Administration . of .. Estates- N-otice upon Advocate-Genera1 in suit
~inst Administrator-Genera1- Whether court under duty to serve
. - .euch.not Lce ,

Civil Procedure- Notice- Government agent as party - Notioe upon
.Advooate-Genera1 in suit against Administrator-Genera1 - Whether
court under duty to serve such notice.

Plaintiff society submitted pet.itl,on to the High Court, applying

for a deo1aration-that a gift made in-favour of the Society was
a valid gift and should be registered. en being notified the
Administrator-Genera1 replied that any suit against him ·in his
capacity as administrator of an estate is a suit against the
Sudan Government and consequently notice of a claim or ~tention
to institute prooeedings must be served on the Advocate-Genera1'
before suit can be instituted.

~: (i) A suit mey not be allowed against the Administrator-
General as persena1 representative of a deceased person unless and
until notice has been given to the . Advooate-Genera1 as provided-

in the Civil Justice Ordinanoe 1929, s , 109.

(ii) Where action bas been allowed in the absence of such notice,
it is wrongly allowed, and the suit must be struck out. 'The court
itself mey, but is under no obligation to give the required notioe.

Civil Justice Ordinanoe 1929, s. 109~"

i~ril. lO,."lka, " •• an .•• -c.J.~;.1 Thia.-1s 1m--app'1ioaU.on for revision of
an order made by the JWige. of the High Co~hern Provinoe, that a

* Court: Flaxman, C.J. and Evans ~

nit raised by the plaintiffs against the defendant be struck out, it
appearing that the defendant (respondent) was "ued in hi~ official
capaoity, aM. notice, as required by section 199 of tho Oivil Justioe
Ordinanoe 1929, was not served on the Attorne~eral. The learned
judge held that in consequenoe no suit can lie 'against tHe defendant or
the Sudan Gov~rnment.

The grounds for this applica.tiCll are set out in datail in the
petition not., before the court. A oopy was served on the defendant,
together with notioe that the application would be decided on the written
submissions of .. the parties, . and this oourt .. has r.eoeived intimation that
he does not int~d to oontest the present matter.

It' will b'_} oonv<.}nient-to set out the faots as shown on the reoord.
em. July 20, 1942 tho vioe-:president of the Coptio Benevolent Society

of .A;li.ba:ca submitted-a. pe-titian addressed to the Judge of the High Court,
Northern Provinoe applying for a deo1aration that a girt made in favour

of the Copt1e ~evo1ell.t SOO~0ty was a valid gift and should be registered.
Acti'a& was al1owoo. on the' plaint, in spite of the fact that it failed

to oomply with t he legal raquirernents of a plaint, for no defendant was
named in it .and it WaG noted that a date for hearing would be f'ixed later.
The Adrriiniatratcr-Genera1 'ijaB notified by the Judge of the High Court in

a letter dahd August 8, 1942 that a suit had been allowed against him

for. rectification of the Register, and that a date would be fixed. This
letter .roo"ived the proper reply from the Administrator-Genoral that My
suit against him in his oapaoity as adr.l1nistraicir of an estate was a

suit aga.in$t .the Sudan Government, and referred to the provisions of
section 109 of the Civil JUstioe Ordinanoe, under which in such a case

_as this notioe of the claim or intention to institute prooeedings must

be served on the Advocat~eral before the suit can be "instituted.

On September 24, the Judge of the High Court Gin circuit notified
the Administratcr-Goneral that .the action was wrongly allowed, and
deo1ared hia intOJ:ltion of striking out the petition on hia return to
Damer. On th~-prooeedings being brought .. before him on No"ember 21, 1942
he made the ordor that the suit be struck out, end it is for revision of
this order that the present application lies.

It is not disputed that notioe was not given. The plaintiff submits
that in the ciroumstanoes of this case it was for the oourt to give
notice to the Advooa.te-Gel1er~l before action was allowed, and that the
non-service we.s an omisciOll of the oQ\lri, whioh oould have been remedied,
not by striking out the suit, but bl an adjournment of hearing until

the required notice had. been served.

Section 109 of the Civil Justice Ordinanoe 1929 is perfeotly explicit. ~
It is not permissive, and pe~its of no exoeption. A oourt is debarred

from entertaining a suit instituted without oomplianoe with its provisions.
~n~ plaint must be roj~cted until the notioe of the olaim has been served
either by the plaintiff or tho court and the presoribed period. has,

unless "laived, elapsed. None of these things were done in this case on

the prosentation of the plaint. It lias improperly . admitted , nothing as

to notice being said, when tho Governor as ex~ffioio Provinoe.Judge

allo,'led. aotion "for tho Judge of the High Court." Obviously this

irregular state of things oould not stand, and the learned Judge of the

High Court aoted in aooordanoe \dth the law in striking out this suit

''1hich should not have been allo\'led.

It is not easy to undez-at and \,lby this present applioatiOn has been
proceeded Hith. The order did not imply a judioial deoision on the.

merits of t he olaim, and the olaim is not 'res judicata. All the plaintiff
had to do Has to aorve notice on the Advooat-e-Genoral and then, if necessary,
tl) inatitute his suit when tho presoribed period of notioe had. expired.
Inato:::.rl he has coma to this court. It cannot seriously be argued that

the poucr of a court to relieve a plaintiff of service of the notice by
cerving it itself is other than disoretionary. It mey- be. that in the
o'i.r-oumct ances of this oaae , uhez-e mistol~es of the court .led to the

improper orlmission of the plaint, that the oourt might have assisted the
plaintiff to that extent, but it did not do so and it had. no suoh legal
obligation. I can find no grounds on \~hioh the learned judge's order

ought to be interfered •.. lith; it ~lo.S a proper order, and the applioation

to have it set aside must be dismissed.

l.a)Uo suit shall be instituted against the Government or against a publio
servant in respect of any act purporting to be done by suoh publio
servant in his offioial oapaoity unless and until either the plaintiff
or the Court to \,lhich his plaint is presented shall have served notioe
in Hriting of the claim or of .;'", intention to institute prooeedings
on the Advocate-Gencral and tllo r.:~;nths (or such shorter period. as the
Advooate-General shall agree) shall have elapsed after such servi oe ,

b)Such notioe chall state with all neoessary particulars the cause of
aotion, the name, description and place of residcnoe of the plaintiff,
and the relief \'lhioh he claims.

In all the oircumsta.nces of the case the court considers that,
although there will be no order as to the costs of this application,
the plaintiff might be given some relief in respect of the costs of
any suit he may bring in oonnection with this cla.im against the
Administrator-Genera.l, 'and it is directed that, should a frech plaint
be fJubmitt"d after the provisions as to notice have been compii ed
with, the fees paid by the plaintiff in the suit be applied tOHards
paym~t of the oourt fees in the fresh action.

Evans J.: I concur.

Application dismissed.