(COURT OF APPEAL)

AGIP SUDAN LIMITED v. MOHAMED OSMAN DEKAIR

AC-REV-378-1968

Principles

  Civil Procedure—Appearance on the day fixed for hearing—Party deemed to have appeared if he appears in person or by a pleader duly instructed and able to answer questions relating to the suit

A party is deemed to have appeared on the day fixed for the hearing if he appears in person, or by a pleader duly instructed and able to answer questions relating to the suit, or accompanied by some person able to answer such questions.

Advocates: Abdel Wahab Mohamed &

El Tigani El Karib for the applicant

Judgment

Ramadan Ali Mohamed J. March 24, 1970:- This is an application against the order of the Honorable Judge of the High Court, Blue Nile Circuit, dismissing a similar application to him against the order of the District Judge, Medani, dated April 10, 1968 whereby he refused to adjourn the hearing of the suit to a later date.

On the date fixed for hearing—April 10, 1968- Advocate Bassioni, by instruction from the counsel for applicant-defendant, appeared before the District Judge and asked for adjournment of the suit on the ground that the director of the defendant company was abroad. When the learned District Judge refused to adjourn the hearing advocate Bassioni withdrew from the suit, and the District Judge considered the defendant and his counsel as absent, resumed the hearing of the plaintiff’s case, and gave judgment accordingly. An application to revise the order refusing the adjournment of hearing was summarily dismissed by the Honorable Judge of the High Court on the ground that there were previous defaults of appearance by the applicant-defendant.

In my opinion, the main question to be dealt with is whether there was a proper “appearance” by the defendant’s counsel on the day fixed for hearing. The mode of entering appearance has been explained by I Mulla, The Code of Civil Procedure (13th ed., 1965), p. 802.

“A plaintiff or a defendant will be deemed to have appeared on the day fixed for hearing of the suit, if he appears—

(1) in person, or

(2) by a pleader either himself duly instructed and able to answer all material questions relating to the suit, or accompanied by some person able to answer such questions."

The learned writer then went on to say that:

“a party cannot be said to appear by a pleader if the pleader has no instructions other than to apply for an adjournment, and, on the adjournment being refused, withdraws from the suit, stating that he has no further instructions to go on with the suit."

It is, therefore, clear that the plaintiff did fail to appear himself or by a pleader duly instructed or able to answer all material questions relating to the suit, or accompanied by some person able to answer such questions. Had the defendant or his proper counsel appeared before the trial court it may be that they could have shown cause to the necessity of the presence of the director of the defendant’s company who was alleged to be abroad. The respondent-plaintiff could have the chance of cross-examining the defendant or his counsel as to the date of the director’s departure and whether it was before or after fixing the date of hearing etc. In the circumstances the trial court was not in a position to determine the question of adjournment in favor of the applicant- defendant as the applicant was taken, and this was proper, to have failed to show cause for adjournment. It is my decision, therefore, that the default of appearance did not take place only on withdrawal of advocate Bassioni but advocate Bassioni’s appearance was no appearance at all.

This application should, in my view, be dismissed with costs. The applicant should have applied to the trial judge to have the default decree set aside if he so wished.

Dafalla El Radi Siddig J. March 26, 1970 : —I need not reiterate the facts which are aptly set out in the judgment of my learned brother Ramadan J. I entirely agree with him in that the appearance of advocate Bassioni cannot be attributed to the defendant. If I may add to the authority quoted by Ramadan J., I feel that this quotation from II AJ.R. Commentaries On Civil Procedure Code (6th ed., 1957), p. 2442 is in point. The authority reads:

“The expression ‘does not appear’ in Order 9 means the same thing as ‘fails to appear’ in Order 17. Thus where the defendant appears by a pleader and the pleader applies for adjournment and on the refusal of the same, reports ‘No instructions,’ then there is no appearance of the defendant as such in the case and further proceedings against the defendant are ex parte."

It had been repeatedly voiced by this court that the Civil Justice Ordinance differentiates only between appearance and non-appearance of parties. Thus, since advocate Bassioni appeared only to adjourn the suit

and had no instructions to pursue the action, the decree passed is a default decree. To remedy the situation applicants ought to have applied to the District Court to set it aside and not to the Honorable Judge of High Court. Hence their applications to the High Court and this court are premature since they did not exhaust their remedy before the lower court.

Ergo this application is dismissed.