(COURT OF APPEAL)·

ELECTRICAL AND MECHNICAL ENGINEERING Co.Ltd. Vs.

AHMED FADL EL MULA and MOHED EL AMIN MOHED ALI

On appeal from the High Court

AC-Revision-42-58

`Revision

Principles

  Hire purchase- Inspection of goods before acceptance-Missing parts- Fintness for purpose.

   Guarantee- Plaintiff using one of the prinicpal debtors-Discharge of guarantor Written contracts- Signature by person unable to read the lanuage.

 The first respondent and the appellant entered into a hire-purchase agreement for a diesel engine; and secondrespondent signing the agreement as “paying guarantor.” The first installment was not paid by the respondent on the grounds that (a) the engine was not fit for the purpose for which required it; (b) as delivered some of the parts were missing, and (c) that no opportunity had been provided for inspection prior to delivery. before the issue of the summons the first respondent’s associate died and the appellants applied to have his name struck off the proceedings, the respondents raising no objection. 
 
Held:
(i)                          that in the absence of specific provision in the hire-purchase agreement the only  obligation on the owner is to see that the goods are reasonabley fit for the purpose for which they were intended, but not that they are necessarily fit for the specific  purpose for which the hirer requires them.
(ii)                       That the fact that some parts were missing which did not afect engine itself was not a ground for rescinding the whole contract. 
(iii)                    That where the agreement states that the hirer has examined the goods extraneous evidence isinadmissable to rebut the effects of such a provision.    “If the defendants wanted to make accpetance under theagreemnt operative only after inspection or installation they should  provided for that in their contract for that in their contract. In the absence of such a provision they can not expect this Court to make out their contract for them.” 

(iv)                     That a gurantor is liable even though he has no notice of the prinicpal debtor’s default. The statement of Law in Halsbury’s Laws of England,3rd ed., Vol.18,p.449 applied. 
(v)                        That by striking off the name of deceased co-hirer the appellants had elected to sue only one of the hirers and had thereby unilaterally affected the position of the surety thus discharging the guarantee. Statement of the law in Halsbury’s Laws of England, 3rd ed,. Vol..18,p.502 applied. 
(vi)                     It is not ture in all cases that ignorance of the language of the written conctract excuses the party signing it from liability thereunder. 
“ if a person wants to avoid the consequences of the a written agreement on the grounds non est factum then it is for him to plead the fact, otherwise he would be bound by his signature.”

Judgment

The facts are fully set out in the Judgment of M.A. Abu Rannat C.J.

Advocate: Labib Sorial….for Applicant

12th June 1958. M.A. Abu Rannat C.J. :- The Plaintiff (Respondent) brought an action in Port Sudan against the Defendant (Applicant) claiming £S. 1.000 as damages of defamation. The alleged defematory statement is one which imputes conduct tending to prejudice him in the ways of his trade. The Province Judge framed a preliminary issue as to whether the claim was statute barred under the Prescription and Limitation Ordinance, and he gave jmudgment to the effect that the action brought by the plaintiff was not statute barred. Against this judgment the Defendant applied for revision to this Court.

In order to decide this revision, it is necessary to state the facts as disclosed in the record of the proceedings:- On 9thJuly 1956 the Plaintiff submitted a petition to the Court. Noting was written by the Judge on that petition until  the 27th October 1956 when the Plaintiff appeared and was informed by the Judge to file particulars of his claim. The particulars were submitted by the Plaintiff on 9th December 1956. No action was taken unitl 4th March 1957 when the Plaintiff appeared. The Judge ordered him to appear on 6th March 1957. he appeared and was examined by the Judge and action was then allowed . the fees were paid on 7th March 1957.

It is agreed that the date of publication of the alleged defamation was 29th November 1955. the learned Province Judge considered that the action was allowed on the date of the presentation of the petition, i.e. 10th July 1956. in my view the learned Province Judge was wrong in considering the date of the presentation of the petition was the material time from which the period should be counted under sections 7,8 and 13 of The Prescription and Limitation Ordinance.

In reaching this conclusion I referred to section 55 of the Civil Justice Ordinance. Section 55 lays down the particulars which a plaint must contain. Section55 (1) (e) reads:-

“ The plaint shall contain the following particulars:- the facts constituting the cause of action, and when it arose.”

The petition submitted by the Plaintiff on 9th July 1956 did not mention the date of the alleged defamtorystatement.Section55 (2) of the Civil Justice Ordinance provides that where the plaint is not drawn up in the manner provided in subsection (1) the ?Court may return it for amendment or may itsefl cause it to be amended there and then; What the learned Province Judge did was that he ordered the Plaintiff to comply  with the provisions of this section. This section is peremptory, i.e. it must be adhered to and can not be disregarded, and without compliance with it, no action can be allowed. Furthermore, Order 21, Rule (1) of the Civil Justice Ordinance reads:-

“ Where under this ordinance it is provided that a fee shall be paid to the Court upon the making of any aplication or of the issue of any provess or for the doing of any act for the carrying out of any proceeding such application shall not be accepted and such process, act or proceeding shall not be issued, done or carried out until the fee prescribed has been paid.”

It is clear from the wording of this rule that the material date on which the action was allowed was 7th Mach 1957.this shows, that more than one year has elapsed before the action was allowed, and threfore the claim is statute barred na shouldhabe been rejected under section 56 (d) of the Civil Justice Ordinance.

The learned Judge referred to Explanation (1) of section 3 of the Indian Limitation Act 1908. this part of the Indian law is not identical with our Prescription and Limitation Ordinance and it can not therefore be applied to theis case. The section which is appplicable to the facts of theis case is section 55 of the Civil Justice Ordinance.

The application is allowed and the claim by the palintiff is dismissed as statute barred.

M.J. E. Nur J. : - I cocur.

(Application allowed)