[1928] EACA 2

#### COUHT OF APPEAL FOR EASTERN AFRICA.

#### Before Sm ALISON RussELL, • C. J. (Tanganyika), DooRLY, J. (Zanzibar), and Mum MACKENZIE, J. (Tanganyika).

# MOHAMED BIN SALIM EL-JEHAZMI *(Appellant) (Original. Plaintiff)*

I'.

## KHOJA TARMOHAMED FAKIR MOH. AMED *(Respondent) (Original Defendant).*

### C. A. 11/1.928.

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

*Held:* -That the Court of Appeal must refuse to read 01· permit to be used any document not endorsed in th~ manner require~.

*Gulamali for appellant.*

*Hasan for 1·cspondent.*

Juoa111ExT.-This is an appeal from the decision by the Chief Justice Sm THOMAS ToMLINSON in the High Court of Zanzibar upon a question arising on the amount due under fl mortgage. As part of. the defendant's ·case, the defendant put in a ce:rLain 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 t,he 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 t.itle of the suit; - (b) the name of- the person producing phe document; - (c) the date on which it was produced; and · - (d) statement of its having been admitted.

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

The case of *Sadik }(han v. Hashim Khan* (1916) 43, *Al.l lndia \_-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 ns though the account had not. been nd1nitted by the lcnrned Chief Justice.

**l\fr.** Hasan fo1· the respondent has submitted thnt, e,·en if this at:count is not C'Onsi<lerecl by the Court, yet there is sufficient other evidence to ennble this Court to nffirm the decision. The Court hris power to do this under the provisions of Order XLI, rule 24, of the Civil Procedure Decree, 1917.

Turning, howeYer, to the Judgment. of the learned Chief Justice it appears clear that he bnsed that, Judgment on a consideration of the l'Vi<lcnce given on behalf of the plaintiff and the evidence gi,·en on behalf of the defendant. He did not say that the evidence for the plaintiff was so wholly unreliable as to make it wmecessary for the defendant to give evidence. Had he done so,. he might hnve stopped lhe 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 dl'fendant must s11ceeecl. By for the most, iniport,mt part of the defendant's evidence is the account in question,· .which we nre not able to consider. \Ve 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 t,o decicle on the facts without that nccount.

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.