(COURT OF APPEAL)

TELESTAR COMPANY v. THE NILE IMPORT & EXPORT CO LTD.

 AC-REV-5I5-1967

Principles

Civil Procedure—Commission or letter of request—When to be granted—Civil Justice Ordinance, ss. 104-107- of diligence on part of applicant’s advocate—Should not amount to an act of bad faith

After plaintiffs (respondents) closed their case, applicants’ advocate applied to have his client, who resides abroad, examined on commission. The High Court, upholding the decision of the District Court, rejected the application on the ground that the granting of such an application defeats the ends of justice in that it will delay the fair disposal of the suit.
The Court of Appeal reversing the decision of the High Court.
Held: that granting or refusing a commission or letter of request is discretionary under Civil Justice Ordinance, ss. 1o4—1o7. It must be proved that the lack of diligence shown by applicant’s advocate should not amount to an act of bad faith, and that the delay and inconvenience caused to respondents is by far outweighed by the injustice that would befall applicants if their application were rejected.

Judgment

                   Advocates: Mohamed Ibrahim El Nur…………………. for applicants

                      Abdel Rahman Yousif………………………………… for respondents

                                                                              59

Mohamed Yousif Mudawi J. February 4, 1968: —On September 26, 1967, advocate Mohamed Ibrahim El Nur on behalf of applicants lodged this application with the Court of Appeal against the decision of the Judge of the High Court, Khartoum, who upheld a decision of the District Judge, rejecting the application of appellants (Telestar Company), who reside abroad, to issue a letter of request to have themselves examined in Athens.

The circumstances of the case are as follows:

The issues were framed in August 1964 and the hearing was fixed for January 30, 1965. The advocate for first defendants waited until the plaintiffs closed their case then he applied to have his client examined on commission. His application was made on March 14, 1967, and the District Judge decided to reject it on May 25, 1967. In September 1967, the High Court upheld the decision of the District Judge.

Evidence on commission is governed by the Civil Justice Ordinance, SS. 104—107. These sections give the courts a discretion to grant or refuse a commission or for that purpose a letter of request. The court in the exercise of this discretion considers each case on its own merits. It must try to satisfy itself that the application for commission or letters of request was made in good faith and without an intention to delay justice. The English courts quite reasonably consider the date on which the application was made material to prove or disprove good faith. However, the English courts try to discriminate with some justification between plaintiffs and defendants.

“There are many cases where the court has been very reluctant to accede to applications by a plaintiff to take evidence abroad because the tribunal has been chosen by the plaintiff himself. So too with regard to a plaintiff asking for a commission to examine himself; but the case is entirely different when it is the defendant’s application and particularly that of a defendant lawfully resident out of the jurisdiction according to the ordinary course of his life and business; and to compel these defendants to come over here at great expense to attend the trial or give up their case would be oppressive and unfair.”

This is the English court’s attitude as expounded by Chitty J. in the case of Ross v. Woodford (1894) 1 Ch. 38.

I tried to have a look at AC-REV-89-1966 an unreported revision in the Court of Appeal referred to by both parties, but it was not traced until this judgment was written. This is undoubtedly most unfortunate, and hence we have to proceed with the contents of AC-REV-89-1966 unknown to us.

The advocate for defendants did not show much diligence when he waited for plaintiffs to close their case before he applied for commission.

                           He could have brought the matter earlier even if to rebut any allegation of bad faith.

However, does the behaviour of defendants amount to being an intended act of bad faith designed to delay the course of justice? I think the answer to this question clearly decides the point. The defendants reside abroad, i.e., in Athens in the ordinary course of their business; they will be unduly burdened with a great deal of expense if they are made to come over here; they may perhaps be compelled to drop their claim if their evidence was not taken on commission. In my opinion the lack of diligence shown by their advocate does not amount to an act of bad faith. All the circumstances of the case taken together, I believe the delay an inconvenience caused to plaintiff is by far outweighed by the injustice that would befall defendants if their application is rejected.

Appeal is allowed and costs are to be borne by applicants. They must be made to undertake to proceed in the case with due diligence.

El Rayah El Amin C. J. February 4, 1968: —I concur.

 Saiah Eddin Hassan 1. February 4, 1968 —I agree.