(COURT OF APPEAL)*

MUSEXPORT IN S.P.A. v. AZJZ GHOBRIAL

AC-RE V-89-1966

 Principles

·  Civil procedure-Letter of request—Civil Justice Ordinance, s. 106—Applicable to a party to a suit

According to Civil Justice Ordinance, s. 106 a court may issue a letter of request to examine a party to a suit who is abroad, because the application of the section is not confined to the examination of a witness only.

Judgment

Advocates: Abdel Rahman Yousif for applicants

Abdalla El Hassan and Abdel Wahab

Abu Shakima for respondent

El Fatih Awouda 1. August 28. 1966: —This is an applicatio for revision from the order of His Honour Attieg, Province Judge, sum1 dicrnissing a similar application to him from the order of District Judge, Khartoum, refusing an application to issue a commission or a letter of request to examine a witness resident at Naples, Italy.

Respondent, a merchant of Khartoum, on March 9, 1963, instituted a cuvil suit claiming recovery of a sum of money by way of damages for ‘v of contract on the ground that the goods, tomato paste, shipped by pp!i in pursuance of a c.i.f. contract were not according to descrip

o Applicants contended that the goods were according to description e ime of shipment and that if the goods became defective during curriey they were not answerable for that. After the exchange of

.dir.gs, which were improperly made, issues were framed by the court agreed upon by the parties on February 9, 1963. The burden of proving the fifth and sixth issues lay on the applicant. Hearing was commenced on May 23, 1965 and continued until June 28; 1965when advocate for applicant submitted to the court his application to have the evidence ofmiaseertairied person in Naples taken on commission for the purpose oi proving the sixth issue. His reason for that application is that the value of rl suit is not so high as compared with the expenses likely to be incurred if the witness were to be brought all the way from Naples to the Sudan.

Advocate for respondent in reply maintains:

1. That the application for revision to the Province judge was sum marily dismissed for being out of time;

2. That Civil Justice Ordinance, s. io6, under which thr appi made applies to witnesses and not to parties and person whose evidence is sought to be taken on commission is

That the application to the Province Judge was out “t three grounds for its summary dismissal. This means even if it was in time the learned Province Judge would have dismissee it all the same on any one of the remaining grounds. It is the other ground that we are here considering.

Civil Justice Ordinance, s. 104, reads:

“Subject to such conditions and limitation as may be prescribed, the court may issue a commission (a) to examine any person….’’

Civil Justice Ordinance, s. 106, reads as follows:

“in lieu of issuing a commission, the court may issue aletter of request to examine a witness not within the Sudan.’’

Section 106 does no more than provide an alternative proccuThr o’ ‘: examination of a witness abroad, and I do not think that its nr: i. confined to the examination of a witness in the narrow sense, i, e., other than a party to the proceedings. A witness is a person who mekes a viva voce statement to a judicial tribunai on a question of fact. A party to a suit may give evidence in his own case before a judicial tribunal. Thus the word witness in its wider sense must be taken to in]’i who elects to give evidence in his own case.

However, advocate for applicant stated before us that the person whose evidence he wishes to be taken on commission is either the director of the company or an officer of that company. Neither the director nor au officer of the company is a party to these proceedings; it is the company as a corporate body who is he defendant.

The second point i whether the application to issue a commission is too late to make. I think it is. One of the purposes of pleadings is to narrow the issues in dispute and the purpose of the settlement of issues is to show at an early stage of the proceedings and before the commence ment of the hearing what each party has to prove in order to allow him to prepare the evidence he wishes to adduce. Advocate for applicant knew almost a year before the commencement of the hearing that the burden of proving the fifth and sixth issues was on his client. His application to issue a commission should have been made then or within a reasonable time after the settlement of issues. To apply after one year therefrom amounts to a delay of justice.

One further point. Evidence taken on commission is an exceptional procedure. It is only allowed when the court deems it necessary for the purpose of justice. Civil Justice Ordinance, Ord. VII, r. 2 (2) does not allow such evidence tQ be read as evidence in the suit or form part of the record where’ the other party has not had the opportunity of cross- examining the witness except for special reasons to be recorded. I do not think that in the circumstances of this case that it is necessary to take the evidence of the unascertained witness on commission.

This application is dismissed with costs

Osman El Tayeb J. August 28, 1966: —l agrees