(COURT OF APPEAL) *

MOBIL OIL CO. (SUDAN) LTD. vs. MOHAMED BAYOUMI EL SAYEH

AC-Rivision-70-58

Principles

  Practice—Costs—witnesses’ expenses

       Where a witness traveled by ‘plane from Port Sudan to Khartoum to give evidence and spent two nights at the Grand Hotel the District Judge allowed £$ 25as cost of the air ticket and £S.6 as hotel expenses. On revision the High Court Judge reduced the total amount to £S.5.                                                                                                          
             Held:—The costs of witnesses should not be taxed upon a fixed general rule, but the Court should take each case into consideration. Traveling and hotel   

Judgment

* Court: Abu Rannat C.J., Abdel Rahman El Nur P.J.

expenses are in the discretion of the Taxing Master. The Commissioner for Railways vs. O’Rourke [1892] A.C. 594 and EastStonehouse Local Board vs. Victoria Brewery [1895] 2 Ch. 514 applied.                                     

Decision of High Court Judge set aside and decree of District Judge restored.

Revision

Advocates: E. M. Kronfli …………………..for applicants

                    Sayed Husni …………………...for respondent

  13th January 1959. Abu Rannat C.J.: —The facts which are the subject of this revision are short and simple. The plaintiff Mohamed Bayoumi El Sayeh brought an action against the defendants (applicants) claiming £S.225 being overtime, transport and house accommodation while he was employed by the defendants at Port Sudan.

   The issues were settled on 9th June1957 in the presence of plaintiff and the date for hearing was fixed for 16th October1957.                                                                       

    On 16th October 1957 the plaintiff failed to appear, but defendants appeared through their advocate Mr. Kronfli. The defendants brought their Branch Manager from Port Sudan by ‘plane solely to give evidence in this case. The defendants denied the whole claim and the suit was dismissed under section 65 of the Civil Justice Ordinance.

The Court then ordered the plaintiff to pay the following amount in respect of costs:

                    £S.35.000 made up as follows: —

                       £S.25 price of ticket between Khartoum and Port Sudan for the                                         witness

                       £S.6   for two nights’ stay in the Grand 1-lotel for the same witness.                   7.500 advocate costs 

                                                                                                   ------------------------.

                          £S.38.500                                                                                                                             

      The plaintiff then applied for revision to the Judge of the High Court against the order for payment of the £S.31 as witness expenses. The learned Judge decided that only £S.5 be granted as witness expenses, and expressed the view that in his opinion this figure is reasonable. The defendants submitted this application for revision against this decision of the Judge of the High Court.                                                            

       Advocate Kronfli on behalf of the applicants submits that the presence of the witness was necessary for the disposal of the suit, and that the amount ordered by the District Judge was reasonable. He referred us to passages in the White Book in support of his submission.                                                                                                                                

      Advocate Sayed Husni for the respondent (plaintiff) contends that as the onus of proof of all the issues was on the plaintiff, the defendants need                                                    

not bring a witness from Port Sudan, unless and until they are called upon to enter on their defence, or that the said witness’s evidence can either be taken on commission or sent in an affidavit from Port Sudan.                                                                  

    As we see it, this application must be allowed. The general rule is that costs must follow the event unless there are good reasons for depriving the successful party of such costs, and anything which places on the defendant a burden which he ought not to bear is good cause for awarding him costs                                                                       .

    The leading case on the expenses of witnesses is The Commissioner for Railways vs. O’Rourke and another [1896] A.C. 594. The case was decided by the Privy Council. The principle laid down in that case is that the costs of witnesses should not be taxed upon a fixed general rule, but the Court should take each case into consideration, and determine what was reasonable allowance for the coming, going and attendance of each witness whom it did not consider to have been called unnecessarily, having regard to the character of his evidence and the probability of having to be recalled.

    The defendants were bound to secure the presence of this witness as he is the only person who could rebut the evidence which is likely to be led by the plaintiff, and the claim for the ticket price is reasonable. As to the £S.6 for the hotel, it has long been established that traveling and hotel expenses of witnesses are in the discretion of the Taxing Master (East Stonehouse Local Board vs. Victoria Brewery [1895] 2 Ch.514).

    There will be a decree setting aside the decision of the Judge of the High Court on revision and restoring the decree of the District Judge dated 16th October 1957 with costs.                                                                                                                              

Abdel Rahman El Nur: —I concur.      

                                                                                                         (Revision allowed)