(COURT OF APPEAL)

ARAB INSURANCE COMPANY v. MUSA FADL EL MULLA D OTHERS

AC-REV-206-1968

Principles

·  Civil Procedure—Jurisdiction of place of suing—Civil Justice Ordinance, s. 48— Defines the place of suing in terms of Provinces and not towns—Administrative divisions cannot overrule the express provisions of this section

According to Civil Justice Ordinance, s. 48, the place of suing is defined in terms of Provinces and not towns. Hence any court in the Province constitutes the local venue and the plaintiff is entitled to bring his suit in any of those courts, within the Province. The administrative divisions of territorial jurisdiction of District Courts within a Province, which confine the jurisdiction in such courts to one town or a particular area, cannot overrule the express pro visions of the above section.

Advocates: Salah Mustafa for the applicant

Mustafa Abdel Gadir for the respondent

Judgment

Mahdi Mohamed Ahmed J. March 20, 1970:- Applicants were the insurers of vehicle No. 4K 3015. On May 26, 1963 the said vehicle was involved in a collision with truck No. 5K 3279 driven by first respondent and owned by second respondent. As a result of the accident, which was caused by first respondent’s negligence, applicant as insurers paid £S.40 costs of repairs sustained by the insured vehicle. They instituted CS-2392-1963 at Khartoum District Court to recovered the said sum.

In the middle of hearing applicants’ case respondents objected to the jurisdiction of Khartoum District Court on the grounds that the accident took place in Khartoum North and they—respondents—reside and carry on business in Khartoum North. The trial court sustained the objection and dismissed the case. The application to His Honour the Province Judge for revision was summarily dismissed. Hence the present application.

At the outset it must be pointed out that the objection is one against the local venue and not the competence of the court. It must also be pointed out that the Civil Justice Ordinance, s. 47, is not applicable to the facts of the present case as it deals with the case where the cause of action occurred in one province and the defendant resides or carries on business within another province. Hence the provisions of the Civil Justice Ordinance, s. 48, should govern the point. According to this section the plaintiff has the choice to bring the suit in the Province where the cause of action wholly or in part arises or the province where the defendant at the time of the institution of the suit resides or carries on business. In the present case the cause of action arose and defendants reside and carry on business in Khartoum Province.

It must be noticed that the Civil Justice Ordinance, s. 48, defines the place of suing in terms of Provinces and not towns. Hence any court in that province constitutes the local venue and the plaintiff is entitled to bring his suit in any one of those courts. It is true there are organizational divisions of territorial jurisdiction of District Courts which confine the jurisdiction of such courts to one town or a particular area. But such divisions cannot overrule the express provisions of the law. It is the duty of the judges to see that suits are brought to the appropriate court according to the said administrative divisions.

Therefore, applicant is entitled to bring his suit in any court within Khartoum Province competent to see it. He can sue at Khartoum, Omdurman or Khartoum North. If the court to which the suit is brought is not the proper court according to the organizational division, the defendants can apply for transfer under the Civil Justice Ordinance, S. 49, but not for dismissal.

In my opinion the order of the learned District Judge dismissing the suit for lack of jurisdiction is wrong and must be set aside.

Respondents should bear the costs of this application.

Ramadan All Mohamed 1. March 23, 1970:- I agree.