Ahmed v Abdurehman and Others (C.A. 16/1934) [1937] EACA 130 (1 January 1937)

#### COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J. (Uganda), Ag. P.; LAW, C. J. (Zanzibar) and LUCIE-SMITH, Ag. C. J. (Kenya.

#### KHAMIS BIN AHMED (Appellant) (Original Plaintiff) $\eta$ .

# AHMED BIN ALI BIN ABDUREHMAN AND EIGHT OTHERS (Respondents) (Original Defendants).

### C. A. $16/1934$ .

Law-Legitimacy-Lawful marriage-Alleged Mohammedan acknowledgment of appellant as son-Conduct of alleged father towards appellant—Appeals from decisions of Supreme Court of Kenya in its appellate capacity limited to questions. of law-Appeal from a Kathi's Court to Supreme Court of Kenva-Whether provisions of Indian Evidence Act or Mohammedan rules of evidence apply in Mohammedan Courts on question of marriages-Kenya Colony Order-in-Council, 1931, Article 7-Native law repugnant to justice and morality—Whether law of Islam can be described as "native law"-Whether requirements of Islamic law of evidence can be described as "technicalities of procedure"."

- Held (29-6-34).—That the Court of Appeal in appeals from decisionsof the Supreme Court of Kenya in its appellate capacity is restricted to hearing objections on questions of law only and that it would not interfere in the following circumstances, viz. wherethe Judge held $(a)$ that the evidence submitted by the appellant as to the performance of marriage was unsatisfactory; (b) that<br>the evidence did not convince him that the marriage had been proved by repute; and (c) that the evidence did not convince him that the relationship could be properly inferred from the conduct of the alleged father's father after the death of the alleged father. - Held Further.-That the Judge of the Supreme Court was correct. in holding that one admission of paternity was ambiguous and in holding that by Mohammedan law the testimony of a single: witness is not enough to prove any fact. (Minhaj, pp. 517-518.) - Held Further.-Following Athman bin Mohamed v. Ali bin Salim, 6 E. A. L. R., page 91, on a question of marriage between Mohammedans in a Mohammedan Court, the Mohammedan rules of evidence apply. - Held Further.—That the law of Islam cannot be described as "nativelaw" for the purpose of Article 7 of the Kenya Colony Orderin-Council, 1921, merely because it is the law applicable to many, or even all, of the natives of the Kenya Protectorate, nor can it be held that a canon of Islamic jurisprudence to the effect that no fact can be proved unless by the evidence of two witnesses is. a mere technicality of procedure.

# Appeal from Supreme Court of Kenva.

#### Christie for appellant.

## Burke for respondents.

Christie.—I do not rely upon the Indian Evidence Act. It may be ignored. If inconsistent with Indian Evidence Act rulesof Mohammedan evidence must give way. Wilson's Anglo-Mohammedan Law, paragraph 86. Judgment says plaintiff must prove (a) a marriage, (b) birth of a child from that marriage. Ameer Ali, Vol. II, p. 252 (4th Ed.). Disregard by Judge of presumption of legitimacy. Wilson, para. 80, p. 157, para. 84. Tayabji's Mohammedan Law; 2nd Ed. paras. 223 and 224. Ameer Ali, Vol. 11., Cap 7 (Illegal and invalid marriage) Wilson. para. 39 (a), Minhaj, para. 284. Question of consent not given. by woman's guardian not argued in Supreme Court. Wilson. para. 30, formalities required may be presumed. Continual cohabitation. This was proved. Child could sit up before they separated. Fact to be proved was the paternity. Judge was wrong in insisting on an express admission and in demanding witnesses to each express admission. An admission is to be inferred from circumstances here. Montgomeric and $Co. v.$ Wallace James (1904), A. C. Julia (the) 15 English Reports. p. 284, per Lord Kingsdown. To summarize: (1) The Indian Evidence Act applies against Mohammedan rules of evidence, not substantive law. (2) The Judge misapplied the Mohammedan law of evidence more specially as regards witnesses to acknowledgment. (3) He disregarded the presumption of legitimacy in Mohammedan Law. The presumption would rise from proof of marriage, regular or irregular, and cohabitation plus repute. The presumptions are in favour of legitimacy. (4) Disregard of the conception of an invalid marriage. The children are legitimate even if the marriage is invalid. (5) Acknowledgment of child. Judge ignored the presence of child in father's house. Contrary practise to reverse a Kadhi.

Burke.—The plaintiff claims a declaration of legitimate sonship. He said his father and mother were married and he is the legitimate offspring. The Judge found with the Chief Kathi's assistance that there was no marriage. He'finds there was no marriage by repute. As to the actual proof of marriagethe Judge has disbelieved the two alleged eve witnesses. Admission of paternity; the Judge disposes of one witness by saying that what he testifies to does not apply to the Kathi's Court, Athman bin Mohamed v. Ali bin Salim and another, 6 E. A. L. R., The Judge appreciated and dealt with every submission 91. before him. Conduct of Abdurrehman not accepted by the Judge. This was a finding of fact. As to the applicability of Moham-<br>medan law, Order-in-Council, 1897, Art. 5, as to powers; Art. 52. Mohamed bin Salim v. Nur Mohamed Kanji, 6 E. A. L. R., p. 148. Indian Limitation Act not applied; Athman bin Mohamed v. Abdulhosein Karimji, 7 E. A. L. R., p. 6. **Carlo Barriero** $\mathcal{L}^{\mathcal{L}}(\mathcal{L})$ $\overline{ }$

*Christie* replied: $-(1)$ Application of Indian Evidence Act. Even assuming that it does not apply, the procedure in all Courts is so circumscribed that any rule repugnant to the British system is inadmissible, Art. 7, Order-in-Council, 1921. Supreme Court disregards this Art., and employs an archaic requirement of Mohammedan law. Order-in-Council, 1897. (2) Fact to be admitted was paternity. Judge asked for two witnesses to each admission. There were two oral admissions, but not two witnesses. The fact to be proved is acknowledgment, not admission. Two witnesses may be required to acknowledgment, not to the admission.

ABRAHAMS, C. J.—This is an appeal from a judgment of Mr. Justice Webb reversing a decision of the Kathi of Takaungu whoallowed the claim of the appellant to be the legitimate son of one Ahmed bin Abdurrehman by one Yumbe binti Lali.

The appellant bases his claim upon three grounds. First. he says that Ahmed bin Abdurrehman and Yumbe binti Lali were lawfully married; secondly, he says that Ahmed bin Abdurrehman acknowledged him as his son; and, finally, he says that the relationship ought to be inferred from the conduct towards him after Ahmed's death, of Abdurrehman, Ahmed's father.

Under the law regulating appeals from decisions of the Supreme Court in its appellate capacity we are restricted to objections to the judgment on questions of law only.

The learned Judge held that the evidence submitted by the appellant as to the performance of the marriage was unsatisfactory. This is a question of fact and we have no power to review the learned Judge's finding. He also refused to be convinced by the appellant's submissions that the marriage had been proved by repute. This also is a question of fact. As to the evidence adduced to support the appellant's case that the relationship could be properly inferred from Abdurrehman's conduct he was of opinion that it was unconvincing—another question of fact.

As to the acknowledgment of paternity of Ahmed there were two witnesses each to a separate admission by Ahmed. The learned Judge found that one admission was ambiguous, and continued by observing that "by 'Mohammedan law the testimony of a single witness' is not enough to prove any fact (Minhaj, p. 517-18) so that here the proof is defective in respect of each of the said admissions."

Mr. Christie, for the appellant, argues that this finding is wrong in point of law. He says that two witnesses to a fact are not required by the Indian Evidence Act and as the rules of Mohammedan evidence are inconsistent with that Act they should give way. We were led during the course of the argument to discuss whether the provisions of the Indian Evidence Act applied

to the Subordinate Native Courts of the Kenva Protectorate or not, but we do not think it necessary to give any definite ruling on this point, as we consider we are bound to follow the decision of the East African Court of Appeal in Athman Bin Mohamed v. Ali Bin Salim, 6 E. A. L. R., p. 91, where it was held that on a question of marriage between Mohammedans in a Mohammedan Court the Mohammedan rules of evidence apply. In that case one of the necessary two witnesses to a fact was disqualified under Islamic law from testifying and the evidence was held therefore to be deficient.

It is then said by counsel that the learned Judge has erred in holding that the two witnesses are required for the proof of each of these admissions merely because the Islamic law requires two witnesses to prove each fact. The factum probandum in this case, says counsel, is paternity and providing two witnesses can be found to prove this factum piecemeal that is all that can be required. This argument backed up by an appealing illustration is attractive rather than effective. At the most, paternity here is the ultimate fact to be proved whereas the immediate facts are each admission.

Finally our attention has been directed to the provisions of Article 7 of the Kenva Colony Order-in-Council, 1921, and we are asked to say that the learned Judge violated the injunction of this Article by permitting himself to be guided by native law repugnant to justice and morality, and by having undue regard to a technicality of procedure. It is by no means easy to decide what is the length and breadth of this well-intentioned Article, but I cannot describe the law of Islam as "native law" merely because it is the law applicable to many or even all of the natives of the Kenya Protectorate; nor am I prepared to agree that a Canon of Islamic jurisprudence to the effect that no fact can be proved unless by the evidence of two witnesses is a mere technicality of procedure. No authority has been cited to us in support of either of the bold propositions which have been advanced and I for one refuse to accept them.

I would therefore dismiss this appeal with costs here and in the courts below.

÷.

Law, C. J. (Zanzibar).—I agree.

LUCIE-SMITH, Ag. C. J. (Kenya).-I agree.