(HIGH COURT)

CHRISTOS SIMOS v. STELIOS FARDOULIS

HC-CS355-1956

Principles

·  Civil Procedure—Venue—Forum non conveniens—Sale of goods—Defence based on local evidence—Civil Justice Ordinance 1929, S. 49

Civil Procedure—Venue—Forum non conveniens—Sale of goods—Defence based on local evidence—Civil Justice Ordinance 1929, S. 49

Judgment

An action bought in Khartoum for balance of account for goods so and delivered in Juba. on a contract made there, is a proper case for transfer, where defendant’s witnesses were in juba and the trial would require local evidence.

Advocates: Mubarak Zarroug ....................... for plaintiff

E.M. Kronfli………………………………. for defendant

R. A. Muhammadi D.J. November 10, 1956 :—This is a case of balance of account, where defendant, a merchant in Juba, has applied for transfer of the case against the objection of plaintiff, a merchant in Khartoum.

The defendant states that in this case he and all his witnesses are in Juba and that the cause of action itself was concluded there. He maintains that it will be rather inconvenient for the defence to bring all his witnesses here. Further, he asserts that the plaintiff has his agent in Juba.

Plaintiff, objector to the above application, denies point blank that he has his agent in Juba and affirms that he will as a matter of fact suffer inconvenience, as his best witnesses are all here and will be required to dash to Juba in case of transfer.

The only issue to be decided is whether this case should or should not be transferred to Juba.

The general principle of transfer is that the plaintiff, as arbiter litis or dominus litis, has the right to choose any forum the law allows him. yet this rule is subject to many qualifications, such as the injustice and hardship involved in the case because of non-transfer. Contrary to the misconception of the learned counsel for the defendant, mere balance of convenience to either party is not the paramount consideration. See Ruchi Rum Khattur v. Sarah Narain Shah and another (1928) A.I.R. Lahore 159.

The burden to make out a case lies on the applicant seeking transfer, who should satisfy the court of any hardship and injustice involved in the case. In this case admittedly the cause of action was concluded in Juba, as the goods were sold and delivered there. The defence will obviously turn on the local evidence. Therefore, I am of the opinion that this is a fit case for transfer.