[1955] EACA 214

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (Vice-President) (In Chambers).

## **B. C. MOHINDRA, Appellant | Applicant (Original Plaintiff)**

## SHADI RAM MOHINDRA, Respondent (Original Defendant)

## Civil Appeal No. 1 of 1955

(Reported by leave of the Judge)

(Application for leave to adduce evidence on the hearing of an appeal from: decision of H. M. Supreme Court of Kenya, Cram, Ag. J.)

Eastern African Court of Appeal Rules, 1954, rules 19, 52 and 74—Application: to adduce additional evidence at appeal.

By sub-rules 1, 2 and 3 of rule 74 aforesaid: "(1) Appeals to the Court shall be by way of re-hearing, and the Court shall have all the powers and duties, as toamendment or otherwise, of the Superior Court, together with full discretionary power to receive further evidence by oral examination in Court, by affidavit, orby deposition taken before an examiner or commissioner. (2) Such further evidence may be given without leave on interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which theappeal is brought. (3) Upon appeals from a judgment, decree or order, after trial or hearing of any cause or matter upon the merits, such further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds. only, and not without leave of the Court."

By rule 52 aforesaid: "In any case not provided for by these Rules thepractice and procedure for the time being of the Court of Appeal in England. shall be followed as nearly as may be."

The appellant/applicant, relying on rules 74 and 19 aforesaid, moved, in Chambers, for leave to adduce at the hearing of the appeal evidence that (1) thetrial judge had obstructed or forbade the re-examination of the appellant on matters arising out of cross-examination, and (2) he declined or refused to hear the appellant's advocate when the latter desired to address him on the facts of the case.

It was alleged that neither the trial Judge's notes nor the record of the-Supreme Court disclosed these facts. This was partly admitted by the respondent.

The appellant/applicant thought that the application was not specifically provided for in the said rules, in which case rule 52 would apply.

The respondent argued that the appellant/applicant had not brought himself within the scope of any rule of the Court, that the evidence sought to be adduced was not fresh evidence in the usual sense and that the application was unnecessary.

Held (28-3-55).—The evidence sought to be adduced related to something that had occurred after the date of the decision from which the appeal was brought, and, as such, might<br>be given in evidence without leave under rule 74 (2) aforesaid, it being something which had only come to the appellant/applicant's knowledge since the trial as he could not, until<br>then, know what note the trial Judge was making of what occurred thereat. It is nevertheless a sound practice that a party proposing to adduce evidence on a point such as in<br>the instant case should give notice to the opposite party of his intention so to do.

Case referred to: *Re Chennell* (1878) 8 Ch. D. 492.<br>Application granted. Affidavits filed with application to be read, subject to all just. exceptions, on the hearing of the appeal. Liberty to both parties to file further affidavitsand counter affidavits. Costs reserved.

Lean for applicant/appellant. Mrs. Kean for respondent.

RULING.—This application came before me in Chambers in compliance, or purported compliance, with the provisions of rules 74 and 19 of the Eastern African Court of Appeal Rules, 1954. The appellant/applicant has lodged an appeal from a judgment and decree of the Supreme Court of Kenya and now moves for an order that he should have leave to adduce at the hearing of the $\approx$ appeal evidence that—

- (a) the learned Judge at the trial obstructed or forbade the re-examination of the appellant (defendant at the trial) by his advocate on matters arising out of his cross-examination; and - (b) the learned Judge declined or refused to hear the defendant/appellant's advocate when the latter desired to address the Court on the facts of the case.

It is alleged that neither the Judge's notes nor the record of the Supreme Court disclose these facts, which are deposed to in an affidavit sworn by the advocate who appeared for the applicant at the trial. These facts are admitted in part by the respondent but are in part denied as appears from the affidavit sworn by the advocate who appeared for the respondent at the trial.

Mr. Lean, for the applicant, could not refer me to any exact precedent for an application of this nature and thought it was not specifically provided for in the new Rules of this Court. If that were so then rule 52 would apply.

Mrs. Kean, for the respondent, contended that the applicant had not brought himself within the scope either of any rule of this Court or of the rules of practice and procedure of the Court of Appeal in England. The evidence now sought to be adduced was not fresh evidence in the sense usually attributed to that phrase, namely, evidence not used at the hearing or trial in the court below, and she referred to Re Chennell (1878) 8 Ch. D. 492 (C. A.). She further contended that the present motion was unnecessary and that the proper practice where a party wishes to impugn the record, if counsel concerned cannot agree upon a statement as to what occurred at the trial, is to apply for leave at the hearing of the appeal to read affidavits.

It is of course true that the evidence now sought to be adduced is not evi--dence which could have been used at the trial: it is something different. It is something which has only come to the appellant's knowledge since the trial, for at the time he could not know what note the trial Judge was making of what occurred at the trial. I think, therefore, it may properly be regarded as matter which has occurred after the date of the decision from which the appeal is brought and, as such, may be given in evidence at the appeal without leave: rule 74 (2). If I am correct in that, then his application was strictly unnecessary.

Nevertheless, it seems to me sound practice that a party proposing to adduce evidence on such a point should give notice to the opposite party of his intention to do so to prevent surprise and possible adjournment of the hearing. In this connexion, I would invite attention to the practice when leave to produce further evidence is required as set out in the Annual Practice, 1955, at p. 1253 under the Notes "Practice" and "Objection to Fresh Evidence". See also the English *and Empire Digest*, Pleading and Practice, at p. 778.

I have consulted my brethren of this Court who agree with the foregoing.

In the present instance, however, I propose to make the order asked for in the motion and to direct that the affidavits filed in this application may be read. subject to all just exceptions, on the hearing of the appeal, with liberty to both parties to file further affidavits and counter-affidavits as they may be advised. My reason for so ordering is that the 1954 Rules are new, the point is so far as I am aware a new one and there was uncertainty as to the proper practice. The costs of and incidental to this application are reserved for the order of the court which Thears the appeal.