AKBAR S.P.J.—Sinnetamby v. Shanmugam.
1936Present: Akbar S.P.J. and Koch J.
SINNETAMBY v. SHANMUGAM.404—D. C. Jaffna, 26,893.
Evidence—Removal of Judges pending suit—Judge acting on evidence recorded—Decision depending on the credibility of witnesses—Irregular pro-cedure—Courts Ordinance, s. 89.
Where a Judge is removed pending a suit and another Judge takes upthe case, he should not act on the evidence recorded except where suchevidence is of a formal character. He should summon the witnessesafresh where the decision depends on the credibility to be attached tothem.
Samaraweera v. Jayawardene (4 N.L.R. 106) followed.
^^PPEAL from a judgment of the District Judge of Jaffna.
H. V. Perera (with him Nadesan), for plaintiff, appellant.
Nadarajah, for defendant, respondent.
May 13, 1936. Akbar S.P.J.—
This is an action for the recovery of a sum of money on a promissorynote, endorsed to the plaintiff for collection. The parties went to trialon several issues of fact, namely, whether the note was given in blank assecurity for a cheetu club transaction, whether the payee had authorityto fill up the note, and whether any money was due on the note.
A trial of this sort must depend to a large extent on the impressioncreated in the mind of the Judge by the evidence at the time the witnessesgave the evidence. But what happened in the trial of this case wasextraordinary. The trial began on June 8, 1931, before one Judge, whenthe issues were framed and the defendant gave evidence. He was partlycross-examined that day and the cross-examination was continued on thesecond day of trial, namely, June 30,-1931.
On the third day of trial, viz., April 29, 1932, the case came on beforeanother Judge, who recorded that the parties had agreed that he should
AICBAR S.P.J,—Sinnetamby v. Shanmxigam.
proceed with the trial on the issues framed by his predecessor and that heshould act on the evidence already recorded. The defendant was furthercross-examined and his case closed. The plaintiff then gave evidence andhe was examined and cross-examined on three further dates. The trialwas resumed on August 24, 1934, oefore a third Judge who continued thetrial, with a brief record that the parties had agreed to his reading theevidence already recorded and then finishing the trial.
The plaintiff was briefly cross-examined further before him and twoother witnesses who had witnessed the note were also examined beforehim. The judgment appealed from is that of the third District Judge.He has given his judgment without having had an opportunity of hearingthe defendant and also the plaintiff for the greater part of his evidence.
I cannot understand how any Judge can decide the questions of fact arisingin this trial on the procedure adopted in this case. The two later Judgesseem to have acted on the bare agreement of the parties. Under section89 of the Courts Ordinance (even if it did apply to a change of Judgesof the kind which occurred in this case) a discretion is given to the secondJudge either to act on the evidence recorded and to record further evidenceor to resummon the witnesses already examined and commence afresh.The proceedings show that the succeeding Judges in this case did notexercise their minds on this point but simply continued the trial on theagreement of the parties. In the case of Samaraweera v. Jayawardene1Bonser C.J. commenting on a similar procedure adopted in that case saidas follows : —“ When the case got back to the District Court anotherDistrict Judge was sitting. He, instead of hearing the plaintiff and hiswitnesses over again so that he might be able to form an opinion as totheir veracity, took up the case where it had been left by his predecessorand heard the defence, and then dismissed the action. Now, in takingup the case and acting on the evidence already recorded, the DistrictJudge was within the powers conferred upon him by section 89 of TheCourts Ordinance, which expressly provides that this course may be takenin the case of the removal of a Judge while the suit is pending; but thatought never to be done except in the case of merely formal evidence.In a case such as this, where the decision depends altogether upon thecredit to be given to the plaintiff and his witnesses, it is .preposterous fora Judge who has not heard the plaintiff and his witnesses to decide ontheir veracity and trustworthiness, when he has the means in his power ofjudging for himself by calling and examining them. ”
The judgment of the District Judge in this case shows what an impossibletask it was to which he had addressed himself. In these circumstancesit is impossible for Court of Appeal to affirm or reverse the judgment ofthe third trial Judge.
The judgment and decree will be Set aside arid the case sent back for anew trial on the issues framed and the costs incurred so far will be costsin the cause. I wish to add that .it is possible that the agreement thatthe Judge should act on the evidence already recorded by his predecessorsdid actually alter the position of the Judge into that of. an arbitrator, butas this point was not argued before us, I express no opinion on it.
< •Sent back.
1 4 N. L. R. 106.
SINNETAMBY v. SHANMUGAM