( The National Supreme Court )

Cassation No.67/2018

Issued on 29/8/2018

Judges:

President

 Hon Justice: D.Ilham Ahmed Osman Wani  Supreme Court Judge

Member

 Hon Justice: Kawthar Awad Abdal Rahma   Supreme Court Judge               

Member

 Hon Justice: D.Mohamed Abzeid Osman     Supreme Court Judge

The code of civil procedure 1983 ,the rule (111) of third schedule attached to this law.

The jurisdiction . Non – appearance of new inheritance of the deceased, its effect on the court interpolating the debt.

The Principle:

The court of personal status has no jurisdiction to interpolate debt on the inheritance in which a sharia (declaration) issued unless a new inheritance of the deceased appears, and the creditor in such a case must go to civil justice to interpolate his debt.

Judgement

Judge: D. Mohamed Abzeid Osman

Date: 5/8/2018

Date 8/9/2016, Advocate Hasab Alrasul Idris applied to the court of personal status of Khartoum east, requesting putting the file of the inheritance No 494 heritages/2015,  in the name of the deceased Montasir Bashir Mohamed Ali  to proceed in the proceeding of inheritance, because of appearance of debt for benefit of his client.

In the session of 8/9/2016 appeared the Advocate of the creditor and on behalf of one of the heirs appeared Advocate Yahia Alfdli who raised that his client has a debt of (102000)  pounds on the deceased and the full brother of the deceased who is appearing   before the court paid a part of the debt a mounting to more than (102000) and what he paid are 40,000 pounds.

The origin of the debt is a local amount of two cheques issued by the deceased before his death for the benefit of the client of the Advocate the applicant who is the creditor.

The Advocate of one of the heirs said he has no knowledge of that debt – The creditor and his Advocate were asked to prove the debt.

From the fact of the evidence heard by the court of first instance, decided that the debt of (102,000) was proved against the deceased for the benefit of the creditor. The judgement was passed by a judge of the First Class, with authority, despite this his judgement was appealed to the General Court, which passed its decision no A.as.sh/12/2017 quashing the appeal, confirming the preliminary judgment. The heirs appealed the judgement of the General Court to the Court of Appeal of Khartoum which passed its judgement No A.assh/514/2017.quashing the appeal, confirming the judgment of the General Court. Before us the Advocated of heirs of the deceased, challenged the decision on 4/3/2018, stating that the judgment was against the weight of evidence and there is a conflict between the statement of the witnesses and that of the creditor according to what was proved before the Court of the First Instance.

The Court of Appeal relied on presumptions of which the cheque on which the name of the benefiary did not appear, or the date of its issue, and that all the heirs  must appear , and appeared on their behalf their agent Mohamed ,who was entrusted to appear before the court in the proceeding of the inheritance only not as their representative in admitting the  debt or as debtors for this the Advocate of the heirs requested quashing the judgement of the lower Courts. After preliminary accepting the heirs by an agency no 28/2015 for this Advocate of the challenged  judgement of, the challenged against was summoned to reply to the memorandum .

The Advocate of the challenged against stated that there is no evidence  to resist the claim  of the challenged against, as to the existence of his debt which was proved before the lower Courts  and no evidence producted to the Supreme Court  to refute the proof of that debt. The debts are in advance of  the liquidation of the inheritance and -  for the benefit of the creditor and the heir Mohamed was Advocate representing all the heirs by any agency No – 28/2015 for this Advocate of the challenged against requested confirmation of the preliminary judgement  upheld by the General Court  and confirmed by the appellate e decision .

The Reasons

The challengers were notified of the appellate judgement on 62/2/2018 and they presented their  challenge on 4/3/2018 and thus it was brought within the time limit and formally accepted. As to the subject, Article (13) of the third schedule provides that the General Court  is empowered to decide the appeals and  orders issued by the district judge of the second class. Article (14)of the same schedule limited the jurisdiction of the Court  of Appeal to hearing from the preliminary judgements passed by civil General Court  and of the Court of district judge of the First Class.

As the General Court  decided the  preliminary judgement on appeal and that judgment was passed  by  a judge of the First Class, therefore the General Court  has no jurisdiction the lack of   jurisdiction  is of the public policy and thus nullifies the judgement of the General Court  and the court of  Appeal ought to quash the decision of the General Court .

Adding to this no  apparent  inheritance of the deceased, and these was a heritage the plot No./154/1 Block   grada and it was distributed a among the heirs and  an Ilam (declaration) was issued NO 727/2015 dated 14/7/2015 and deceased had cash money inherited by his hiers, for this reason, the inheritance was kept , until the application of the Advocate of the challenged against to  prove the debt of his client, without the  appearance of inheritance of the deceased from which the debt of the deceased can be met thus the issue of the Ilam (declaration) mentioned above at the date became res judicata

It is impossible procedural   to the require the proof of a debt on the proof deceased where no new inheritance of the deceased   appeared the court cannot satisfy the debt if proved unless a new inheritance appeared and the questing of the debt is raised during liquidation of the inheritance, and after the expiration of one month of the period of the challenged    dated 14/7/2015 and the application to the prove the debt was on 8/6/2016 after the expiration of the full year or little less from the date of issuing the Ilam  (declaration) the court of personal status has no jurisdiction to prove the debt in this case and the application of rule (111) of the third schedule attached to the code of civil procedure 1983, is when claim for debt endowment or alms .which are within the power of a Circuit of Personal Status, the debt is out of its power, but it  can hear it if there is clear evidence to prove it, during the liquidation of the inheritance if inheritance is liquidated and an Ilam (declaration) was made as shown in the  present  challenge before us and, and no new inheritance appeared, then no way for proving the debt from the Court of Personal Status circuit, because of non-existence  of new inheritance of from which the debt can be met. From this and from the lack of jurisdiction of the General Court to hear the appeal from the judgement of the district judge of the first Class thus the judgement of the  Court of Appeal and the two Courts, the general and preliminary are against the law, we decide quashing the judgement of the lower court and the creditor  can refer to the civil justice .

Judge: Kawthar Awad Abdal Rahma

Date: 27/8/2018

I concure.

Judge: D.Ilham Ahmed Osman Wani

Date: 29/8/2018

I concure.                 

The Final Order:

Quashing the judgement of the lower courts , and the creditor can refer to the civil justice.

D. Ilham Ahmed Osman Wani

Judge of the supreme Court

President of the Court

29/8/2018