M'Nasar v Ahmed (C.A. No. 57/1936) [1936] EACA 130 (1 January 1936)

## APPELLATE CIVIL

## BEFORE LANE, AG. J.

## HUSSEIN BIN M'NASAR, Appellant (Original Defendant)

## ABDULLA BIN AHMED, Respondent (Original Plaintiff) C. A. No. 57/1936

Procedure in Muslim Subordinate Courts—Parties being Arabs—

Mohammedan law to be followed as to procedure and evidence.

Held (14-6-37).—That in a Muslim Subordinate Court Mohammedan law applies as regards procedure and evidence where the parties are Arabs or Mohammedan natives. Where they are non-Mohammedan natives, native<br>law and custom applies. Indian Evidence Act inapplicable in civil dispute between natives.

$A. B.$ Patel for the appellant.

Inamdar for the respondent.

JUDGMENT.—This is an appeal from the Kathi's Court at Lamu. The parties are both Arabs. The respondent in that Court sued appellant for Sh. 500, made up of Sh. 200, being the balance of the proceeds of 100 jizlas of maize, and Sh. 300 claimed to be half the profit made by the sale of the maize at Kismayu. The plaintiff claimed the Sh. 200 as the balance of the proceeds of the sale of this maize (he had apparently already paid Sh. 700 the remainder of the proceeds of the maize) and half the profits on the sale: the allegation being that the defendant had agreed to sell and had sold the maize for the plaintiff and was to have half the profits, the remaining half going to the plaintiff who according to the plaint had not yet received such half.

The learned Kathi purported to decide the case according to Mohammedan Law.

Only one witness was called, on behalf of the plaintiff (respondent); that witness was an agent of the plaintiff. The learned Kathi thereupon held that the Sh. 300 claimed for half profits was not proved. He ordered the plaintiff to take an oath "in place of the second witness required by law" as to the Sh. 200, and the defendant to take an oath denying his liability for the Sh. 300. The plaintiff took the first oath but the defendant declined to take the oath regarding the Sh. 300. The plaintiff was then ordered to take an oath as to the Sh. 300 and took it. Judgment was entered for the plaintiff for Sh. 500.

The grounds of appeal are that: $-$

1. The learned Kathi erred in offering the oath to the plaintiff upon the issue of Sh. 200 and in ordering him to take it without the consent of the appellant and in deciding the issue upon the oath.

2. The learned Kathi erred in ordering the defendant to take the oath upon the issue of the Sh. 300 and in deciding against him when he declined to take it.

3. The learned Kathi ought to have dismissed the suit when he found that he was dissatisfied with the evidence of the one witness for the plaintiff and that there was no evidence supporting the claim for Sh. 300.

Mr. Patel for the appellant has urged: $-$

(1) That the learned Kathi ought to have followed the Civil Procedure Ordinance and Indian Evidence Act in regard to procedure and evidence and was wrong in applying Mohammedan law in regard to these two matters;

(2) That even if he was right in following Mohammedan law he erred in his application of it.

Mr. Inamdar for the respondent has argued that the learned Kathi was right in following Mohammedan law and procedure and that the judgment should be upheld as being in accordance with such law and procedure.

To consider Mr. Patel's arguments:

I think that the Kathi was right in following Mohammedan law and procedure for which reasons follow. The position relating to Arab litigants in a Muslim Subordinate Court is far from clear.

Art. 4 (2) of the Kenya Order in Council 1921 which applies to the Colony and Protectorate, provides that there shall be a Supreme Court in the Colony and Protectorate whose civil jurisdiction shall be exercised in conformity with the Civil Procedure Code of India (now replaced by the Kenya Civil Procedure Ordinance) and with the other applied Indian Acts and where these do not apply, with the Common law, Equity and Statutes of general application in England. This Article does not refer to subordinate Courts but merely to the Supreme Court. I note this in passing as it was referred to in Mr. Patel's argument.

By Art. 6 (1) Courts subordinate to the Supreme Court may be constituted under the provisions of any Ordinance as occasion requires. (This is done under the Courts Ordinance as will be seen later.)

By Art. 7. In all cases where natives are concerned the Court is to be guided by native law and custom so far as is compatible with. justice and morality and not inconsistent with any Order in Council or Ordinance or regulations thereunder. (This Article has no application in this case as the parties here are Arabs and although under the Definition of Natives Ordinance, 1934, to be referred to later, they are classed as natives for the specific purpose of including them in the jurisdiction of the Liwalis', Kathis', and Mudirs' Courts, this does not constitute them natives for purposes of the Order in Council, Arabs being specifically excluded from the general definition of native under section 2 $(a)$ of the Definition of Native Ordinance.)

By Art. 9 subject to the provisions of any Ordinance the Supreme Court may make regulations for regulating the practice and procedure of the Supreme Court and other Courts. No regulations exist under this Article which would clear up the point in question here.

The effect of the Courts Ordinance 1931, sections 3 and 18, is that Liwalis', Kathis', and Mudirs' Courts at the Coast (in the Protectorate) have jurisdiction of varying degrees over natives and Arabs: the latter are included in such jurisdiction by special provision in section 8 of the Definition of Natives Ordinance, 1934.

These Courts were originally termed "Native Subordinate Courts" in the Courts Ordinance 1931; but by an amendment enacted by section 8 of the Definition of Natives Ordinance 1934, they are now termed Muslim Subordinate Courts.

Cap. 4 Laws of Kenya, sections 3 and 4, has the effect of making the Indian Evidence Act inapplicable to natives in a civil dispute; the Act remaining applicable to Arabs.

Section 1 (3) Civil Procedure Ordinance 1924 lays down that the Civil Procedure Ordinance shall extend to proceedings in the Supreme Court and, subject to the Kenya Colony Order in Council 1921 and the Courts Ordinance, 1907, to proceedings in all subordinate Courts other than Native Subordinate Courts.

This provision would at first sight seem to throw a definite light upon the question as to the applicability of the Civil Procedure Ordinance to Kathis' Courts where the parties are Arabs. But on consideration this is not so.

The Order in Council 1921 in Article 7 already referred to, only settles the question as regards native litigants by enacting the applicability to them of native law and custom. So that if the parties here had been Mohammedan natives, Mohammedan law would apply to them or if they had been pagan natives, within the restrictions provided in Article 7, their own law and custom would apply.

The Order in Council 1921 consequently does not appear to help as regards Arabs in a Kathi's court.

The Courts Ordinance 1907 has been repealed and no longer applies. The Courts Ordinance 1931 has taken its place for all ordinary purposes but in so far as concerns section $1$ (3) of the Civil Procedure Ordinance it cannot be taken as having any effect in the absence of specific provision.

Furthermore as already explained "Native Subordinate Courts" have ceased to exist: they have become "Muslim Subordinate Courts" for purposes of the Courts Ordinance, 1931, and of section 2 of the Criminal Procedure Code, but not for purposes of the Civil Procedure Ordinance, section $1$ (3).

For the provision of law which created Native Subordinate Courts (section 3 of the Courts Ordinance 1931) has been altered and there exist in their place only Muslim Subordinate Courts. So that the effect of section 1 (3) Civil Procedure Ordinance is to extend the provisions $\frac{1}{2}$ of the Civil Procedure Ordinance to all subordinate Courts in the Colony, including it would appear Muslim Subordinate Courts since they are not excluded specifically.

Section 2 (3) Civil Procedure Ordinance, which provides that "Court" shall mean any civil Court other than Native Subordinate Courts, is also nullified by this same amendment. Muslim Subordinate Courts would therefore appear to be Courts recognized under the Civil Procedure Ordinance and the conclusion would seem to be that both the Civil Procedure Ordinance and the Indian Evidence Act apply to Muslim Subordinate Courts, except that the latter act does not apply where the litigants are natives.

There are, however, two points to be taken into consideration in. the contrary sense:

One is the effect of section 12 of the Courts Ordinance 1931; and the other, which in my view must be construed in a complementary sense to that section, is the very title of these Courts whose procedure I am now considering.

Section 12 of the Courts Ordinance provides that "Subject to the provisions of this Ordinance and to rules of Court, all Courts shall follow the principles of procedure laid down in the Civil Procedure Ordinance 1924 and in the Criminal Procedure Code, so far as the same may be applicable and suitable". Now there are no provisions of the Ordinance appertaining to the points in question beyond those already cited; and I have not been able to trace any rules of court relevant to the point. The last sentence is therefore the determining factor. Its meaning is that Muslim Subordinate Courts may use a different procedure where the Civil Procedure Code is not<br>applicable and suitable. What is that different procedure to be? Presumably one to which they are accustomed and that is Mohammedan law.

In consideration therefore of the following facts:

(i) that these Courts are actually named Muslim Subordinate Courts:

(ii) that the officers who preside over them are qualified in Mohammedan law and have no training in any other civil code;

(iii) that for a great many years these Courts have in substance administered only Mohammedan law in the exercise of their jurisdiction and have known no other code;

(iv) that the Protectorate where they function is in effect a part of the Sultan of Zanzibar's Dominions where Mohammedan law is recognized and practised by subordinate Courts;

I must hold that Mohammedan law is the proper civil code for Muslim Subordinate Courts to apply.

In fact that section 12 of the Courts Ordinance acts as the exception exempting Muslim Subordinate Courts from the provisions of the Civil Procedure Ordinance.

It is, however, surprising that the matter is not more clearly laid down by statute than is provided in the words of section 12 of the Courts Ordinance.

There is in fact no definite provision in the law for the application of Mohammedan law to cases of this kind where the parties are Nor indeed is the matter entirely clear where natives are Arabs. That its application is authorized can only be inferred. concerned. For instance in dealing with a civil case between two pagan natives, a Muslim Subordinate Court would in practice presumably apply Mohammedan law, whereas properly speaking under Art. 7 of the Order in Council 1921 it should apply only pagan native law and custom.

As to the argument that the Indian Evidence Act should apply, it is clear if Mohammedan law is taken as applying and not the Civil Procedure Ordinance, then the Indian Evidence Act cannot apply: Mohammedan law has its own code of evidence which conflicts entirely with that of the Indian Evidence Act.

Having held that the learned Kathi was right in applying Mohammedan law, I have to consider whether he interpreted it correctly.

The witness Ali bin Saleh was not an independent witness; he was an interested one and had acted as agent for the plaintiff. His evidence thus could not be regarded as good and it could not establish the facts alleged merely by being supplemented by the plaintiff's oath. In fact it did not establish the Sh. 200 claimed in my view: in this I concur with the opinion of the learned Chief-Kathi.

There was thus no sufficient evidence as to the Sh. 200.

As regards the Sh. 300, no evidence was offered: the learned Kathi administered the oath to the defendant which the latter refused to take; the oath was then administered to the plaintiff and duly taken. This procedure was correct and the judgment as to the Sh. 300 in. plaintiff's favour must be upheld.

That part of the learned Kathi's judgment awarding Sh. 200 to the plaintiff is set aside and that part awarding Sh. 300 to him is upheld.

The case is remitted to the learned Kathi to administer the oath to the defendant in regard to the Sh. 200 as to whether he is liable in that sum or any part of it. Costs reserved pending the Kathi's report as to this.