Kassim v Public Trustee (Civil Appeal No. 19 of 1942) [1942] EACA 51 (1 January 1942)

### APPELLATE CIVIL

BEFORE THACKER, J. (with Chief Kathi as an assessor)

### MLISHO BINTI KASSIM, Appellant (Original Plaintiff)

$\mathbf{1}$

## 1. THE PUBLIC TRUSTEE, as the Administrator of the estate of ABDULLA BIN MTUMWENI MCHANGAMWE. deceased.

and

# (2) MWINJAKA BIN MWINYI FAKI. Respondents (Original Defendants)

## Civil Appeal No. 19 of 1942

Evidence—Evidence and finding in former suit taken into consideration in deciding present suit—Different parties in later suit—Costs.

The facts sufficiently appear from the judgment.

The plaintiff appealed.

*Held* (19-10-42).—That a Court in a civil action is not empowered to take into consideration. evidence heard by that Court in a former civil suit not between the same parties or persons claiming under them or to decide the second suit upon the evidence or its own decision in the former suit.

Appeal allowed with costs and cause remitted for rehearing by the lower Court.

#### D. D. Doshi for the appellant.

Inamdar for the respondent.

JUDGMENT.—The learned Kathi in the Court below based his decision on the result of another Civil Suit No. 50 of 1941 before himself which case also went to appeal. That case was between one Mwinyi Haji bin Hamisi Haji and the present defendant-respondent. The present appellant-plaintiff was no party to that suit and cannot be bound by any decision arrived at therein.

The pleadings in this case show that the plaintiff claimed to be a neice of the deceased Abdulla bin Mtumweni and the defendant does not deny that relationship. On the other hand, the defendant claims to be an asaba of the deceased, and if he is, he would rank before the plaintiff as an heir, but on the other hand the plaintiff did not admit his relationship and since that issue was contested, and it appears to have been the only issue, the defendant should have been called upon to prove his relationship without any reference to a decision in a previous case. The record of the Kathi's Court shows that only the plaintiff gave evidence, namely that she was a neice of the deceased and there is nothing to show whether there was any cross-examination. The evidence somewhat abruptly ended there and judgment was then given, based, as I have said on what was decided by the Kathi in another and earlier suit.

The defendant should have of course given evidence to prove that he was an asaba of the deceased and so ranked prior to the plaintiff. It is admitted by Mr. Inamdar for the defendant that the case must go back to the Kathi for rehearing so that evidence in the case on both sides may be led and each party given an opportunity of proving his or her relationship. The only question for. this Court to decide is that of the costs of this appeal. Mr. Inamdar argues that each side should pay its own costs, since Mr. Doshi in his memo of appeal

has failed on one submission, namely that the appeal should-be allowed (having abandoned grounds 1 and 2 of the appeal), and succeeded on the other, namely that the case should be sent back for retrial. These prayers, however, are in the alternative—the appellant asks that the judgment of the Kathi be reversed or that the case be sent back for retrial. I cannot see any reason, since the appellant is successful in getting an order for retrial why any other but the usual order should be made, that costs should follow the event. It would be unfair on the appellant, seeing that he obtains an order for retrial in order that justice may be done, that he should not get his costs of this appeal. The case is ordered to be sent back to the Kathi for retrial with directions that the evidence of the plaintiff and her witnesses and the evidence of the defendant and his witnesses be heard, and the usual facilities for cross-examination given to both sides.

The appellant will have his costs of this appeal. The order in the lower Court that the plaintiff pay the defendant's costs is set aside and the costs of that hearing and of the resumed hearing will be left to the Kathi to decide, according to his ultimate decision.