Patel v Hirji and Co. (C.A. 17/1932.) [1932] EACA 8 (1 January 1932)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya), LAW, Acting C. J. (Uganda), and THOMAS, J. (Kenya).

## KASHIBHAI DUNGERBHAI PATEL (Appellant) (Original) second Defendant)

$v$ .

## DEVRAJ HIRJI & CO. (Respondents) (Original Plaintiffs). C. A. $17/1932$ .

## Evidence Act, Section 165—power of judge to discover or obtain proof of relevant facts by questioning any witness or party at any time in any form.

$Hetd$ (13-12-32): That the expert advice sought by the trial judgeshould have been sought in such a way as to allow the parties to hear the expert evidence for the purposes of cross-examination.

· Daly for Appellant.

• Mangat for Respondents:

The appeal was from a judgment of Lucie Smith, J., in the Supreme Court of Kenya in favour of the plaintiff. Plaintiff<sup>\*</sup> claimed against defendent for Sh. 5,000 on a demand promissory note dated 22nd November, 1930, with interest and costs. The promissory note was signed "Rambhai Dahyabhai & Co., K. D. Patel, sole proprietor." The defence denied indebtedness to the plaintiffs and alleged that the defendant (the present appellant) did not make or sign the promissory note sued upon.

At the hearing the plaintiff swore that the promissory note was signed by second defendant in his presence. Defendant denied having done so and produced various specimens of hissignature.

The following extract from the trial Judge's judgment was taken exception to by appellant: "Acting on Mr. Daly's suggestion I called in the assistance of Mr. Magner, who had enlarged photographs made of the various signatures. Careful study and comparison of those enlargements leave little doubt that the signature on the promissory note is in a disguised hand, while the whole construction of that signature shows that it was written by the person who produced the specimens, i.e., the defendant."

Daly.—Order XVI, Rule 4, provides for the evidence of witnesses being taken orally in open Court. Coulson $v$ . Disborough (1894) 2 Q. B. 316; in re Enoch and Zaretzky, Bock & Co.'s. Arbitration (1910), 1 K. B. 327. Evidence Act, Section 165 does not authorize judge to take expert advice unless parties are present. Gopal Lall Seal v. Nanik Lall Seal (1897), 24 Cal. 288.

Mangat.—Judge is entitled to study and make comparison for his own information and not necessarily in the presence of parties. Evidence Act, Section 73.

Daly, in reply, submitted that the judgment was entirely based on the report of Mr. Magner, the expert called in Chambers by the trial Judge.

JUDGMENT (delivered by Sir Jacob Barth):-

This appeal is based on the fact that the learned trial Judge founded his conclusions that the promissory note on which the respondent sued was signed by the appellant on a report and photographs supplied by Mr. Magner. Mr. Magner was not called as a witness and neither side had the opportunity of crossexamining him. It is admitted by Mr. Daly, who appeared for the appellant defendant at the trial, that he suggested that the assistance of Mr. Magner might be obtained, but did not intend. to suggest that Mr. Magner's assistance should be obtained in the way it was without any opportunity of hearing his evidence or of cross-examination.

The Court could have called Mr. Magner if both sides agreed to that course.

It would appear from the judgment that Mr. Magner's opinion as to the identity of the person who signed the promissory note with that of the person who wrote the specimen signatures in Court, i.e., the appellant, was the deciding factor which caused the learned trial Judge to find for the respondents.

In my opinion the appeal succeeds and a new trial should be had. The appellant to have the costs of the appeal; the costs of the hearing to follow the event in the new trial.