(COURT OF APPEAL)*

CAIRO INSURANCE CO. v. BAKHEITA WIDATALLA AND ATHERS

AC-APP-29-1965

Principles

·  Civil Procedure—Time for appeal—Civil Justice Ordinance, Ord. XI, r. i—Time fixed may be extended by court if there is no negligence to bring the appeal in time— Civil Justice Ordinance, s. 214—Using inherent power of the court

·  Insurance—Joinder of parties—Insurance company may be joined as a co-defendant— Insurance (Control) Act, 1960, 5. 33

·  Insurance—Right to appeal—Insurance company who is not party to the litigation has right to appeal against judgment passed against insured party

·  Civil Procedure—Minors—-Guardian ad litem—Civil Justice Ordinance, s. 114—When minor is suing or being sued alone; failure to appoint guardian ad litem renders the suit null and void Civil Procedure—Minors——Guardian ad litem—Civil Justice Ordinance, s. 114—When there is common interest of minors and adults in the Suit, failure to appoint guardian ad litem does not render the suit null and void

·  Civil Procedure—Minors—-Guardian ad litem—Civil Justice Ordinance, s. 114—When minor is suing or being sued alone; failure to appoint guardian ad litem renders the suit null and void Civil Procedure—Minors——Guardian ad litem—Civil Justice Ordinance, s. 114—When there is common interest of minors and adults in the Suit, failure to appoint guardian ad litem does not render the suit null and void

·  Damages—Quantum of damages—Unreasonable award—Mistake as regards application of the law—Appellate court may interfere to re-assess damages awarded by lower court

·  Damages—Death action—flow to estimate widow’s damages

(i) Civil Justice Ordinance, Ord. Xl, r. 2, limits the period during which an appeal shall be preferred by one month. But by using inherent powers vested in the courts under Civil Justice Ordinance, s. 214, the time fixed may be extended if there is do neglect on the part of appellant to bring the appeal in time.
(ii) According to the Insurance (Control) Act, 1960. S. 33, the insurance company may be joined as a co.defendant with the insured party.
(iii) An insurance company, who is not a party to the litigation with the insured party, has right to appeal against judgment passed against insured party, because according to Road Traffic Act, 1962,s.59, the company is liable to pay the amount of the judgment to the plaintiff.
(iv) When a minor is suing or being sued alone; failure to appoint guardian ad litem to represent him under Civil Justice Ordinance. S. 114, renders the proceedings of the suit null and void, because in such case the minor is incap able of protecting his interest.

(v) But, if the minor is suing or being sued with other adults, when there is a common interest in the suit; failure to appoint guardian ad litezn to repre sent the minor, does not render the proceedings of the suit null and void. In such case the interest of the minor is properly protected by the adults who have same interest with the minor.

 (vi) The Appellate Court should not disturb an award of damages made by a lower court except:
(a) Where there is a mistake of law as to the factors properly to be taken into account; or
(b) Where the amount was unreasonable.

(vii) Widow’s damages in a death action are husband’s wages, considering regularity of employment, minus husband’s usual personal living expenses, for a number of years estimated on consideration of all circumstances of death, future marriage, etc.
 

Judgment 

Civil Procedure—Time for appeal—Civil Justice Ordinance, Ord. XI, r. i—Time fixed may

Advocates:  Ogeil and Mallassi…………………………… for applicants

Abdel Wahab ElKhidir……………………………For respondents

El Fatih Awouda J. May 8, 1966: —This is an appeal from the judgment and decree of His Honour Abdel Magid Hassan, Province Judge, Northern Province, in his CS-271-1961.

The facts are briefly these:

Respondents are the widow and four minor daughters of the late Hammad Mohamed El Saghier. In the evening of November 17, 1960, while deceased was walking along a main road in Atbara town he was knocked down by a motor-car which was being driven by defendant; the owner thereof. Deceased passed away a short time afterwards. At the time of his death he was approximately 38 years old. His four daughters were aged 12, 7, and 2 years respectively, while the widow was 25 years of age. The children’s paternal uncle was appointed by the Sharia Court as their guardian and agent of the widow. He brought an action in the name of all respondents claiming recovery of £S.2, 000.000m/ms. damages on grounds presumably similar to those giving rise to a claim under the Fatal Accidents Acts against the owner and driver of the car. Action was allowed and proceeded with without appointing him or any other person as guardian ad litem for the minor respondents. Cairo Insurance Co., in whose name this appeal is preferred, were joined as co-defendants on the application of respondents’ advocate in their capacity as insurers of the car owner. The learned Province Judge passed judgment on June 24, 1965 against the owner of the car and held that as the liability of the insurers is based on a contract of indemnity there was no way of passing judgment against them.

The learned advocate for appellants maintains:

1.     The decision that the owner and driver of the car was negligent was against the weight of evidence,

2.     That the damages awarded were excessive.

The learned advocate for respondents on the other hand maintains:

1. That this court has no jurisdiction to upset an award of damages,

2. That as the judgment was not passed against the insurance company they cannot appeal therefrom,

3. That the appeal is out of time.

In discussing these points, I shall not follow the order in which they are enumerated. I shall start ott with whether this court can entertain the appeal though it is out of the prescribed time.

Civil Justice Ordinance, Ord. XI, r. 2, limits the period during which an appeal shall be preferred to one month from the date of the decree appealed from. This appeal was lodged almost six months after the date of the decree. Thus, applying the strict proiiision of the code, it should not be entertained. But should it not? Our courts being courts of equity have always declined to allow formalities to prevail over substance. This was emphatically declared by Babiker Awadalla J., as he then was, in Sudan Government v. Pio Madibo (S.L.J.R. 89, AC-REV-6o-1 We have been able to circumvent the rigidity of the code with regard to time limits therein laid by the use of the inherent powers vested in the court by the Civil Justice Ordinance, s. 214, where from the circumstances of the case it appears that some substantial injustice has occurred and the only obstacle in the way of removing that injustice is the question of time. There is a host of decisions in that direction. Though it is true that those decisions relate to revisions and not to appeals yet I can see no ‘logical reason why that same theory should not apply in the case of appeals. This statement is, however, subject to the qualification that failure to bring the appeal in time must not have been the result of neglect on the part of appellant. Negligence was not apparent to us in this appeal. So much for that.

I now turn to consider whether the insurance company, not being directly affected by the decree in the suit, cannot appeal therefrom.

The insurance company was joined from the early stages of the suit and continued to be so joined until the last stages of the proceedings. In passing his judgment the learned judge excluded the insurance company from liability thereunder because, he says, “the liability of the insurance company is based on a contract of indemnity.” With due rerpect to his opinion I failed to understand what the learned judge meant by that. The insurance company could and were properly and necessarily joined as co-defendants either under Civil Justice Ordinance, Ord. VII, r. 8, or under the more specific provisions contained in the Insurers (Control) Act 1960, 5. 33. When the latter section was enacted it was well known that the relationship between insurer and insured was one of indemnifier and indemnified. It should be added that even without resorting to that section an indemnifier could be joined by the use of third party procedure.

Let me now discuss the point at issue. The Road Traffic Ordinance 1942,s.55 (now the Road Traffic Act 1962, S. 89), was copied almost verbatim from the English Road Traffic Acts, ‘930 and 1939. In Windsor

V Chalcraft i K.B. 279 it was held:

Inasmuch as the underwriters, although not parties to the action,were liable under the provisions of the Road Traffic Acts, 1930 and 1934, to pay the amount of the judgment to the plaintiff, and under the policy to pay it to the defendant, they were persons aggrieved by the judgment, and as such were entitled to an order setting aside the judgment and giving them leave to enter an appearance in the name of defendant or in their own name, and to deliver a defence.”

MacKinnon L.J. in the course of his judgment said on p. 292:

“In this case it seems to me that by virtue of the provisions of the Road Traffic Act 1934, s. 10, the underwriters, the strangers to the litigation, have an interest in the action with a consequent right to set aside the judgment which is still greater that that arising by reason of the contract between them and the nominal defendant. They have an interest by reason of the liability imposed on them by statute to make good to the plaintiff the amount of the judgment and for that reason it seems to me that they, of all people, are the sort of strangers interested in the judgment, as being injuriously affected by it; who have a right, within the principle laid down by Bowen L.J. to intervene and ask to have the judgment by default set aside.”

(See Jacques v. Harrison (1884) 12 Q.B.D. 165 for Bowen’s principle referred to.)

Windsor v. Chalcraft [1939] 1 K.B. 279, was dealing with whether an insurer who was not a party to the litigation could interfere and have a judgment by default against the insured set aside. If an insurer could be given the right to set aside a judgment in default whether in the name of defendant or in his own name when he was a stranger to the litigation, a fortiori, the insurer who was made a party and defended the action in the court below should be given the right to appeal from the judgment though passed against the insured alone, for inasmuch as they were liable under the provisions of the Road Traffic Act 1962, 5. ç to pay the amount of the judgment to the plaintiff they were persons aggrieved by the judgment.

The next point for our consideration is the question of the non-appointment of a guardian ad litem for the minor respondents (plaintiffs) in this suit and whether such non-appointment would in any way affect the result of these proceedings. Our Civil Justice Ordinance, s. 114, reads: In every suit in which a minor is either plaintiff or defendant he shall be represented by a guardian ad litem.”

On the face of it, the section puts the minor plaintiff and the minor defendant on the same footing. The meaning and effect of this section on civil proceedings came to be considered by this court in two of its decisions. In Abdel Rahim Au El Hap v. El Fadil Mohamed Abmed, AC-REV- (1963) S.L.J.R. z8o, a minor whose mother was appointed by the Sharia Court to be guardian of his property and who was alone the registered leaseholder of a house, the mother in his name instituted a suit for recovery of possession of that house. The case proceeded without appointing the mother as a guardian for the suit. This court held:

“Failure to appoint a guardian ad litem renders the whole proceedings null and void and this court has constantly quashed proceedings on that ground.”

In Aisha Mohamed Au and Others v. Hassan Mahinoud, AC-REV-561-1964, the defendants were a mixed lot of adults and minors against whom there was a claim of ‘specific performance of assignment of a lease. The mother was appointed by the Sharia Court as guardian of the minors. The civil suit proceeded without appointing the mother as guardian ad litem for the minor. The Court of Appeal distinguished it from Abdel Rahim’s case. It said:

“The minor there was suing alone in his own single interest and the result of the proceedings in the lower court and in this court affects his own single interest. But in the present case the minors are not alone . . . five minors and three adults, and they all have common interest in undivided shares in the house in dispute . . .. It can be said to be the law that when a minor is sued alone or in his own single interest, and that he is not represented in the proceedings by a guardian ad litem any decree that is passed against him shall bav to be declared a nullity and unenforc against him.”

The court went to the extent of dedaring that failure to appoint a guardian ad litem for the minor defendants, in the circumstances of that case was a procedural irregularity which was not fatal to the result of the proceedings, and accordingly and for other reasons therein stated refused to quash them.

The purpose behind appointing a guardian ad litem for a minor party is because by reason of his age he is deemed to be incapable of protecting his interests. By looking at the wording of section ii4 we find that it speaks of ‘ a minor.” By reducing it to its strict literal interpretation it must be understood to mean when a minor is suing or is being sued alone or with others who are all minors. If he is one of several plaintiffs or defendants among whom there is an adult or adults who have an interest in common in the litigation then the proceedings will not neces sarily have to be quashed on failure on the part of the court to appoint a guardian ad litem for the minor party, because his interest is by that reason properly guarded, and non-appointment of a guardian ad literu becomes a. mere irregularity.

Applying this principle to our present case, I do not think that non- appointment of a guardian ad litem for the minor plain ti should render these proceedings null and void. The minors and their mother arc suing on a common interest, i.e., a lump sum representing the value of the dependency.

There remain two points for our determination, namely, whether the damages awarded by the court below were excessive and whether this court has no jurisdiction to upset an award of damages as assessed by a trial court. These two points I. will take together.

“This court” says Greer L.J. in Flint v. Lovell [1935] 1 K.B. 354, 360:

“Will be disinclined to reverse the finding of a trial judge as to the amount of the damages merely because they think that if they had tried the case in the first instance they would have giver a lesser sum. In order to justify reversing the trial judge on the question of the amount of the damages it will generally be necessary that this court should be convinced either that the judge acted upon some rong principles of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”

This classic statement of the grounds on which the Court of Appeal wMl interfere by re-assessment of the damages was approved by the House of Lords, in Davies and Another v. Powell Duffryn Associated Co1lierie. Ltd. [1942] A.C. 601 and by this court in Khartoum Municipal Council v. Misheal Cotran (1958) S.L.J.R. 85 AC-APP-31958.

The learned Province Judge in assessing the quantum of damages said that deceased’s monthly pay was £S.11.300m/ms. and that he died at the age of 38. That the widow was 25 years old and that she has four daughters and consequently has no hope of remarrying. Accordingly the damages claimed on her behalf were reasonable. As regards the daughters, the eldest was 12 years old and the others were 7,5 and 2 years old respectively. The modest income of their late parent and their entire dependency on him make it reasonable to award each of them the modest sum of £S.400.000mfms.

With due respect to the opinion of the learned judge, I failed to see the principles of law on which he based his decision in this respect. I am inclined to believe that no such principles were considered by him. Accordingly this court can interfere by re-assessment of the damages.

Unfortunately we have no legislation similar to Lord Campbell’s Act, otherwise known as the Fatal Accidents Act. But our court have regarded the English legislation and the technique evolved by the English courts in assessing damages in claims made under those Acts as a guide in claims of similar nature under the pretext of justice, equity and good conscience (see Sudan Government v. Zeinab Hammad Mohamed (1963) S.L.J.R. 196, AC-REV-104-1964), Lord Wright’s speech in Davies and Another v. Powell Duifryn Associated Collieries Ltd. [1942] A.C. 601 laid down the relevant matters for assessing damages in this kind of claim. I need not copy down that speech and it suffices to give the gist thereof. First, ascertain the amount of wages, which the deceased was earning. Then an estimate of how much was required or expended for his own personal expenses is made. The balance is then turned into a lump sum by taking a certain number of years’ purchase called the multiplier. This years’ purchase will generally represent the number of working years that would have remained to the deceased less a deduction in this number to represent uncertainties, e.g., the widow might have again remarried and other matters of the kind.

These are the broad principles, which the learned trial judge does not seem to have considered.

Respondents’ breadwinner was at the time of his death a worker in the employment of the Sudan Railways at a monthly pay of £S.12.000 approximately. He died at the age of thirty-eight. Having regard to his small income and the number of the members of his family, I would say that £S.3.500m/ms. represents the amount he used to expend for his own personal expenses and personal support. £S.8.500 will be the monthly value of the dependency, i.e., £S.1o102.000m/ms. a year. Now we come to the question of the years’ purchase and an exact ascer tainment of that is impossible. Lord Goddard C.J. in Heatley v. Steel Company of Wales Ltd. [1953] 1 W.L.R. 405, said:

“ . . .that the number of years’ purchase that a judge can reasonably take is entirely arbitrary, and entirely a matter of speculation.”

Having regard to all the circumstances, I do not think I would be exaggerating if I assumed that deceased would, but for the accident, have lived and continued to earn that sum until he reached the age of fifty-five. Thus the multiplier will be seventeen. This I will not cut down drastically for the following reasons:

The widow, young as she is, is emburdened with four daughters, which makes the prospects of a remarriage bleak in her case.

Unlike in England, a daughter in this country does not cease to be a dependant by reason of her coming of age. She remains a dependant until she is emancipated by marriage.

In the circumstances, I would reduce the multiplier to fifteen. The damages to be awarded in the circumstances should therefore be something like £S.1, 500.000m/ms.

What is the share of each of the dependants?

It is usual, when the deceased was both a husband and a father, first to calculate the family dependency and then apportion the resulting figure between the wife and each child separately. In the absence of a yard stick for the purpose, I think the Schedule attached to the Workmen’s Compensation Ordinance would have afforded a good basis for apportion ment of the figure. If that were applied the widow would have got half the amount. But each of the dependants seems to be content with what he got and I see no reason why we should re-apportion. The share of each should therefore be reduced proportionatey.

In my opinion this appeal should be allowed without an order as to costs.

Salah E. Shibeika P.1. May 8. 1966: —I concur.

Babiker Awadalla C.J. May 8, 1966: —l entirely agree, save that I would like to limit the cases in which a joint interest of minors and adults is the subject of litigation can be pursued in the Civil Courts, even though no guardian ad litem is appointed, to cases when there is no suspicion of fraud in the conduct of the adult co-litigants in their prosecution of the case.