Twentche Overseas Trading (Export) Ltd. v. Shah Civ. Case 12-T-69; 27/7/71; Bramble J.

Twentche Overseas Trading (Export) Ltd. v. Shah Civ. Case 12-T-69; 27/7/71; Bramble J.

This is an application for an Order for the issue of a letter of Request for the taking of the evidence of seven witnesses in London. The suit is for damages rising out of a breach of contract signed in Tanzania, the extent of the damages claimed is dependent on the proof of arbitration awards made against the applicant in England, as a result of their failing to carry out certain agreements made between them and another party, the non-fulfillment of which were alleged to be due to the respondent breach. A notice was served on the respondent to admit the proceedings in the arbitration and copies of the relevant contracts but he is not willing to do so. Both parties agree that the examination of the witnesses are not and never where within the jurisdiction of this court the applicant has stated that it is inconvenient to have the witnesses brought to this country because of the high cost and the improbability of being able to obtain all of them act the same time.

            Held: (1) “The respondent has objected to the application on the ground that the fact that the witnesses are out of the jurisdiction is not a special circumstances to warrant the grant of the application. In support of this point he quoted the case of Caspair Ltd. v. Henry Gandy (1962) E. A. L. R. 414. That case dealt with the grant of a commission to examine a plaintiff who was then out of the jurisdiction and it was held that only in exceptional circumstances will the court allow a plaintiff to be examined out of the jurisdiction. The whole basis on which a commission or a letter of Request is issued is that the witness is out of the jurisdiction and his evidence is necessary for a just determination of the case. it is only where the applicant is a plaintiff that he must show exceptional circumstances. It was further contended that the respondent will be put to extra expenses by retaining counsel in London and that it may be difficult t get permission form Exchange Control. It has not been said that permission will not be granted by Exchange Control and any expense to which the respondent is put is recoverable by way of costs if he is successful in the suit. The respondent is in no worse position than the applicant. An oral request for security for costs in the suit was made. There was no summons supported by affidavit and the respondent will have to make his application in proper form.” (2) Application granted.