Air Import v The Newson Aeronautical Corporation (Miscellaneous Civil Application No. 162 of 1955) [1955] EACA 2 (1 January 1955)

## ORIGINAL CIVIL

Before CRAM, Ag. J.

## AIR IMPORT A. G., Plaintiffs

## THE NEWSON AERONAUTICAL CORPORATION, Defendants Miscellaneous Civil Application No. 162 of 1955

Civil Procedure and Practice—Foreign Tribunals Evidence Act, 1856—Rules of Court, Part IX—Civil and commercial cause depending before court in Switzerland—Section 2—Application to take evidence of witness in Kenya— Whether competent in absence of certificate by accredited diplomatic agent -Whether affidavit by agent in Kenya sufficient evidence-Whether commission rogatoire competent in absence of Convention-Whether application competent as exhibiting letters of request-Examiner not named-Whether : Court can name examiner—Procedure after examination. $\frac{1}{2} \cdot \frac{1}{2}$

A civil and commercial cause depending before the Court of the First Instance of the Republic and Canton of Geneva, Switzerland, the defendant obtained a *commission rogatoire* addressed to the "judge or other authority competent, at Nairobi, Kenya, to administer an oath to a named witness and to record his answers to certain questions". These questions were in chief by the defendant and in cross-examination by the plaintiff. No certificate by an accredited diplomatic agent as envisaged by section 2 of the Foreign Tribunals Evidence Act, 1856, was obtained nor did the document come through the diplomatic channel asking for assistance from the Supreme Court. The document was sent by the defendant to the Swiss Consul at Tanga, in Tanganyika Territory, who passed the same to an advocate in Nairobi. This advocate then applied to the Court by a summons in chambers deponing to his instructions in a supporting affidavit and exhibiting the *commission rogatoire*. No examiner was named in the document. The summons prayed for the appointment of an examiner to give effect to the commission rogatoire. The applicant admitted he had been unable to discover any convention relating to the taking of evidence subsisting between Switzerland and Kenya.

Held $(10-3-55)$ —(1) In the absence of a certificate from an accredited diplomatic agent of (10-3-35).—(1) In the absence of a certificate from an accredited diplomatic agent of<br>the foreign power, the Court could accept the applicant's affidavit as amounting to<br>evidence sufficient to prove that a civil and commer Foreign Tribunals Evidence Act, 1856, applied to the Colony.

(2) A commission rogatoire is appropriate only where a convention subsists permitting by reciprocity such simplified procedure. No such convention appeared to to be applied to Kenya by notification to the foreign state. The Court would therefore have to regard the document as amounting to letters of request.

(3) Although the letters of request had not been transmitted through the diplomatic channel, it was competent for the party obtaining the same to instruct an agent in Kenya to obtain the evidence, as had taken place in the instant application, which from this aspect was competent.

(4) The Court in the absence of an examiner named in the letters of request or the summons could competently name an examiner and so named the Resident Magistrate, Nairobi.

The Court further directed that the magistrate should issue a summons to the witness and that counsel for the applicant should put the questions to the witness and procedure to be in accord with the Rules of Court, Part **JX;** after the examination the deposition was to be handed by the examiner to the • Registrar who would forward the same through the diplomatic channel to the ·Swiss Court.

## *Wilcock for applicant.*

RULING.-Mr. Wilcock applies, by summons in chambers, for an order to appoint an examiner to take the evidence of a witness resident in Nairobi and moves under the provisions of the Foreign Tribunals Evidence. Act, 1856, which is applied to this Colony and the rules made under the Act, viz. Rules of Court, Part ]X, page 434, Vol. V, Laws of Kenya.

No certificate, as envisaged by section 2 of the Act, from any accredited diplomatic agent of the foreign power, is produced but the summons is supported by an affidavit sworn by Mr. Wilcock, that he bas been instructed to act by the Consul of the foreign power, resident at Tanga, in Tanganyika Territory. The affidavit depones that there is a civil or commercial suit depending before the Court of the First ]nstance of the Republic and Canton of Geneva, at Lucerne, Switzerland, and that this court has issued "letters rogatory" which are produced. The "letters rogatory" ask that an examiner be appointed to question the named witness and record his answers to questions contained in the letters.

As provided by section 2 of the Act, 1 am prepared to accept the affidavit of Mr. Wilcock as amounting to evidence sufficient to prove there is a suit pending before the foreign court and that that court is desirous of obtaining the testimony of the named witness.

On looking at the French original of the "letters rogatory", these are described as a "Commission rogatoire", words appropriate only where a convention exists, enabling a simplified procedure to be used arising from reciprocity. No such convention appears to exist between H. M. Imperial Government and Switzerland and no notification to the foreign state applies any such convention to Kenya.

J am forced to regard this commission therefore as letters of request. Leiters of request are frequently transmitted through the diplomatic channel from the foreign court but this has not happened here. Another procedure, however, is competent, viz. where the agent of one of the parties is given instructions to obtain the evidence. The agent may apply in chambers to a Master in England and may name the examiner. Where no examiner is named then the court will name the examiner. The present application, apparently, proceeded at the instance of the defendant to the suit and, it is to be assumed, reached the Swiss Consul at Tanga also at the instance of the defendant.

I am prepared to accept therefore procedure as if letters of request had been sent at the instance of the defendant to Mr. Wilcock as agent in Kenya . .. No examiner has been named and the Resident Magistrate, Nairobi, is now named as examiner.

The next issue is who is to put the questions to the witness? Where the. letters of request proceed through the diplomatic channel the witness is quese tioned in England by the Treasury Solicitor and, in Kenya, the Attorney- -General, from comity, would take the necessary steps in accord with rule 8 of Part IX, Rules of Court. In this instance Mr. Wilcock, as agent, may appear to examine the witness.

A summons is to issui: to the witness at the instance of the examiner m accord with rule 6.

The procedure at the examination will be as regulated by rule 6. *-i-~* . . ..

· ,At' the dose of the examim1.ti~n, \_the examiner is to transmit the depositions to the Registrar, who will forward the same, to the Swiss court, through the diplomatic channel with a certificate in accordance with rule 4 along **with** a note of the fees incurred.

> \ .

Order accordingly.