evidence before the Court — judge’s knowledge of party’s behavior in previous suit irrelevant.

The behavior of a party in a previous Suit between himself and another person cannot be raised as an issue by the judge. The case must be tried on the evidence before the Court and nothing else.
 

Judgment

The facts are fully set out in the judgment of B. Awadalla J.

Advocates: Applicant in person

Respondent in person

B. Awadalla j. 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/57/1954. The suit was started by the applicant on 3 January

1954 for rectification of the register of the respondent’s share in Sagia

(*) Court: M.I. El Nur, Acting C.J. and B. Awadalla J.

2 Abdotob, comprising 1 1/4 muds in performance of a written agreement of sale, dated 21st. September 1950.

The parties to the suit are brother and sister, and the 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 possession 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 of 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 the second witness said was, “I was a witness to the agreement but I do not remember any details about the transaction.” This commission evidence was received by the Court on the 25th July 1954, and on that same date the District Judge entered a note on the desirability of checking the thumbprint of the respondent on the agreement. On the 28th. August 1954 the respondent for the first time appeared in person before the District Judge, and denied having thumbed the agreement. The Judge immediately proceeded to give judgment. In this judgment the District Judge did nothing but comment generally on the character of the applicant and related an episode about his deceitful behavior in another suit in which he was suing his brother, and then proceeded to conclude that the written agreement was the outcome of a similar contrivance, and to dismiss the claim with Costs. The applicant appealed to the Province Judge and his application was summarily dismissed.

We consider that the applicant’s Case was not properly heard and determined in the Court below. His behavior in a previous suit between him and his brother cannot be brought in issue in these proceeded. 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 itself in issue, and a 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 must be allowed, and that the case should be referred back to the District Court for rehearing.

M.I. El Nur, Acting C.J. — I concur.

Appeal Allowed.