All ABDEL GADER, Applicant-Delendant v. EL MUBARAK AHMED HASSAN, Respondent-Plaintiij
Civil Procedurc-s-Witness-s--List of witnesses no/ required at closing of issues-
Statement bll defendant tliat no witnesses would be used=-Subsequetu ap-
plication /0 call witnesses at close of plaintiff's case
1. Where the defendant has stated at the settlement of issues that he
would call no witnesses, but produces witnesses at the bearing, they should
be heard. unless to do so would prejudice the plaintiff. .
2. The provision in section t (a) Civil Justice Ordinance 1.929 that
the the court shall make a note f the evidence which the parties intend
to adduce, does not necessarily e tend to the giving of a list of witnesses;
it is sufficient if enough of a party's case is known to prevent surprise at the
trial.
Civil Justice Ordinance 1929, s. 72 (a).
Revision
May 11, 1939. Flaxman J.: This is an application to reopen
the above suit on the grounds that the defendant had witnesses who
were not heard. The facts are that at he time of settlement of the
issues the defendant, presumably in answer to an enquiry by the
court, stated he had no witnesses to call. At the hearing the plaintiff
opened his case and gave evidence and called four witnesses. The
defendant then gave his evidence, and applied to call a number of
witnesses, who are now stated to have been outside the court and
immediately available. No adjournment was asked for. An objection
by the plaintiff's advocate was upheld, and judgement was delivered,
the learned judge remarking that "It was only after hearing all
that plaintiff and his witnesses had to say, and after waiting for
many months doing nothing, that defendant began to think of bring-
ing witnesses. That was rightly objected to by plaintiff."
It is of course most desirable that a litigant should be fully
heard in his claim or defence, and I am most adverse to refuse any
application that witnesses be heard, unless it is plain that the ap-
plication is made with an intention to delay or prejudice a party.
I do not think there was any prejudice here, as there is nothing to
show that the plaintiff altered his position in any way when he was
informed that the defendant would. call no witnesses. He proceeded
• Court: Flaxman J.
with his case and called his witnesses. and, had the defendant's wit-
nesse been heard, they would have been heard at the proper stage
of the case for the calling of witnesses for the defence. No adjourn-
ment would ordinarily have been necessitated, and no undue delay
would have been occasioned in the disposal of the casco
It must be remembered that at the time issues are framed the
parties are only required to state the claim and defence to the action.
The court examines the parties to see on what questions they are
at variance, and where there are issues of fact, the court shall make
a note as to the evidence they intend to adduce. Civil Justice
Ordinance 1929, S. 72 (2). I do not think this necessarily extends
to the giving of a list of witnesses to be called, It is sufficient if
enough of a party's case is known to the other side to prevent surprise
at the trial. And I do not consider that a party should necessarily
be bound at the hearing of the issues by a statement, made at the
time of their settlement. that he did not intend to call witnesses.
For, after all, the court may call a witness of its own motion, whether
named by the parties or not, where it considers such a step necessary
for the just determination of a suit.
In this case I do not consider the plaintiff was prejudiced by
the defendant's statement at the time the issues were framed, and
no injustice will be done if the defendant's witnesss are heard.
I accordingly return these proceedings to the district judge, Om-
durman, to be reopened and witnesses for defendant heard, with leave.
if necessary, to review the decree dated March 12, 1939.
Application allowed