El Jehazmi v Mohamed (C.A. 11/1928.) [1928] EACA 23 (1 January 1928)

COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR ALISON RUSSELL, C. J. (Tanganyika), DOORLY, J. (Zanzibar), and MUIR MACKENZIE, J. (Tanganyika).

MOHAMED BIN SALIM EL-JEHAZMI $(Appellant)$ (Original Plaintiff)

KHOJA TARMOHAMED FAKIR MOHAMED (Respondent) (Original Defendant).

C. A. $11/1928$ .

Civil Procedure Decree, 1917, Order 13, Rule 4 (2)-Endorsement of exhibits.

Held: - That the Court of Appeal must refuse to read or permit to<br>be used any document not endorsed in the manner required.

Gulamali for appellant.

Hasan for respondent.

JUDGMENT.-This is an appeal from the decision by the Chief Justice SIR THOMAS TOMLINSON in the High Court of Zanzibar upon a question arising on the amount due under a mortgage. As part of the defendant's case, the defendant put in a certain account purporting to be derived from his business books. Upon the appeal coming before this Court Mr. Gulamali raised the preliminary objection that this account had not been endorsed as an exhibit by the trial Judge, as is required by the Civil Procedure Decree, 1917, Order XIII, rule iv (2). That rule provides as follows: "Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialled by the Judge ".

The particulars mentioned are:-

(a) Number and title of the suit;

(b) the name of the person producing the document;

(c) the date on which it was produced; and

$(d)$ statement of its having been admitted.

Mr. Gulamali submitted that as there was no endorsement signed or initialled by the Judge, this Court could not peruse the document.

The case of Sadik Khan v. Hashim Khan (1916) 43, All India Rep., 27, was referred to. In that case, at page 41, the Privy Council laid down that the Court would in order to prevent injustice be obliged in future to refuse to read or permit to be

used any document not endorsed in the manner required. That case was decided on the provisions of Order XIII, rule iv, of the Indian Civil Procedure Code, the provisions of which, in this respect, are exactly reproduced in the Civil Procedure Decree, 1917. This is a decision which binds this Court and accordingly we are compelled to consider this case as though the account had not been admitted by the learned Chief Justice.

Mr. Hasan for the respondent has submitted that, even if this account is not considered by the Court, yet there is sufficient other evidence to enable this Court to affirm the The Court has power to do this under the provisions decision. of Order XLI, rule 24, of the Civil Procedure Decree, 1917.

Turning, however, to the Judgment of the learned Chief Justice it appears clear that he based that Judgment on a consideration of the evidence given on behalf of the plaintiff and the evidence given on behalf of the defendant. He did not say that the evidence for the plaintiff was so wholly unreliable as to make it unnecessary for the defendant to give evidence. Had he done so, he might have stopped the case at the conclusion of the plaintiff's case. But he weighs the probabilities as a whole, and comes to the conclusion on the evidence that the defendant must succeed. By far the most important part of the defendant's evidence is the account in question, which we are not able to consider. We cannot say what view the Judge would have taken if this account had not been before him, and therefore we feel it is impossible for us to decide on the facts without that account.

In our judgment the case must be sent back for re-trial. We consider that all the costs up to date should be costs in the case.