Joseph Kimera v. Idd Hemedi, Civ. App. 1-M-68, 31/7/68, Seaton J.

Joseph Kimera v. Idd Hemedi, Civ. App. 1-M-68, 31/7/68, Seaton J.

Plaintiff sued defendant upon a contract of guarantee and was awarded judgment. His principal evidence consisted of a document, Exhibit A, alleged to have been written and signed by defendant acknowledging the guarantee, and also a copy of a letter, Exhibit B, written by plaintiff to defendant demanding payment on the contract. Defendant appealed on the following grounds, inter alea; (i) the magistrate should have referred Exhibit A to handwriting experts or the police to determine if it was really written by defendant, rather than rely on his own judgment; (ii) the magistrate erred in admitting in evidence Exhibit B without proof that it was delivered to the defendant and without proof of service of notice to produce the original; (iii) plaintiff failed to serve a copy of Exhibit A on the defendant together with the plaint and summons as required by Order VII, Rule 14 of the Civil Procedure Code; (iv) the magistrate failed to frame the issues at the outset of the trial as required by Order XIV, Rule 1 of the Civil Procedure Code.

            Held: (1) “Most magistrates would perhaps prefer to have the evidence of specialists or experts on a question of handwriting, but I do not think the method employed by the learned magistrate was unreasonable or failed to satisfy s. 69. of the Evidence Act.’ (2) Notice to produce is a technical device with which laymen would not ordinarily be acquitted, and was not required of plaintiff. However, plaintiff should have been required to prove delivery of the original of Exhibit B to the defendant. (3) The trial court should have recorded the reasons why plaintiff failed to attach copy of Exhibit A to the plaint, and why nevertheless it was admitted as evidence. (4) The failure to frame the issues at the outset was not in itself fatal. However, the combination of the various procedural irregularities amounts to a mis-trial and a failure of justice. Case remanded for re-trial.