Case No.:

(HC-CS-619-1958)

Court:

The High Court

Issue No.:

1960

Principles

·  Sale of Goods—Where machinery alleged to have broken, onus of proof of defect

·  Civil Practice and Procedure—Power to arrest witnesses—Conclusions to be drawn from failure to appear

(i) In a contract for the sale of machinery, the onus of proving that the machinery has an inherent defect, and has not broken through his own negli gence, lies with the purchaser.

(ii) A court can arrest witnesses where justice so demands, but will not easily do so in civil litigation, Instead, it will treat their absence as an admission of the facts alleged by the other side.

Judgment

(HIGH COURT)

SARKIS IZMIRLIAN v. MOHAMED EL HASSAN HAMZA

(HC-CS-619-1958)

Action

Advocate: Ahmed Suleiman……… for plaintiffs

March II, 1960. T. Cotran Acting J.: i—This suit was lodged on August 28, 1958. Defendant was summoned to appear on November 30, 1958. He failed to appear and cabled that he was sick. The defendant was then summoned to appear on February 2, 1959. He failed to appear and a default decree was passed. Advocate Abdel Wahab El Khidir, on behalf of defendant, then applied to the court to set aside the default decree. The application to set aside decree was granted and defendant was sum moned for April 29, 1959, when he appeared in person and denied that he authorised Advocate El Khidir to represent him. He was asked by the judge to reply to the statement of claim, which was a claim on a current account between the parties. Defendant denied that he owed plaintiffs any money on a current account and issues were framed accordingly. The case was fixed for May 26, 1959, for hearing but neither party was ready. Hearing was adjourned till July 20, 1959. Defendant did not appear and sent a cable that he was sick. The plaintiffs’ case finally started on November 30, 1959. It appeared that defendant bought from the plaintiffs machinery and goods and he left a debit balance of £S.473 The defendant’s current account was stated in 1954 and he was supposed to settle in 1955. The defendant in his evidence admitted a balance of £S. and claimed that sothe of the machinery had broken and had to be returned. He said there was a guarantee for two years, but no such guarantee was produced. The case was then adjourned, to hear defendant’s witnesses, to December 30, 1959. On this date the defendant’s witnesses failed to appear and asked for an adjournment. The court gave them a further two and half months until March 10, 1960. They failed to appear saying that they were busy.

Advocate Suleiman tells the court that they should be arrested. The court in civil cases does not like to arrest witnesses All of these witnesses are friends of defendant, and, as is clear from the telegrams, they all act in concert I am at a loss to understand what these witnesses are expected to say The court therefore refuses a4journment Judgment is given in plaintiffs’ favour on the merits. This is a case of a current account. Defendant alleges that he returned one of the engine pumps to plaintiffs because it broke and he is not obliged to pay for it. Plaintiffs maintain, through the manager of their engineering division, that defendant put paraffin instead of oil into the engine and damaged it. Plaintiffs gave defendant a temporary pump, pending repair of his pump. Plaintiffs actually repaired the pump but defendant failed to pay the cost of repairs.

 The plaintiffs retained it. The onus of proving that the machine broke because of an inherent fault and not negligence lay on defendant. He has failed to discharge this onus.

(Judgment for the plaintiffs)*

·        Application for revision (KHC/Revision/189/60) pending.