(COURT OF APPEAL)·

MUKHTAR AHMED ABDEL RAHIM and others vs. FATIMA HUSSEIN ALI

 (AC-Revision-189-58)

Principles

·  Family Law- Husband and wife-Equity- Fiduciary relationship not created by relationship of husband and wife

·  Prescription and limitation-Prescription and Limitation Ordinance 1928, sectkion 12.

  The relationship of a husband to is wife is not of itself a fiduciary one, so that where a husband reveives money from his wife by way of loan he does not hold the same in a fiduciary capacity on her behalf and her right of action is not within the exemption from limiation accorded by section 12 of the Prescription and Limitation Ordinance 1928[1].
Howes vs. Bishop (1909) 2 K.B390 approved. 

  The relationship of a husband to is wife is not of itself a fiduciary one, so that where a husband reveives money from his wife by way of loan he does not hold the same in a fiduciary capacity on her behalf and her right of action is not within the exemption from limiation accorded by section 12 of the Prescription and Limitation Ordinance 1928[1].
Howes vs. Bishop (1909) 2 K.B390 approved.

Revision:

          Advocates: Abdel Wahab Mohammed…for the Applicants.

                             El Fatih Abboud…for the Respondent

23th December 1958. Babikir Awadallan J. : - This is an application against the decision of His Honour the Province Judge Khartoum, dated 2nd October 1958, reversing the decree of the District Judge Khartoum in CS-1133-56 and ordering a retrial of the claim by Respondent against Applicants fro recovery of money alleged to have been paid by Respondent to the use of her deceased husband who is also Applicants’ predecessor-in-title.

There does not seem to be any doubt about the acts of the case.Respondent was the wife of deceased, Mohamed Ahmed Abdel Rehim, and ex-policeman who died in 1954 leaving no issue. His heirs were his said wife (as to on-fourth), his half-sister Fatma (as to one-sixth) and is full brothers Mukhar and El Nur as residuary heirs.

It appears that some time after 1938 the deceased was allotted a plot in the Ntive Lodging Area under the Local Government (Municipality) Ordinance then in force. In 1942 he managed to get this plot completely built and with his wife continued to live in it until he died. The martial relation not being interrupted during all this time save for a short time when the parties (i.e. Respondent and her late husbsnd) were divorced in 1959 Respondent no alleges an agreement in 1940 whereby deceased promised her that if she would finance the building of the then vacant plot he would see that is was registered in her (Respondent’s) name. The agreement- Respondent alleges- was a verbal one, and consequent thereon, she built the plot out of her own money and spent a sum of £S. 200. she accordingly claimed rectification of the register or alternatively return of her money. The issues framed appear at p.8 of the proceedings.

During the hearing (p.29) the Advocate for the heirs raised the point whether the claim was statute-barred and the Court framed the issue that effect and invited both Advocates to made submissions. The Advocate for the wife contended that the claim related to land and hence the period of limitaition under the Prescription and Limitation Ordinance was 10 years from the date the cause of action accrued and the cause of action in this case accrued on the date the rights of the wife were denied by the heirs. The completion of the hearing dismissed the wife’s claim for lack of evidence. The Court found that the alleged agreement was not proved. As regards the money paid by the wife, the Court said: “ Although there is evidence that Plaintiff paid certain money for the material and cost of buildings, this in itself in insufficient to prove the such money was her own.” The wife applied for revision and the Province Judge who dealt with the case agreed with the District Judge on the point that the original agreement was not proved. As regards the claim for recovery of money the Province Judge said that the Court’s finding to the effect that the money paid was not proved to be claimant’s money was an unfair finding ordered that the case be sent back for rehearing with a view to finding (from the evidence already adduced- and additional evidenct if necessary) the exact sums spent by claimant.

From this decision the heirs applied to this Court. Before us Advocate Abdel Wahab for Applicants- the heirs- raised two objections to the retrial of the issue as to payment of money, viz. :-

(a)      That the claim is time-barred-period is five years under the Ordinance.

(b)     That the decision dismissing the said claim was not against the weight of evidence. 

On behalf of the Respondent-claimant- Advocate Abboud contends that the Prescription and Limitation Ordinance is not applicable because the relationship between Respondent and her deceased husband was a fiduciary relationship within the meaning of section 12 of the Ordinanc. We are unable to agree with this contention on behalf of the Respondent as the existence of the fiduciary relationship between husband and wife. The question was dealt with in England in Howes vs. Bishop (1909) 2 K.B.  390, where it was said that “ there is no gneral rule of universal application that the rule of equity as to confidential relationships necessarily applies to the relationship of husband and wife.” We think that this must be the law in the Sudan where both personal and customary law confer upon the wife a degree of independence which English law had attained only after aseires reforms. The Respondent in this case has therefore no special protection under the Ordinance and if her palint on examination under the Civil Justice Ordinance, section 56, disclosed that the causes of action accrued more than five yearspreceeding the date of the plaint, it was the duty of the Court to dismiss the action.

In case of money paid by Plaintiff to the use of her deceased husband, the cause on action-accrued from the date of payment. As in this case the money must been paid some time before 1942- the date of the completion of the buildings-we can not see how this action can be allowed in face of the provisions of the Prescription and Limitation Ordinance.

We are therefore of opinion that this application should be allowed with costs and that the decision of His Honourthe Province Judge ordering a retrial be reversed.

23rd December 1958. M.A Abu Rannat C.J :- I concur.

(Application allowed)