Wakilii

Harji v Dalgety and Co. Ltd (Civil Suit No. 1271 of 1953)

East African Court of Appeal · [1954] EACA 11 · 1954 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by defendant for commission or letter of request to examine witness in England and for stay of proceedings
Decision
Letter of request granted with stay of proceedings; costs awarded against applicant

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The court granted the defendant's application for a letter of request to examine a material witness in England and stayed the suit until depositions were filed. However, the court declined to order security for examination expenses, finding no evidence of inability to pay or mala fides. The court held that a heavier burden rests on a defendant than a plaintiff to apply within reasonable time, and reasonable cause had not been shown for delaying the application for over three months after issue joined and until one week before the hearing date. The defendant was ordered to pay the costs of the application in any event and forthwith.

Outcome

Letter of request granted with stay of proceedings; costs awarded against applicant

Facts

On 9 October 1953, a hearing date was fixed for 28 January 1954. The defendant's advocates were aware of the date and wrote to the plaintiff's advocates objecting, but took no steps to have the date set aside. On 21 January 1954, one week before the hearing, the defendant's advocates applied for an order for a commission or letter of request for the evidence of a witness alleged to be material, located in England, and for a stay of proceedings. The plaintiff opposed the application on the ground that other witnesses were available and, alternatively, submitted that if the order were made, it should be only upon strict terms as to security for the expenses of the examination and costs.

Issues

  1. Whether an order should be made for a letter of request for examination of a witness in England.
  2. Whether the application was made within a reasonable time.
  3. Whether security should be ordered for the expenses of examination and costs.

Orders

  • Order made for the issue of a letter of request for examination of witness in England.
  • Stay of suit granted until depositions are filed.
  • Security for expenses of examination refused.
  • Applicant (defendant) ordered to pay costs of the application in any event and forthwith.

Rules and key headnotes

Civil Procedure — Letters of Request — Materiality of Evidence
Where a defendant's affidavit shows that a witness appears to be material, an order should be made for the issue of a letter of request for examination of that witness abroad, the procedure of examination by commission being obsolescent in England.
Civil Procedure — Letters of Request — Security for Expenses
Security for expenses of examination of a witness abroad should not be ordered where there is no evidence that the applicant cannot meet the expenses, or that the application is mala fide, or that the evidence sought is immaterial.
Civil Procedure — Letters of Request — Timing of Application — Burden on Defendant
A heavier burden rests upon a defendant than a plaintiff to apply for a commission or letter of request within a reasonable time, and reasonable cause must be shown for delaying the application for more than three months after issue joined and until a week before the hearing.
Civil Procedure — Costs — Delay in Application
Where an applicant delays in making an application for a letter of request until shortly before the hearing date, the applicant may be ordered to pay the costs of the application in any event and forthwith, notwithstanding that the substantive application is granted.

Legislation cited (1)

Cases cited (5)

  • Langen v Tate (24 Ch D 522)
  • Sheppard v Dalbiac (30 Sol J 46)
  • Fisher v Hahn (32 LJ CP 209)
  • Brown v Mollett (24 LJ CP 213)
  • Norton v Melbourne (3 Bing NC 67; 132 ER 335)

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Harji v Dalgety and Co. Ltd (Civil Suit No. 1271 of 1953) [1954] EACA 11 (1 January 1954)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.