REPORTS

(COURT OF APPEAL)*

CAIRO BANK v. MOHAMED ALI BAHAYDAR

AC-REV-364-1964

 Principles

·  Egyptian Judgment—Requisites required in judgment to be recognis n the Sudan courts—

·  Egyptian judgment Ordinance, 1901, s. 8—(i) Jurisdictiuu of court in Egypt and (ii) the defendant has got the chance to defend the claim

Evidence—Egyptian judgment—Requisites required in judgment to be recognised in the Sudan courts—Egyptian Judgment Ordinance, 1901, s. 8—Onus of proving such requisites lies on person claiming the validity of the judgment

An Egyptian judgment becomes recognisable in the Sudan courts when the requisite required under Egyptian Judgment Ordinance, 1901, s. 8, are fulfilled, i.e., (i) Egyptian court has jurisdiction to entertain the suit; and (ii) the defendant has got the chance to defend the claim raised against him. Such requisites must be proved by the person claiming the validity of the judgment; either by pro ducing certified judgment with the relevant requisites shown on it or by proving the requisites by other evidence.

Judgment

Advocates:  Ogeil and Mallassi for applicant

Moharned Ahmed Orabi for respondent

Osman El Tayeb 1. March 2, 1965: —The advocates for applicant sub mitted a petition to the District Judge, Port Sudan, on February 6, 1963 asking for issue of execution process in what they called a judgment of Cairo Commercial Court of the United Arab Republic under the Egyptian Judgments Ordinance 1901, s. 6. The so-called judgment was attached to the petition. The District Court allowed the execution, issued an order of attachment and summons to the respondent to appear on March 5, 1964. On the latter date, advocate for respondent opposed the issue of process and submitted that the respondent was not summoned before the court of the United Arab Republic, and relying on section ro of the Ordinance, he submitted that the so-called judgment was obtained by fraud, and therefore it could not be executed in the Sudan. Advocate for applicant was given time to reply and on April 4, 1964, he submitted that the so-called judgment was “conclusive evidence of everything stated

نقص لعدم الضهور في الاسكان

Applicant applied on April 28, 1964 to the Province Court for revision. He restated his former argument and pointed out that instead of ordering stay of the execution, the learned District Judge ought to have framed issues on the question of citation as required by the Ordinance.

The learned Province Judge, on June 25, 1964 dismissed the ipplication summarily. And in his note of decision, referred to Egyptian udgmcnt Ordinance, s 9 and ro as to the tenability of the plea of fraud on the grounds of lack of appearance or lack of service of citation, which would render the judgment not conelusive evidence of its contents. He ended by saying that applicant could have availed himself by joining issues with respondent on the particulars of the plea of fraud.

Applicant applied, on Agust 16. 1964 for revision to this court, On the ground that the onus of proof of lack of appearance or lack of service of citation rests on respondent and prayed that the judgment be passed accordingly.

There appears some confusion in these proceedings, which may be contnbuted to lack of proper understanding of the provisions of the Ordinance, which renders an Egyptian judgment recognisable in the Sudan courts, subject to certain specific requisites being fulfilled by it; they are stated in Egyptian Judgment Ordinance, s. 8, which may be under stood to mean that (1) the Egyptian court has jurisdiction to entertain the cause of action from which the judgment arose; and (2) that the defendant against whom the judgment is sought to be recognised has been given notice and chance to defend that action brought against him. The reference to jurisdiction is in clauses 3, 4 and 5 of the section (the defendant was domiciled or ordinarily resident in Egypt, the action related to property situated in Egypt, and the cause arose from a contract entered into in Egypt or intended to be there executed . . .), the rest of the clauses dealt with the giving of the chance to defend that springs from the prin-ciples o natural justice. (The defendant appeased befor the court. or the citation was served on him personally in Egypt)

These requisites must appear from the judgment or otherwise be shown. We are of opinion that the petition of the plaintiff, whether it be for instituting a suit on the Egyptian judgment or for its execution, must state those of the reqwsites that are relevant to the judgment for the purpose of its recognition, it must also be stated that those relevant requisites appear from the judgment itself, as certified or verified, or that they will be proved by other evidence. The court shall not accept the petition unless it is so drawn to show those relevant requisites that must be fulfilled by the judgment. As a certified and verified copy of the judgment has to he attached to the petition, it shall be examined care fully on what is stated in the petition. Then the reply or opposition of respondent would be clear and specific, and on every point in dispute an issue has to be framed.

As to the burden of proof, the general rule of evidence is that the party who asserts the affirmative shall have to prove it: this applies, it seems to me in every case when an Egyptian judgment is invoked, even with respect to those requisites that appear in the judgment itself, except as to those that the Ordinance made the judgment conclusive evidence thereof.

The scrutiny of the instruments of the Egyptian court that were required to be executed in Port Sudan District Court, the place of resi dence of respondent, does not show the requisites of section 8 especially as to appearance and service of citation on respondent personally in Egypt. Doubts have been entertained as to whether those instruments were judgments within the meaning of the Ortlinance. It was represented to us that they, as they were titled “ order of payment.” were orders issued pursuant to a sort of summary procedure that did not require service of citation or appearance. If they were so, they are not recognisable by the Sudan court. So it is important that the court of first instance should ask applicant to satisfy it that the said orders were judgments within the meaning of the Ordinance.

This revision is dismissed, with direction to the District Judge to ascertain and frame the relevant issues and proceed with the hearing.

Bahiker Awadalia C.J. March 2. 19 concur. I am glad that th advocate for applicant in this case has made the s suggestion that the cace goes back for a rehearing with a view to determining whether an ex parte order of the type now suoht to be enforced by execution is a “ udpnient “ within the meaning of the Ordinance or otherwise. (