This is an appeal by the plaintiff who was the owner of certain premises of which she sought vacant possession from the defendant who was a monthly tenant. Before instituting the action she had served the tenant with a notice to quit which appears to be in proper form. There was also evidence that the premises had been constructed in 1956. Therefore the premises were not subject to the control of rent legislation.

In the court below the plaintiff gave evidence in support of her case. But in her examination-in-chief her counsel omitted to adduce evidence relating to the notice to quit and the fact that the premises were constructed in 1956.

The defendant was given an opportunity to cross-examine which he did not exercise.

Then in re-examination which the learned Magistrate permitted the plaintiff tendered the following exhibits: —

A notice to quit.

An A.R. card.

A letter from the Town Council dated 6.11.77 proving construction in 1956.

The title deed.

A receipt for assessment.

The learned Magistrate admitted these documents into evidence and marked them exhibits P1, P1A, P2, P3 and P4.

Thereafter, instead of inviting the defendant to cross-examine on these documents the learned Magistrate went on to hold that the evidence adduced by the plaintiff did not show that she was claiming vacant possession and therefore dismissed the claim with costs.

In his Grounds of Judgment, the learned Magistrate states that since the documentary evidence aforesaid was only put in during re-examination and were not properly identified, he, the Magistrate, was not obliged to treat this as admissible evidence which he had to consider.

So he went on to hold that the plaintiff had failed to discharge the burden of proof upon her.

With respect to the learned Magistrate, Section 138(3) of the Evidence Act 1950 Revised Act 56–71 states that, "If new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter."

In this case there was no cross-examination. Therefore it follows that there should have been no re-examination. But in this case further evidence was permitted to be put in by the plaintiff in the shape of exhibits P1 to P4. Since they were admitted as evidence the learned Magistrate was obliged to consider the effect of these documents on the plaintiff's claim.

What happened in reality was not a re-examination but an extension of the examination-in-chief and this of course is permitted by section 138(4) of the Evidence Act.

Having got that far, the learned Magistrate should have given the defendant opportunity to cross-examine the plaintiff upon this additional material.

The record does not indicate that the defendant was given such opportunity.

In all the circumstances I am of the view that the needs of Justice will be met if this case is remitted for a re-trial.

Had the matter been a lengthy one I would have directed the Magistrate to continue with the hearing and after furnishing the defendant with the opportunity to cross-examine, to address his mind to the effect of the documentary evidence on the action.

However the facts of this case are simple and the evidence is quite short. The parties should not be prejudiced by a re-trial and I accordingly order.

In my discretion I also order that each party will bear his own costs both here and in the court below in so far as it relates to the previous hearing.