(COURT OF APPEAL)·

 SHAGI KHALIL AKASHA vs. HEIRS OF KHALIL AKASHA

 AC-APP-34-58

Principles

·   Contract-Intention to Create Relations essential-Family Relationship- Quantum Meruit

As between members of the same immediate family, an intention to enter into the legal contractual relationship of employer and employee will not be presumed in the absence of clear evidence in support of it. 
Balfour v. Balfour (1919) 2 K.B 571 followed.

Appeal

The facts appear from the judgment of M.I. El Nur. J. The Applicant relied on a quantum meruit type of claim.

       Advocate: Mohd. Youssef Mohd….for Applicant.

18th October 1958. M.I. El  Nur J. : - I wonder whether the late khalil Akasha had in 1949 when he interrupted the education of his favoured son Shawgi and brought him to train him in his business any intention to create legal relations with him in the sense of employer and employee. Khalil was generously paying for th education of his son in England and the Sudan but when he started to get ill himself he brought Shawgi back and put him in his business.

Shwagi himself says (pp.22-23):- “My father came to Kahrtoum and asked me to leave the university and come and work with him. I agreed to work with him. I told him I wanted to know on what conditions shall I join him in the work. He told me this matter is not a matter for bargain.”

Shawgi then came to work with his father, and lived with him in the same house. His father maintained him and paid him £S. 4 monthly. Most Probably this was intended as pocket expenses rather than a salary. In 1953Shwagi asked his father to give him £S.1.000 to start a business of his own. This was given to him. He took out alicence in his own name and started to make use of the £S.1000fo his own account while he contiued to help his father in his work as before, but he had since ceased to receive from his fahter monthly payment of £S.4. In the same year Shawgi wanted to marry. His father payed £S.200 of his dowry and provided him wit a separate house to live in, free of rent, and in addition assigned to him the commission business of Abdel Moneim Co. and ContomicalosCo. to enable him to enhance his own personal income by taking the commission on those tow tawkeels for himself. From 1949 until 1955 when his father died Shawgi never raised the matter nor claimed from his father any payment in respect of his services in his business.

Therefore in the absence of any evidence to show that late Khalil Akasha expressly or impliedly engaged his son Shawgi as an employee in his business on the terms of a fixed salary or remuneration one can hardly believe, in view of the relationship of a father and his son in view of the proved facts set out above, that late Khalil had ever intended by bringing his son Shawgi to work with him in his business to creat any legal relations with him which would justify any claim by th4 latter by way of quantum meruti.

It was most unfortunate for Shawgi that his father died before he could transfer to him his kordofanCinema shares which, according to Micheledis (PW.3), he thought of doing eithteen months before his death, or before he could execute his desire to transfer to him the Omdurman house which Shawgi says his father thought of doing a few months before his death, but such intentions, even if they wrer really professed by by late Khalil Akasha, can only show to what extent he favoured Shawgi more than any of his numerous sons and can not in any way be taken as evidence that Khalil Akasha was employing Shawgi in his business at a salary and thought of making those transfers to him in lieu of his wages.

Fo all the above reasons I tink that this applicatin by Shawgi for leave to appeal against the decree dated 10th September 1958 issued by Judge of the High Court Kordofan in his CS-46-57 has no merits in it, and should subject to the agreement of the Chief Justice be summarily dismissed as hopeless.

25th October 1958. Abu Rannat C.J. :- I agree that the appeal is hopeless and it is hereby summarily dismissed.

(Appeal summarily dismissed)