[1934] EACA 16

APPELLATE CIVIL.

## Before LANE, Ag. J.

## KILONZO WA KANYANYA (Appellant) (Original Defendant). $v.$

## ODHAVJI PURSHOTAM AND BROS. (Respondents)

(Original Plaintiffs).

## C. A. $21/33$ .

Credit Trade with Natives Ordinance, Cap. 130 Laws of Kenya-Indian Evidence Act sections 91 and 92—Bills of Exchange— Admissibility of evidence as to transactions in respect of

which bills of exchange are given.

$\cdot \cdot$

Held (14-4-34).-That where a native is sued upon a bill of exchangeeven though it exceeds Sh. 200 in value and has not been attested. before a District Officer, the native cannot be allowed under sections 3 and 5 of Cap. 130 to show that the bill was given inconsideration for goods purchased on credit. By virtue of section 91 of the Indian Evidence Act, when the terms of a contract have been reduced to the form of a document, e.g. a bill of exchange, no evidence is receivable as to the nature of the contract. By section 92, Indian Evidence Act, no oral evidence is admissible to vary such contract. The only exceptions are those<br>laid down under these sections of the Indian Evidence Act. The Indian Evidence Act overrides Cap. 130.

The respondents, Indian traders, sued the appellant, a native, in the Magistrate's Court, upon twelve bills of exchangeand one promissory note. The bills were of various dates and for varying amounts; none were attested by a District Officer. The appellant disputed the claim and pleaded that proof of the wholeof it was barred by the provisions of sections 3 and 5 of Cap. $130$ . in that it was a claim for goods supplied on credit by a nonnative to a native, that it exceeded Sh. 200 in value and had: not been attested by a District Officer.

The learned magistrate found that the appellant was liable. upon any of the bills the value of which did not exceed Sh. 200: and that judgment should be entered against appellant in respect. of such bills for Sh. 1,481/51 subject to a set off, to be proved.

The appellant appealed against this judgment and claimed that the total of any bills executed on one date was to be taken. as one transaction and that where any such total exceeded. Sh. 200 the respondent's claim was barred by Cap. 130. $He$ admitted liability upon one bill only, for Sh. $81/51$ .

The respondents' case was that when the bills were passed. the contract ceased to be one for the sale of goods on credit and became one under the Bills of Exchange Ordinance.

Malik for Appellant.

Mangat for Respondents. 5 J.

JUDGMENT. - The claim in the Resident Magistrate's Court, Nairobi, was for Sh. 2,698/56 said to be due to plaintiffs, Indian traders, by defendant a native, on twelve bills of exchangeand one promissory note.

The defendant (appellant here) denied liability on the ground that proof of the transaction was barred by the provisions of Cap. 130. Laws of Kenya.

The learned magistrate dealing with this defence as a preliminary point found that by virtue of sections 3 and 5 of Cap. 130, the plaintiffs (respondents here) could succeed only on those bills, the amount of which did not exceed Sh. 200; he held that the respondents were entitled to succeed to the extent of Sh. $1,481/51$ , but that there was a set-off to be disposed of first.

Actually according to my calculations he should have found on his interpretation of the Law that Sh. 1,681/51 was due to the respondents less any set-off and not Sh. 1,481/51. There appears to have been an arithmetical error made.

This appeal is against that finding; the appellant's case isthat the whole of respondents' claim is barred by the provisions of Cap. 130 with the exception of one item of Sh. 81/51, and that the learned magistrate's judgment should be set aside.

The appellant says that the respondents are not entitled tosucceed on any transaction which took place on any one day exceeding Sh. 200; he claims that the bills were given for goodssold on credit, that any set of bills given on the same day formone transaction and that any such transaction exceeding Sh. 200° is barred by Cap. 130.

The original bills were never produced, which I hold to bewrong; I consider that they should have been exhibited at the first hearing.

The respondents argue that they are entitled to succeed on. the whole claim; they say that as soon as bills were passed the. original contract ceased; in fact there was a novation; it ceased to be a contract for the sale of goods on credit and became one. under the Bills of Exchange Ordinance by which the appellant undertook to pay so much to respondents on certain dates. The respondents raised several other points to which it is unnecessary for me to refer.

Cap. 130, section 3, provides that no contract for the saleof goods on credit exceeding Sh. 200 to a native shall be valid. unless attested by a District Officer; section 5 forbids any evidencein proof of such contract to be received in a Civil Case unless soattested.

It appears to me that by virtue of section 91 of the Indian Evidence Act, when the terms of a contract have been reduced to the form of a document such as a bill of exchange no evidence is receivable as to the nature of the contract except the document itself. It is therefore impossible for the Court to inquire whether the contract was for the sale of goods on credit or for any other purpose or to receive evidence as to this.

Section 92 equally forbids the production of any oral evidence to contradict, vary, add to or subtract from the terms of such document.

The exceptions to those sections do not appear to apply to this case.

A Statute of general application, such as the Indian Evidence Act, giving effect as it does to a fundamental principle of British Law, would appear to over-ride the provisions of Cap. 130, which it would seem is intended to apply primarily to simple sales of goods on credit.

Holding this view I consider that the learned magistrate's judgment must be reversed and the appellant held liable for the full amount of the claim.

The case is therefore remitted to the lower Court for evidence to be taken as to the set-off claimed. The respondents to have costs in the lower Court and in this Court.