Case No.:

(HC-CS.270-1958)

Court:

The High Court

Issue No.:

1960

Principles

·  Civil practice and procedure—Evidence—Application for a1Iowanc on commission— Appliuition for amendment of pleadings under First Schedule. Order II, r. 8, Cis ii Justice Ordinance—Capacity of foreign firm to sue after compliance with Registration of Business Names Ordinance and Traders’ Licence and Taxation of Business Profits Ordinance.

The defendants during the hearing of the suit applied for an order allowing evidence on commission of a s itness, a partner of defendants, resident at Assvan, U.A.R. It was admitted that the testimony sought was ‘.s thin the knos ledge of the defendants, who were being called.The defendants also applied for an amendment of pleadings under the Civil Justice Ordinance, lirst S liedule. Order II, r. 8,in order to prove that the plaintiffs were not a person under the Companies Ordinance and therefore lacked the capacity to sue.
Held: (i) That the court was satisfied that the first application was made with the intent of protecting the proceedings and gaining time, and was therefore refused.
(ii) That as an application had previously been made on the me grounds as the present second apple ation though under a different form, and as the present application was very late, and was without merit since it (i) was not necessary for the determination of the real questions in controversy; (2) would displace the piaintiffs’ suit: and (3) was not made in good faith, the proposed amendment was therefore refused.
(iii) That there was nothing in law to prevent the plaintiffs, a foreign firm, from suing in the Sudan through a legally appointed attorney, since they had clone all that was necessary to carry on business cinder the Registration of Business Names Ordinance and the Traders’ licence and Taxation of Business Protits Ordinance.

Judgment

(HIGH COURT)

FUFIRMEISTER & CO. v. ABDEL GHANI ALl MUSA

AND MOHAMED ABDEL GHANI ALl MUSA

(HC-CS.270-1958)

Interlocutory order

Advocates: A. M. Bidjikian and A. Naguib.... for plaintiffs

                   R.Boutros and A. Ibrahim………. for defendants

February 1, 1960. Michel Cotran, Acting J.: —One of the two applica- tions by defendants can be disposed of at once. They seek an order allowing evidence on commission of a witness residing in Aswan. Rawdani Abdel Chani Musa, It is admitted that he is a partner of’ defendants. It Is also admitted that what he is going to testify, namely the alleged can cc of the agreement sued upon,is within the knowledge of the defendants who are being called as witnesses. Learned counsel for defendants, however, says “1 want additional evidence on this point. I can call any number of witnesses to prove the same matter.” In other words, it is not denied that Rawdani’s testimony will be a repetition of the defendants’ evidence and nothing else. I cannot for one moment consider allowing evidence on commission in such circumstances. Aswan is not ver far from Khartoum and the railway fare between the two places is small. If defendants genuinely want the witness, they can easily bring him here. I am definitely of opinion that the application is made with a view to protracting the proceedings and gaining time, and-it is refused.

The second application is for amendment of pleadings. Defendants want to introduce a new issue in order to prove that “plaintiffs are not a person under the Companies Ordinance and therefore they have no capacity to sue on the alleged contract.” I have already ruled at the hearing of January 20, 1960, that it was too late at this stage of the proceedings to raise the matter as to the capacity of plaintiffs to sue. I held that this should have been pleaded from the very beginning and made an issue of law and determined in accordance with section 73, Civil Justice Ordinance. I, therefore, refused to allow questions in cross-examination on this point, being irrelevant.

The present application, is the same as that I have already dealt with, but it is made in a different form, namely as amendment of pleadings under Civil Justice Ordinance, First Schedule, Order II, r. 8. Apart from the fact that the application is very late, I am of opinion that it has no merit and should be refused. In Mulla’s Code f Civil Procedure (9th ed., I954), at page 302, five instances are given -where leave to amend pleadings should be refused. Three of these clearly and distinctly apply to the present application. They are:

(1) Where the amendment is not necessary for the purpose of deter mining the real questions in controversy between the parties, as where it is—

(i) Merely technical, or

(ii) Useless and of no substance;

(2)Where the plaintiff’s suit would be wholly displaced by the proposed amendment;

(3)Where the application for amendment is not made in good faith.”

I need not elaborate on the matter as a glance at the said authority and cases quoted in support thereof clearly show that the court should not allow an amendment of pleadings in a case such as the one before me.

Furthermore, I do not find anything in law to prevent plaintiffs suing in Sudan. They are a foreign firm (not a limited company) and they did all that is legaljy necessary to carry out business here. They registered their firm in accordance with the Registration of Business Names Ordinance and obtained the required Certificate (Exh. P/ and they also obtained a fraders’ Licence under the Traders’ Licence and Taxation of Business Profits Ordinance (Exh. P/38). I see no reason, therefore, why they cannot sue in Sudan -through a legally appointed attorney.

As the, two applications have been dismissed, I shall continue the hearing of the case on February i8, 196o. *

                                                                                      (Order accordingly)

Applications for revision (HC-Revision.78.1 and AC were

Summarily dismissed.