(COURT OF APPEAL)

ALI SHAREEF v. IDRIS OMER NASIR

AC-REV-109-1969

Principles

  Civil Procedure—Objection as to the place of suing—Civil Justice Ordinance, s.55(1) (f)—To be pleaded at the stage of submitting the plaint to the court

The objection as to the jurisdiction of the court in respect of the place of suing shall be pleaded in the light of the Civil Justice Ordinance, S. 55 (1) (f) at the stage of submitting the plaint to the court whereby the suit shall be instituted.

Advocate: Badr El Din Modather for the applicant

Judgment

Tawfik Abdel Mageed J. May 6, 1970:—On May 25, 1963, the applicant-plaintiff instituted HC-CS-428-6 against the respondent-defendant in respect of Plot No. 79, Block 2 and 3, Khartoum North.

Some time in 1965, the suit was remitted to District Court, Khartoum for resumption of trial. The suit thereafter was completely heard by the District Judge and a decree on judgment was entered in favor of the applicant-plaintiff on October 20, 1968 for £S.I,064.750m/ms. in all.

On November 4, 1968, the respondent-defendant submitted an application for revision against that decree to His Honor the Province Judge, Khartoum Circuit. His Honor the Province Judge allowed the application for revision to consider an issue that was not raised at all in the application for revision submitted to His Honor, viz, whether the District Court, Khartoum, has jurisdiction to entertain a claim in respect of an immovable property situated in Khartoum North. His Honor the Province Judge somehow arrived at a conclusion that the District Court had no jurisdiction to hear that suit and that the District Court in Khartoum  North was the court of jurisdiction. Thereupon His Honor the Province Judge quashed the proceeding of HC-CS-428-1963 as null and void for want of jurisdiction (HC-REV-447-1968).

Hence, it is against that decision of His Honor the Province Judge, that this application for revision is lodged.

This court has allowed the application for revision to consider two matters

(i) Whether the court—any court—can frame and decide an issue on jurisdiction (place of suing) without the matter being raised by the parties or any one of them.

(ii) Whether in the specific case before us the District Court, Khartoum, had no jurisdiction to entertain that case because the real property subject of the suit is situated in Khartoum North?

What is jurisdiction?

“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, Charter or Commission under which the court is constituted and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited” Halsbury, Laws of England (2nd ed.,1933),Vol.8,pp.531-532 .

The limit on authority may be as to the subject-matter, as to person, as to the pecuniary value of the suit, or as to the place of suing or it may partake of two or more of these limitations. In the suit, subject of this revision, the objection raised by His Honor the Province Judge is concerned with the limitation as to the place of suing.

In India the matter of objection as to the place of suing is definitely settled by the provision of the Code of Civil Procedure, s. 21. This section provides that:

“no objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.”

The appellate courts in India will not disturb the judgment of the court of first instance, even though the objection has been raised in time and wrongfully disallowed, unless the trial in the wrong court had led to a failure of justice.

“The appellate court must go into the merits of the case and form an opinion upon the justice or otherwise of the decision of the first court.” Vol. I, Mulla, Code of Civil Procedure (13th ed., 1965), p. 161.

In England the objection to the jurisdiction in respect of place of suing must be pleaded.

“Moreover, the defendant waives the objection if, knowing the facts, he enters an unconditional appearance to the writ,” Odgers, Pleading and Practice (18th ed., 1963), p. 125.

In the Sudan the objection to the jurisdiction of the court in respect of place of suing shall also be pleaded, in the light of the provision of the Civil Justice Ordinance, s. (i) (f). This is so because the plaint whereby the suit shall be initiated shall contain facts showing that the court has jurisdiction; then when the defendant, in his statement of defence, avoids replying to those facts which tend to assert the jurisdiction of the court to entertain that suit and enters an unconditional appearance in the suit, the defendant is deemed to have waived the objection.

This court, is therefore, of the opinion that His Honor the Province Judge was wrong when His Honor raised and decided the issue of jurisdiction as to place of suing which was never pleaded either before the court of first instance or before the court of His Honor the Province Judge.

In Sayed Abdullah El Fadil El Mahdi v. Arab Bank, Khartoum (1962) S.L.J.R. 163, a suit in respect of land situated in Blue Nile Province was allowed by Khartoum Province Court. The learned advocate for the applicant objected. in writing, to the jurisdiction of the court to entertain that suit. The objection was allowed by the Court of Appeal (Babiker Awadalla J.) and the court ordered, in addition, the refund of fees paid on plaint to the applicant-plaintiff on the ground that “the proper order which ought to have been made in this case is one of rejection of plaint under Civil Justice Ordinance, S. 56.”

However, in Mohamed Ahmed Zakaria v. Christos Simos (1964) S.L.J.R. 6, where the learned District Judge, Khartoum, decided the issue of jurisdiction on the strength of a mere affidavit filed by one of the parties, the Khartoum High Court (D. S. Abu Gazaleh P.J.) held that “the question of jurisdiction is a preliminary issues in the case.” Hence, “parties must be given a chance to produce their evidence and submission. Unless this is done no court can come to a proper conclusion.”

The other issue before this court, viz, whether District Court, Khartoum, had no jurisdiction to entertain the specific suit subject of this revision, because the real property therein involved is situated in Khartoum North must be answered in the negative, not only because the objection of jurisdiction was not taken before the court of first instance, but also because nothing can prevent the court of District Judge, Khartoum, from entertaining suits in respect of immovables situated in Khartoum North or anywhere else within Khartoum Province. The Civil Justice Ordinance, s. 46, provides that suits “relating to immovable property shall be instituted in the Province within which the property or a portion thereof is situated.”

It is clear that the objection to the jurisdiction of District Court, Khartoum, is one of local venue and not one of incompetency. It is also clear from the plain words of section 46 that it defines the place of suing in terms of a Province and not in terms of districts or towns. Hence any court in Khartoum Province has jurisdiction to try suits in respect of immovable property situated in Khartoum Province.

The fact that Khartoum Province is divided into courts of limited jurisdiction as to areas does not per se rob any one of these courts of its jurisdiction conferred upon it by the express provision of the statute:

Arab Insurance Co. v. Musa Fadl El Mulla and Others, AC-REV-2o6- (1969) S.L.J.R. 136, is to the point.

This court is, therefore, of the opinion that the decision of His Honor the Province Judge, Khartoum, should be set aside, and the applications for. revision and cross-revision to His Honor should be decided on its merits.

Mahdi Mohamed Ahmed J. May 9, 1970 : —I quite agree. But the remarks of my learned colleague should be read as referring to objections as to place of suing and not original competence of the court. A decree rendered by a court of no competence is a nullity. I think the remedy open to a defendant in the case of an objection as to the venue is to apply for transfer under the Civil Justice Ordinance, s. 49.