Abudu Ame Ame Shirazi v. Hadija binti Hemed Shirazia, Civ. App. 1-Z-65, 14/1/65, Saidi Ag. C. J.

 

Abudu Ame Ame Shirazi v. Hadija binti Hemed Shirazia, Civ. App. 1-Z-65, 14/1/65, Saidi Ag. C. J.

The plaintiff sued his wife, on grounds of desertion, for restitution of conjugal rights. She and her witnesses Persuaded the Kadhi that the plaintiff had in fact divorced her by pronouncing the talak three times. Neither the parties nor their witnesses were sworn before testifying, however, and the Kadhi did not ask the plaintiff for any reply to his wife’s allegation.

Held: (1) Generally, a witness’s testimony is not admissible in evidence unless he has been sworn to speak the truth. (Citing R. v. Tew, Dear 429; R. v. Brasier (1779), 1 Leach 199; Attorney General v. Bradlaugh, (1885) 14Q.B.D. 667, C.A.)

            (2) The failure to swear a witness, though a “serious irregularity” in a trial, will not necessarily invalidate the proceedings. (Citing Oaths Decree, s. 11.)

            (3) A re-hearing is here ordered because “it is difficult to say whether or not the parties or their witnesses spoke the truth,” and because of the “one-sided” conduct of the hearing by the Kadhi.