Said and Others v Ghulum (Civil Appeal No. 21 of 1946) [1947] EACA 8 (1 January 1947)

## **COURT OF APPEAL FOR EASTERN AFRICA**

Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and BARTLEY, J. (Kenya)

## MASOOD BIN SAID, Executor of SALIM BIN MOHAMED GHULUM (Deceased), and HAFSA BINTI SAID, Appellants (Original Defendants and Respondents)

#### ν.

### SAID BIN SALIM BIN MOHAMED GHULUM, Respondent (Original Plaintiff and Appellant)

# Civil Appeal No. 21 of 1946

#### (Appeal from decision of H. M. Supreme Court of Kenya)

Evidence—Proceedings in Kathi's Court—Rules of evidence applicable—Whether Indian Evidence Act or Mohammedan rules of evidence-Indian Evidence Act, s. $2(1)$ .

The respondent instituted proceedings in the Kathi's Court against the appellants, claiming a declaration that he was the son of his deceased father and sole heir to his estate after the share of his mother. Applying Mohammedan rules of evidence the Kathi rejected as inadmissible the evidence of all the witnesses of the respondent and dismissed his claim. On appeal to the Supreme Court the Kathi's decision was reversed and the appellants appealed to the Court of Appeal for Eastern Africa.

Held (14-11-47).—(1) Since the application of the Indian Evidence Act to Kenya the rules of evidence governing proceedings in the Kathi's Court are no longer Mohammedan rules of evidence but those contained in the Indian Evidence Act.

(2) The application to natives of Indian Acts Ordinance (Laws of Kenya, Cap. 4) does not affect the application of the Indian Evidence Act which governs all proceedings before the Courts of Kenya whatever the classes of persons involved.

Appeal allowed and suit referred back to the Kathi's Court with directions to consider the evidence of all the witnesses for the respondent.

Khamis bin Ahmed v. Ahmed bin Ali and others L. R. C. of A. for E. A. (1934) Vol. 1 p. 130 and Athman bin Mohamed v. Ali bin Salim 6 E. A. L. R. p. 91 overruled; Wallace Johnson v. The King (1940) A. C. 231 followed.

#### Christie for the appellants.

#### R. M. Doshi for the respondent.

NIHILL, C. J.—In writing this judgment I have had the great advantage of having before me the judgment in this appeal just delivered by my brother the Chief Justice of Tanganyika and with which I am in entire agreement. I have reached a conclusion similar to his that this case must be remitted back to the Kathi who tried it for his report on certain evidence which he admitted but did not consider. I do not propose to comment on any other matter argued before us other than what is the crucial issue in this case, namely, whether the Kathi was right to govern himself in the reception of evidence by rules emanating from Mohammedan law to the exclusion of the Indian Evidence Act. I could have wished that this question had been much more fully argued before us than was done and that we had had the assistance of the Attorney General as amicus curia, for as my brother has remarked its determination raises questions of great importance to the Muslim community. I am well aware that the conclusion this Court has reached may have serious and possibly embarrassing repercussions on the administration of justice in Muslim Mohammedan Courts in the coastal district of Kenya, but that is a matter which if it is thought expedient must be set right by the Legislature. The duty of this Court is to declare the law as it is, not as to what it might be or might more conveniently be.

I agree with the learned Chief Justice of Tanganyika that this question has never been decided on its merits by this Court. It is, however, a question which has from time to time been raised in the Supreme Court of Kenya and on which there are contradicting decisions. See Hussein bin M'nasar v. Abdulla bin Ahmed (XVII K. L. R. 95) and Bahmishi v. Basawadi (XX K. L. R. 34). In the latter case Thacker, J., was of the same view as this Court in the present case, but he did not consider the effect, if any, of the Application to Natives of Indian Acts Ordinance (Cap. 4 of the Laws of Kenva) Vol. I. page 13.

I must confess that I have found the interpretation of this loosely drafted Ordinance a matter of extreme difficulty. It is, of course, a very early enactment when probably the Colony had not the advantage of obtaining the services of persons skilled in legal draftsmanship. Be that as it may, the Ordinance certainly in its terms resembles more a Government minute than an Act of a Legislative body. It is to be hoped that one outcome of the present appeal may be to draw attention to the necessity for its revision. Meanwhile, I am completely persuaded that the view taken by my learned brother that the Ordinance cannot be interpreted as affecting the application of the Indian Evidence Act to the reception of evidence before any tribunal which constitutes a "Court" under the Statute<br>Law of the Colony is the correct one. Any other view would completely disorganize the administration of justice.

Our learned brother Bartley, who sat with us at the hearing of this appeal and who is prevented by illness from delivering a judgment, has read the judgment delivered by the learned Chief Justice of Tanganyika and has expressed his concurrence.

SIR G. GRAHAM PAUL, C. J.—This appeal raises questions of great importance not only to the parties but to the whole Muslim community.

The appellants, who are the executor and the widow of the late Salim bin Mohamed Ghulum, were the original defendants in the Kathi's Court at Malindi in Kenya Colony in a suit brought by the present respondent as plaintiff claiming a declaration that he is a son of the deceased Salim bin Mohamed Ghulum and sole heir of the estate of the said deceased after the share of the deceased's widow. In the Kathi's Court, by judgment dated 25th April, 1945, the present respondent's claim was dismissed, the Court declaring that the respondent is not the son of the deceased Salim bin Mohamed Ghulum, hereinafter referred to as "the deceased".

The facts material to the decision of this case are within a very small compass. It is common ground that the respondent is the son of Salmo binti Said bin Masood Riyami, who was at one time the wife of the deceased. Salmo gave evidence in the Kathi's Court in support of the respondent's claim, but in the judgment of that Court we find at the outset the following ruling:

" $\dots$ the first witness for the plaintiff being the mother of the plaintiff I do not admit her evidence as it is not admissible under Mohammedan law. The mother of the plaintiff is the origin or cause of this case and I cannot find favour of admitting her evidence.

The second witness for the plaintiff, Mohamed bin Amer, I do not admit his testimony as his evidence is circumstantial and not on facts. He only heard the paternal uncle of the plaintiff's mother. Circumstantial evidence of one witness only is not enough. There must be two male witnesses. Therefore I do not admit his evidence.

The third witness for the plaintiff, Aziz bin Salim, I cannot admit his evidence as it is not one of fact; he only heard the mother of the plaintiff and it is only hearsay. Considering that the mother is the origin of this case the evidence of Aziz bin Salim is not admissible at all in this case as the mother cannot give evidence in favour of her offspring."

Upon these rulings the Kathi's Court dismissed the respondent's claim. The respondent then appealed to the Supreme Court which allowed the appeal, holding that the respondent was entitled to the declaration sought. From the judgment of the Supreme Court the appellants have appealed to this Court.

The first point that occurs to me about the judgment of the Supreme Court is that there is a very material error in the first paragraph from which I quote:—

"It is not disputed that the mother of the plaintiff was the lawful wife of the deceased Salim bin Mohamed Ghulum and that the plaintiff was born to her. The question arises whether the plaintiff is the lawful son of the above-named deceased. There is, according to Mohammedan law, a legal presumption that he is, but that presumption may be rebutted and the burden of rebutting it is upon the defendants."

What is admitted is that the respondent's mother was at one time the lawful wife of the deceased Salim bin Mohamed Ghulum. What is not admitted is that the respondent's mother was the lawful wife of the deceased at the material time, namely, the date of the conception of the respondent. Upon that material issue the onus of proof was upon the respondent and only if and when he successfully discharged that onus of proof would arise the legal presumption that the respondent was the son of the deceased.

Whether the respondent discharged that preliminary onus is of course a question of fact to be decided on the evidence of the two parties and their witnesses. The decision of that question of fact was of course a matter for the trial Court in the first instance. The trial Court rejected as an incompetent witness the respondent's mother, the most important witness for the respondent. The trial Court also rejected as inadmissible the evidence of the other two witnesses for the respondent. In short, for one reason or another, reasons of law, the trial Court refused to consider any of the evidence for the respondent. The learned Judge in the Supreme Court held that the trial Court was wrong in rejecting the respondent's evidence, and, as it appears to me, the proper order to follow such a conclusion was an order sending the case back to the trial Court with a direction that the evidence for the respondent was admissible and must be given due consideration.

Before making such an order, however, there is first to be considered and decided a question raised before this Court, namely, whether the proceedings in the Kathi's Court are to be governed by Mohammedan Rules of Evidence or by the provisions of the Indian Evidence Act.

The Indian Evidence Act has been applied to Kenya. It is a comprehensive Code of the Law of Evidence and section 2 (1) of the Act specifically repeals:—

"All rules of evidence not contained in any Statute, Act or Regulation in force in any part of British India."

It is not suggested that the Mohammedan Rules of Evidence are contained in any Statute, Act or Regulation so they are included in the repealed as clearly as the English language can do so. This act came into force in India in 1872, and in the fifth edition of Wilson's "Anglo-Muhammedan Law" at p. 27 there is an important historical note which may be usefully quoted: -

"Hence the famous Regulation II of 1772, by s. 27 of which it was enacted that 'in all suites regarding inheritance, succession, marriage and caste, and other religious usages or institutions, the laws of the Koran with respect to Muhammedans, and those of the Shasters with respect to Gentoos (Hindus), shall be invariably adhered to. Outside these specially reserved topics, the scheme of Warren Hastings afforded no general indication of the law to be applied by the Courts under the Company's control, beyond the fact that Muhammedan law officers were attached to all of them, original and appellate, civil and criminal, to advise on questions of law. Criminal proceedings in particular were assumed to be governed by the Shariat (irrespective of the religion of the offender) unless and until the Company's Government should think fit to order otherwise. Not till 1790 was this jurisdiction withdrawn from the Nazim; and although from that date the system was gradually anglicized by successive regulations, the Muhammedan element did not entirely disappear till 1862, when the Penal Code and the first Code of Criminal Procedure came into force, nor as regards rules of evidence till the passing of the Indian Evidence Act in 1872."

In India the result of the passing of the Evidence Act was the disappearance of the Mohammedan rules of evidence which were replaced by the provisions of the Evidence Act. I am quite unable to see any reason why in Kenya when the identical Act was applied the result should be in any way different.

Upon the express provisions of the Act I find no difficulty whatever in holding that the rules of evidence governing the Kathi's Court at the date of the trial were no longer the Mohammedan rule of evidence but those contained in the Evidence Act.

Against that view we have been referred to the case of *Khamis bin Ahmed v*. Ahmed bin Ali and Others (L. R. C. of A. for E. A. (1934), Vol. I, p. 130). That was a decision of this Court in second appeal from the Kathi's Court in a claim of the appellant to be the legitimate son of a particular man. The question of the applicability of the Indian Evidence Act was raised and the judgment deals with the question as follows: -

"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 Kenya 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."

From that quotation taken from the judgment it is clear that this Court in Khamis bin Ahmed's case did not consider the question on its merits but simply followed the judgment in Athman bin Mohamed's case. This I think was rather unfortunate for the reason that in Athman bin Mohamed's case the point as to the applicability of the Indian Evidence Act was never even specifically raised, much less considered on its merits. In these circumstances I consider that this question now raised specifically in the present case has never been decided by this Court on its merits and it is therefore open to us to decide it now on its merits.

As I have indicated I find no difficulty in deciding the question on the terms of section 2 (1) of the Act. I note that in the case of *Khamis bin Ahmed* the very definite terms of that sub-section were apparently not brought to the notice of the Court. The judgments in the case of Athman bin Mohamed do not even refer to that sub-section or indeed to the Act at all.

Also, the case of *Wallace Johnson v. The King* (1940), A. C. 231, was not, and of course could not be, before the Court in the case of Khamis bin Ahmed. That case seems to me of importance in all questions as to the applicability of local enactments giving a complete statement of any branch of law. The Evidence Act is obviously intended to contain, as far as possible, a full and complete statement of the law of evidence in Kenya. It must therefore, in my view, on the authority of Wallace Johnson's case, be construed in its application to this case "free from any glosses or interpolations derived from any expositions, however authoritative" of the Mohammedan rules of evidence.

In my opinion therefore the Indian Evidence Act governed the trial Court in this case on all questions as to rules of evidence. It follows therefore that the rulings of the trial Court which I have quoted, being based entirely on alleged

Mohammedan rules of evidence were entirely on a wrong basis. Under the Evidence Act the present respondent's mother was a competent witness, and the evidence of the other two witnesses for the respondent was admissible.

For these reasons I would allow the appeal, set aside the orders of the first appellate Court and of the trial Court, and under Rule 18 of our Rules remit the case to the Kathi who tried it for a report on the whole case, his report to be based on the evidence taken before him, subject to the direction that the respondent's mother was a competent witness for the respondent, that the evidence given by the other two witnesses for the respondent was admissible; and that due consideration must be given to the evidence of all three witnesses for the respondent as well as to the evidence of the appellants' witnesses.

In the direction to the Kathi I would include the following note of questions to each of which an answer is desired in the report, together with the reasons for the answers:-

- (1) Is the Kathi of opinion on the evidence before him that the respondent was born on a date either before the divorce of the respondent's mother from the deceased or before the expiry of 280 days from the date of the divorce? - (2) What in the opinion of the Kathi are the requirements of Mohammedan law as to disavowal of paternity by the deceased? - (3) Is the Kathi of opinion on the evidence before him that the disavowal of the respondent by the deceased complied with the requirements of Mohammedan law as to disavowal?

I would allow the appellants their costs in this Court and in the first appellate Court—the costs in the Kathi's Court to abide the event.

If it should happen that the Kathi who tried this case originally is no longer in office then there would have to be a retrial *de novo* in the Kathi's Court by his successor who, for his information, should have a note of the views of this Court as to the questions involved in the decision of the case.

Before leaving this case I find it necessary to refer to a point which was not put forward in the arguments before us in this appeal, but which has been mentioned in our consideration of this appeal, namely, the effect of the Application to Natives of Indian Acts Ordinance (Cap. 4 of the Laws of Kenya, Vol. I. p. 13). Sections 2, 3 and 4 of that Ordinance may be quoted: $-$

"2. The provisions of all Indian Acts already applied or hereafter to be applied in the Colony shall apply to natives to the extent herein provided or as may be expressly declared by Ordinance but not otherwise.

3. The following Indian Acts as amended from time to time are hereby extended to natives:-

The Land Acquisition Act, 1894.

The Explosives Act, 1884.

The Petroleum Act, 1886.

The Telegraph Act, 1885.

The Stamps Act, 1879.

The Post Office Act, 1898.

4. The provisions of all other applied Indian Acts shall extend to natives in so far as they refer to the following matters: —

The protection of life and property.

The maintenance of order.

The collection and payment of revenue fees or charges either generally or locally.

The Post Office.

Railways and tramways.

Telegraphs."

I only desire to say in regard to this Ordinance that in my view it has and can have no application whatever to the Indian Evidence Act for the reason that that Act applies to Courts only and not to persons. It applies to "all judicial proceedings in or before any Court". Every Court is bound to give effect. to the provisions of the Act in all proceedings before it. The Evidence Act does not deal at all with any questions of the territorial or personal jurisdiction of any Court. These are matters for other Legislation, e.g. Courts Ordinances, etc. If the Legislature wishes to exclude from the jurisdiction of any Court any class or classes of persons, e.g. "natives", it may of course do so by appropriate Courts Ordinances, but once a Court is given jurisdiction over any particular class or classes of persons then any member of such class or classes is entitled to insist that the Court shall conduct its judicial proceedings in accordance with the Indian Evidence Act and the Court is bound to do so. Cap. 4 in my view applies only to Indian Acts which enact that persons shall do or abstain from doing certain things. With regard to that class of Act it is quite feasible to enact that it shall not apply or extend to certain classes of persons, and the Acts specified in section 3 of Cap. 4 are Acts within that class. As regards the Indian Evidence Act it would of course be quite conceivable and feasible to enact that it was not to apply or extend to certain *Courts* or classes of *Courts*. The Indian Evidence Act does not enact that persons shall do or abstain from doing anything. It lays no duty, prohibition or restriction upon persons, so it would be absurd and meaningless to enact that it was not to apply or extend to a particular class of person. For these *a priori* reasons in my opinion Cap. 4 has no application at all to the Indian Evidence Act.

The Kenva Supreme Court has, of course, consistently acted on that view. It has consistently regarded itself as governed by the Indian Evidence Act in all cases, civil and criminal, whatever the class of person involved. What nonsense and absurdity would result from any other view. In a civil suit between nonnative and native could it be suggested that the Indian Evidence Act applies to the evidence of non-native witnesses but not to that of native witnesses in the same suit. Where a native party called a non-native witness would the Indian Evidence Act apply to that witness' evidence? In suits between native and native what law of evidence could the Supreme Court apply? These are just a few illustrations, which I find completely convincing, of the absurdity of the suggestion that Cap. 4 applies to the Indian Evidence Act. I reject that suggestion without hesitation both upon the *a priori* reasoning which I have indicated and upon consideration of the ludicrous practical situations which would follow on the acceptance of the suggestion.

$\overrightarrow{f}$