(COURT OF APPEL)*

ALl ABU ZEID v. HEIRS OF HASSAN ABU MONIEM

AC-REV-112-1964

Principles

·  Evidence- Deposition in former trials—Testimonv 3isen in previot trial is admissible in subsequent trial, provided that: parties or their privies are same; issves involved are same; opportunity of cross-examination in former trial is given; and witness is incapable of being called

·  Landlord Tenant—Standard rent by analogy—It is wrong to calculate standard rent by way of analogy with another suit

(i) Testimony given by a witness in a trial is admissible in subse’uent trial in proof of the facts stated, provided: (1) that the proceedings are between the same parties or their privies; (2) the same issues are invoved; (3) the party against whom the evidence is tendered had on the former trial a full opportunity of cross-examination; and (4) the witness is incapable of being c on the subsequent trial.
(ii) It is contrary to the rules of procedure and practice to calculate the standard rent by way of analogy with another suit

Judgment

Advocates: Farouk Abu Eisa for applicant

Hussein Osman Wanni for respondent

Hassan Abdel Rahim J. November 30 1965: —This is an application for res isbn submitted against the order passed by His Honour the Judge of the High Court, Khartoum, vide which he dismissed a similar application lodged against a decree passed by the District Judge (High Court) for arrears of rent and eviction.

The facts of the case are as follows:

Respondents brought an action against applicants for the recovery of arrears of rent and eviction of a shop in Omdurman Market.

There was a dispute over the standard rent and so issues were framed. The learned District Judge calculated the standard rent by way of analogy with another case, i.e., CS-1805-158 Omdurman, in which the standard rent of a twin shop to the shop in issue was argued and calculated. The decree passed by the District Judge was affirmed by His Honour the Judge of the High Court. Thereafter an application for revision was lodged against the decision of the Judge of the High Court on June 11, 1964, the Honourable the Chief Justice ordered that execution of the decree for eviction be stayed pending final disposal of the application. Unfor tunately it appeared that applicant was evicted from the shop before this court passed its final decision

The grounds of the application are:

1. The manner in which the standard rent was calculated by way of analogy with another suit is bad in law.

2. There was a genuine dispute over the standard rent and in spite of this applicant continued to pay £S.16000m/ms. There were no grounds to pass an order of eviction.

3. Before instituting the suit respondent did not know that the standard rent was £S.27.500m/ms. and he failed to notify applicant of the standard rent when he called upon him to do so.

4. Applicant was evicted from the shop in spite of an order passed by this court to stay execution.

In my opinion this application should be allowed. The District Judge (High Court) was wrong to decide the issue of standard rent by reference to CS-1805-1958 Omdurman, in which applicant was not a party at all. In the judgment the court said: (In so far as the standard rent is concerned reference may be made to Omdurman CS-1805-1958 in which the standard rent of a twin shop to the one in issue was argued and calculated. I perused the record of that suit.)

In law the evidence taken at previous trials, whether civil or criminal, is admissible in a subsequent trial in proof of the facts stated, provided that:

1. The proceedings are between the same parties or their privies.

2. The same issues are involved.

3. The party against whom or whose privy the evidence is tendered, had on the former occasion a full opportunity of cross-examination.

4. The witness is incapable of being called in the second trial.

Phipson, Evidence (10th ed., 1963), p.541.

In this case the evidence in CS-1805-1958 Omdurman ought to be rejected by the learned District Judge High Court either res inter alios acta (a transaction between others does not prejudice one who was not a party to it) or as hearsay and irrelevant. See Hollington V. F. Hewthorn & Co. Ltd. and Another 1:1943] K.B. 587, where Lord Goddard in his judgment at p. 596 said:

“A judgment obtained by A, against B, ought not to be evidence against C, for, in the words of the Chief Justice in the Duchess of Kingston’s case: ‘It would be unjust to bind any person who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment he might think erroneous; and therefore the judgment of the court upon facts found, although evidence against the parties, and all claiming under them, are not, in general, to be used to the prejudice of strangers.’”

This is true, not only of convictiOns, but also of judgment in civji actions. If given bctt the same parties they are conclusive but not against anyone who was not a party.

It was admitted by advocate for respondent that applicant was evicted from the shop in consequence of a decree passed in another case; but it is clear from the record that applicant was evicted contrary to the expr order passed by the Chief Justice in this application. This question was raised before us by advocate for applicant who urged this court to an order reinstating him to the shop.

Being a question, which has a direct relation with the question before us we should declare that applicant was wrongly ejected and that he is deemed to be in actual possession of the shop in dispute until the final disposal of this application.

Accordingly I am of opinion that the decree passed by the District Judge (High Court) and the Judge of the High Court be set aside and the suit be sent back for retrial in the light of the judgment.

Osman El Tayeb J. November 30, 1965: —I agree that this application be allowed and the case be sent back for retrial thot it seems to be logical that the standard rent of two twin shops in one building should be the same; but it is contrary to the rules of procedure and practice to decide a case. Where there is a dispute, without hearing the evidence of the parties, The evidence of the landlord may be the same as in the previous case about the twin shop; but the evidence of the tenant may be different from that of the other tenant, and so leads to a different result from that reached in the other case. Indeed it is his right to allege, and maintain that the standard rent is not that proved in another case. He has the right of being given a chance to prove his own case.