ffiie,;t::ratiopl pf Estatee; - Ill!Pro;per sale of estate prolZ9 :w Official

    administrator - Pres:unwt,ion that 1;rue market value of 'proPerty is
th& amount actualby paid fo~ it at a p~oper public auctioni- Nominal.
damages for.ho~est but mistaken sale where ~actual d~ •.

Appeal and Revision - Fresh evidence - Leave to Qa.11 such _eVidence
pe~itted where necessary for proper decision and party. might have                                                           .                                                                        .-

been pre}udiced by trial judge's errQneoW3 ruling.

Civil Procedure - Testimony - Election to present witnesses or writt~er!.
submissions•.. NeC;:6ssity of.

Damages - Administration of estates - Improper sale by honest mistake'"
no actual dall\a~es •• Nomin~l damages. awaraedll

1. The trial judge should require the parties to make an unequivocal
election between entering ,.zritten submissions or. pnoducfrig witnesseso

.2. Leave to call fresh evidence will not normally be given by an
appellate tribunal if the evidence could and should have been called
at the original hearing. But where further evidence is necessary
f,:)r a proper decision and the party "rishing to produce the evidence
might have been prejudiced l:zy- an erroneous ruling of the trial judge
as t,o his right to do so, leave will be gra.nted~

3. It is presumed that the true value of a proper:l;:1 at a given date
i"s the amount that was actually gi.,en' for it by a willing purchaser
at a properly conducted public sale:

4. \ihel'e there are: no actuaa damages resulting from the off'ic~l
AdminiStrator·s . honest but mistaken and improper sale of part of

an estate1 nominal damages ,·lill be auarded.

II(. Co'Urtt Cl'~.ec1. L.S. t J .G. Mavrogordato. Esq. and Dardiri Mched OSlll8.ttt J.

.\;f>Y·.19~···'tQ46:,."<:i~1> Ua·",~ol!.or.dul~~). l~tl:.:.':._1::; is an appeal by "the Advocate-                                                                                                                                                                                                                                          .

G~loral on behalf of the Sudan Go-vernm~t from a decr-ee of High C01U't,

Kharloura, in Ha...CS-41O-1944. The i-ssu.e is in eaaenoe a simple one, a...'1d

in on e purely of fact. lmdrat'lis 1;8.sif died In 1931. In nay·1940 the
Official Aclmuiistrator • .fas ~p.Pl!linted by the IIig':l court to a.d!.1il1i3'tci<

his estate. On Septer:1her 1. 1940 t he Offici.al Administrator, act ing
honestly but mistalcenly (atI if) :10t-! ad::lit~ed.) L'1 the exer ct.ce of :~i!3 c1,uUes
sold t,ro plO"~::; •. llos •. 6). F and 62 A. :Jlocl~ 4, HUlat Hamad. Kha.rttnnl1'-Irorth
(tocether ct:i\,;JX'Ooising aona 1321' ~~rc:::::). tormmg part of the ~state,

for a. total ~~ of L~.286.

-=:the seloa haV1.:.1g be= fOlL,"':' and '0ebg ad.dttei:. to be ~jusHfied and.
therefore i:::proper, t he sole quest ion at issue 1.:.]. thQ suit is Hl~t c1.ar.1CLGC,
if arg, the p'La irrt Lf'f's , as !1eir:;; of the de ceaaed , have. sufferec! thereb'.r.

- !:is is a pure question of fact, and one ~rou1c_ have o c xpect ed betic partios
to lead evidence to shou , on t:10 one aide, that the- sale 1-]aS at an under-
value, and 011 the other. that th9 sale lias at the full mar;~et price of
the da.y. _ 'I'l:).e plaintiffs. in f'act pr-oduced- ouch cvidonce~ end !19tably that

of a licensed real estate valuer frequ~ltly ci71ployed by the_ court and t hc

Aclminist:t'ator General in that capacity, uho estimated the fail' nark::r~
value of the tllO propertie::> at LE.4(52.200m/ms. He a.lso E;tateJ. 011 oai;11
that there Wf;l.S only one bidder present at the public auction conducted

by the J.la.mur f namely the pur-chasez-,

At th~ close of t ha plaintiffs' case on June 30 •. 1945 the learncd.
judge b§YloH recorded as- fClJ,Qi"ls1

''l>tr. Leach (Official Adm'4l is1; rat 01' ) >1111 report to th~ Mvocat ew-.

GeJ:lere.l. If defendants call no "ritnGSscl;J they may put in e l1X'ittol1
subml sa Lon , ' Thereafter plaintiffs' Hl·it·~en submi as ion , find. '~nc::til
judgment.

"Order~ 1. Adjourned ~ die.

2. Dierig-e for July 7 .• 1945."

In our opinion the above direction and order Uere perfectly propel' and
cl~ .• ~ The ~~da.ut.s l1el'e in eff~ct being put to their elect(= eUh~ _
to call evidence. or t.o. submit that on. _the evidelloo alreaey bc.t"o:re the
court' the plaintiffs-' case tlust faU.

vlhat in fact happened 't-Ias that on July 7, 1945 the learned Advocate-
Gsneral put in Hritten submission attacking the evidence given by witnesses
for the plaint if'fs, stat bg that the Mamur who conducted the sale l-laS then
stationed at Kadug'l L, and adding "if +he court is not satisfied on these
submissions that the price obtained on the sale was the market price, I
apply for a fl~~er adjournment of the case in order that his evidence

frAy be made available to the court." In our opinion it is clear on the
face of it that this submission did not represent the unequivocal election
called for by the Learned judge, and he should have refused to accept a
submission in that form. He should have told the learned Advocate-

General either to call his vlitness or witnesses, or to rely on his sub-
mission l-lith t':le knowLedg e that he lIould have no further opportunity of
calling evidence in support of his case if the decision went against him.
L~ fact the learned judge accepted the submission in that form without
comrn3l:t, and , after receiving a counter-submission from the plaintiffs,
delivered judgment in favour of the plaintiffs for a sum of LE.176.200m/ms.
From that judgment t!le def'endarrt s appealed, the main ground being that

the decision Has against the weight of the evidence. It was not till
December- 12, 1945, shortly before the appeal vias due for hearing, that

the Advocate-General applied :or leave to call four 't-litnesses at the
:'learing of the appeal.

The normal rule and practice of an appellate'tribunal with regard

to applications for leave to call fresh evidence is perfectly clear.

Leave ,d:l not normally be given, if that evidence could and should

have been called at the original hearing. The reason for the rule is
ol.vious , It woul.d be b~olerable if litigants Here to be allol-1ed to

tI"'J and \'IL~ t:1:!ir cases "011 the cheap," and, vlhen they failed, were to

1e given a second chance, and enabled to rob their successfuI opponent

of the f~~its of victoI"'J. It is for this reason that the submission of

th8 learned Advocate-General before the court below was in our opinion
obnoxious - it sought to have the best of both .Iorlds, to defeat the
plaintiffs without going to the trouble and expense of producing difficult
Fi-tnesses, and, if the plaintiffs Here nevertheless successful, then to
bring up the reinforcemili~ts and defeat them at a further trial of strength.

It is clear that all the four vlitnesses could have been called at
the original trial after a suitable adjournment or adjournments. This
court finds it difficult to suppose either that such adjournments for
that purpose would not have been readily granted by the learned High

Court Judge, or that the defendants, if they had addressed their minds
to the point. oould have believed that any reasonable request for such
adjournments would have been refused. This oourt would therefore have
ref'u.sed the request put fortara. on behalf of the defendants for leave
to call witnesses before them, but for the following two facts: first,
the court was of opinion that the evidenoe before the court below was

lett in an incomplete and unsatisfactory state, and one in Which the
court itself might well have required further evidence to be called in
order to enable a proper deoision to be given. Second, it was impossible
to avoid the conclusion that the defendants might have been prejudiced

by the mistake of the learned judge in accep:ting the Advocat~eneral fS
improper ltttbmission. Had he refused it, and required the Advocata-
General to make a proper and unequivocal election, he might have elected.
to call the witnesses.

In the result, therefore, this court allowed both parties t" cal:,
further witnesses, and .five witnesses were called on behalf of the
defendants (the present appellants) and one further witness on bflha:f'
of the plaintiffs (the present respondents)~ Before dealing l-lith the
effect of this further evidence, it may be well to point out that ~ot

only the court below, but this court, had been impressed by "two pieoes

'of evidence, hitherto allowed to stand uncontradicted, given in the

court below. These are

(1) that only the actual purchaser attended the
auction sale, and

(2) that at the time of tr.at sale, house property value;!
had already risen, and were continuing to ri~ very substantially as a
result of the recent invasion of Sudan territory by the Italians. As a
result of the evidence now called before this court on behalf of the
defendants, we are satisfied that neither of these point~ is substantiated.
It is clear that there were several bidders for each of the plots in
question and the inevitable suspioion that the auction might have been
carried out in a hole and corner manner with a single bidder is oompletely
disproved. The auction was properly advertised and properly conductei

in aooordance with the usual practioe. As to the second point t vie are
satisfied from the further evidence produoed. that the substantial ris·e

in real property values, of which the learned judge below took judicial
notice, in fact took place some months if not years after th9 date of

this salez it did not oocur immediately upon cr after the Italian
invasion.

This being so, is there now anythil'lg to displace the presumption
that the true market value of a property at a given date is the amount
that ~ actually given for it by a llilling purchaser at a properly
conducted publio sale on that date'? We think not. The plaintiffs
therefore cannot hold their decree for LE.l76.200m(ms. They are
however, in our opinion, entitled to nominal damages in respect of the
admitted wrong done to them, and we assess these at LE.2.

With regard to costs, in vie\'/ of the speoial circumstances of this
appeal we oonsider the proper order is that the dncree of the court
below as to oosts should. stand and that the defendants should pay all
the costs ot this appeal.

Creed, L.S.: I concur.

Dardiri Mohed Osman, J.: I concur.

Appeal allowed in part.