A&rignment~Debt-Validuy at assignment at debt where cl8btols cori8ml not

                  obtained                               

Or from being available according to law frcml pa~ent· of, the ~

                  of himself or such other person/                                                                      

Dishonestly or fraudulently removes or conceals or ass~ .in ,: remoViilg'
or concealing such propertly, or dishonestly or fraudulently transfei1l~" ~
livers or releases such pro'perty or any interest therein to" any persbD. •••
practices any deception 'touching the same,

Or diStlonestly or fraudulently accep~, receives, or' claims, -such
property or any interest therein, knowing that he has no ri~t 9t rightful
claim thereto shall be punished' with imprisonment for a term w~ ,JJ'ay'

                  extend to two years, or with fine, or with ~.                           

S,ee section185, S.p.C. 1925.

-Court: R. H. Dun C.J., and WaSey Sterry-Legal SeereIary Civil Practice and Procedure-Court fees-Refusal of leave to bring an aCupn
without payment of fees where . applicant has no reasonable prospect of
success

Conflict of Laws-Debt-Debt contracted in Sudan between parties of 'foreign
nationally-Law applicable

Reception-Assignment of debts-English and Egyptian rules-General comments
on reception of English law,

1. The consent of the debtor is not required for there to be a valid
assignment of a debt in the Sudan.

2. A debt contracted in the Sudan between an Egyptian debtor and
an English company, is governed by Sudan law and' not Egyptian law,
even though at the time of action the debt has been assigned to an Egyptian
and both parties are therefore Egyptian,

;3. "If there is a question of whether the courts of this country
should adopt English law or Egyptian law, the courts, should as a general
rule adopt the English law rather than the Egyptian, not so much because
it is the law to which English judges are accustomed and that if once
they begin administering a' law to which they are not accustomed and as
to the interpretation of which they have not much opportunity of inform-
ing themselves, they arf!' very likely to make mistakes - and end up
administering a law which is neither English nor. Egyptian."

Court Fees Rules 1915, Rule 12.

Egyptian Mixed Civil Code, ss, 436, 432, and 449.
Egyptian Native Civil Code. ss. 349 and 354.

Appeal

April 27, 1919. R. H. Dun C.J.: In my opinion this appeal is
hopeless.

This appellant appeals from a decision of His Honour Judge
Peacock refusing him leave to substitute an action against Aziz Kfouri
without payment of fees on the ground that he is not satisfied .. that
the appellant has a reasonable ground of success. See the Court Fees
Rules )-915, Rule 12.

'The Bank of Egypt Ltd. was an English company limited by
shares registered under the English Companies Acts and carrying
on business amongst other places in London, Cairo and Khartoum:

• The Bank went into liquidation and was wound up by liquidators in
  England acting through various agents in Egypt and the Sudan.

The appellant was one of its debtors: there were abortive
negotiations for a settlement and ultimately on November 22, 1913,
the bank presented a petition in Bankruptcy a~nst the appellant alleging a debt of lE.12,OOO and on April 19, 1914, he was de-
clared bankrupt.

On December 29, 1914, the verification of the Bank's claim was
proceed with and the appellant objected to the amount of the claim
on various grounds. On January 2, 1915, the appellant presented
to the Bankruptcy Court particulars of these objections. On March ,.
2, 1915, at a meeting of creditors, the appellant proposed a COQ)-
position, the representative of the Bank agreed on certain conditions.
On the same day the Bank's claim was verified at lE.13,060: the
appellant appears to have been present and it is recorded that no
objection was made to the claim.

On April 8, 1915, at a meeting of creditors, the appellant pre-
sented his proposals for a composition, the representative of the Bank
said his conditions had not been fulfilled.

Oil May 13, 1915, the composition question was again raised
and the appellant said the conditions had been fulfilled, the Bank's
representative denied this and the - appellant was then told he might
raise a civil claim on the- question if he wished.

On August 21, 1915, the Bank sold w Aziz Kfouri all its claims

against a number of debtors who owed money to its Sudan Agencies
for lEI0,500, the nominal value of the debts sold was somewhere
in the neighbourhood of lE.70,OOO, and included the claim of the
Bank against the appellant which was entered in the list of debts sold
at about lE.12,OOO.

The appellant's action was instituted by petition in 1918 for the
purpose of obtaining a declaration ( 1) that the assignment of the
, appellant's debts was invalid without his corisent or (2) that he was
entitled to discharge the assignee by paying him what he paid for
it and incidental costs.

It is quite clear that in English law such an action must fail;

the English law does not appear to me to produce in this case _ a : ,
result contrary to justice, equity and good conscience and 'on that
ground alone I would be satisfied to _ concur in dismissing this appeal.

A great deal of argument has been based on the Egyptian law
'which we are invited to apply. It is said that the appellant and .the _
_ assignee are both Egyptian local subjects, that the appellant's bank-
ruptcy is subject to Egyptian law - and the assignment of the debt
was made in Egypt, therefore the Egyptian law should apply. The
appellant's bankruptcy is subject to the Bankruptcy Regulations Proclamation published in the Sudan .Gazette of June 1, 1909, which
made the procedure of the Egyptian Native Commercial Code
applicable to Bankruptcies in the Sudan.' The debt was incurred in
the Sudan and an English limited company was the creditor and
consequently I am not prepared to say that Egyptian law should be
applied.

But even if it should be applied the result in my opinion' is the
same. We were referred to section 349 and 354 of the Egyptian
Native Civil Code 2 and to sections 436 and 439 of the Egyptian
Mixed Civil Code."

I do not think we can apply section 349 of the Egyptian Native
Civil Code because the original creditor was not subject to that Code
and the consent of the debtor was not necessary to an assignment by
him. Section 354 of the Egyptian Native Civil Code is in the same
terms as section 442 of the Egyptian Mixed Civil Code which I deal
with later. As regards section 436 of the Mixed Code it was argued
that the two modes by which an assignment of a debt can be valid
by notification to the debtor and consent of tile debtor must both
co-exist and are not alternatives, this is clearly not the case as appears
from Borelli Bey's notes on the section· and Mr. Halton's Treatise

1 Gazette No. 154. The Proclamation says: "In the administration of
bankrupt estates the Courts shall follow and apply the provisions of Chapter
III of the Commercial Code of the Egyptian Native Tribunals."

2 The reference is sections 349 and 354 of the Egyptian Native Civil Code
of 1901, published in the Official Journal on March 27, 1901, Section 349 reads
in part: "The ownership of the claim or right assigned is only transferred
and the sale is only valid when the debtor has given his consent. Such consent
must appear from a document; and in the absence thereof, no other means
of proof except admission on oath will be admissible against the debtor."

Section 354 reads: " .... when an action has been brought which puts
in issue the actual existence of the claim, the debtor, the claim against whom
has been assigned, may extinguish the right assigned on repaying to the
assignee the actual sum paid for the assignment, with interest and the costs
incurred."

3 Section 436 is almost identical with section 349 of the Native Civil Code
cited above. Section 439 reads:

"The vendor only warran1:s the existence of the right assigned at the
moment of the sale, and that only to an amount equal to the sum paid
for the assignment, together with expenses."

• Borelli Bey's notes could not be traced.

p.89.⁵ It was not argued that there had been no notification, but if
it had been so argued the answer is that notification can take place
at any time. Also I am not sure that notification was necessary
having regard to section 447 which deals with commercial debts.

As regards section 442, it is clear that it does apply because
the 'process' mentioned in that section must be 'process' existing at
the time of the assignment; see Mr. Halton's Treatise page 100.
This is also the interpretation placed on the corresponding section of
the French Code, section 1700⁶; see notes on this section: Dalloz 7.

For these _ reasons I am of opinion that under Egyptian law the
appeal should be dismissed.

Wasey Sterry, Legal Secretary and President of the Court of
Appeal: I agree that this appeal must be dismissed. It is an appeal
against the decision of Judge Peacock refusing leave to brlpg an
action without payment of fees on the ground thai the appellant has
no reasonable prospect of success.

In my opinion also the appellant has no reasonable prospect of
success. The appellant's only chance of success is if he can show:
(1) that the Courts here should adopt the law of the Native
Tribunals in Egypt as to assignment of debts, and

(2) that he would under the law of the Native Tribunals
be entitled to succeed.

As to the first, it appears to me that if there is a question whether
the courts should adopt English law or Egyptian law, the courts
should as a general rule adopt the English law rather than the
Egyptian, not so much because I consider it necessarily better, but

      ,      because it is the law to which English judges are accustomed and
that if once they begin administering a law to which they are not

5 The reference is to Mr. H. W. Halton's Book An Elementary Treatise
on The Egyptian Civil Codes, published by the Egyptian Ministry of Education
and printed in Cairo at the National Printing - Department in 1911. The page
referred t!' above is probably p. 89 of Vol. II where Mr. Halton says that the
assignment can "only be made perfect and effective by fulfilling one of two

             formalities:                                   

 (a) By simple notification to the debtor in 'writing.                                        .

(b) By the acceptance of the assignment by the debtor in writing."
6 This Section is identical to Section 354 of the Native Civil Code quoted
above.

7 The reference is to Dalloz Codes Annote's Nouveau Code Civil published
in Paris 1914. The section referred to is to be found in Vol. II at p. 224.