(COURT OF APPEAL)*

BROWN INTERNATIONAL INC. v. REPUBLIC OF IHE SUDAN

AC-REV-491-1966

Principles

·  Civil Procedure__ Jommissjon or letter of request—civil Justice Ordinance, Ord. VIII, r. 1—Can be issued after closing of evidence of both parties and before passing a decree

Civil Justice Ordinance, Ord. VIII, r. 1, gives the court Wide discretionary power to grant or refuse the issue of a commission or letter of reque at any stage of the proceedings before passing a decree, eg, court may issue cornn or letter of request after closing of evidence of both parties and before passing a decree.

Judgment

Advocates: Abdel Wahab Mohanied Abdel Wahab ... for appilcants

Osman Khalid Mudawj for Attorney General for respondents

El Fatjji Awouda 1. December 7, 1966: —The court below on the application of respondent granted the issue of a letter of request to examine a witness, namely, Mr. Gwatkin, who is residing in London. It is from that order that this application for revision lies.

The learned advocate for applicants maintains that to grant the commission after the close of the evidence of both parties to the suit, and after the application for the same purpose has before been made by respondents, but abandoned, amounts to abuse of process.

The learned Province Judge in his ruling referred to the English and Indian rules governing affidavit of documents, and sought to depart therefrom, prompted in so doing by the desire to do justice by invoking the inherent powers of the court vested by Civil Justice Ordinance, s. 226, and by the exercise of that inherent power granted the letter of request.

As it appears to me the issue here does not relate to the question of affidavit of documents nor to whether evidence should be allowed to be adduced to contradict the affidavit of documents made by the other party. It relates to whether it is proper in the circumstances of this case to issue a letter of request to examine Mr. Gwatkin as to whether he gave the information contained in an alleged affidavit, copy of which is in the posse of respondents.

To grant or refuse a commission or letter of request is a discretionary power vested in the court. Civil Justice Ordinance, Ord. VIII, r. 1, gives the court a very wide discretion with regard to the time- when the court may issue a commission for the examination of a witness. It may do so at any time before passing a decree. If the trial court does issue the commission, then an appellate authority will not interfere with the exercise of that discretion unless it is satisfied that it was not exercised judicially. If the court is convinced that the evidence sought to be obtained on commission is relevant and necessary for a party’s case, the exercise of the discretion is not necessarily improper nor does it amount to abuse of process merely because it was made at a very late stage of the proceedings or because a similar application has once before been made but not pursued, so long as the letter of request has been issued before the decree is passed. To my mind the evidence asked for is both relevant and necessary for respondent’s case. The learned Pro vince Judge was in the circumstances correct in issuing the letter of request, not by virtue of his inherent powers under Civil Justice Ordinance, S. 226, but in exercise of his discretionary power under rule aforementioned.

The other ground of objection based on a claim of privilege is, I think, superfluous.

This application for revision should be dismissed with costs.

Osman El Tayeb J. December 17, 1966: —I agree. Order to issue accordingly.