Principles

·  RECEIVERS — Liquidation of political party assets — Province Receiver — Duty to fake possession with diligence — Failure no defence to claim under Politicalpar,,es (Liquida Ion of Assets) Act 1959, s. 7 (2)

·  RECEIVERS — Claim to political party assets — Political Parties (Liquidation of Assets) Act 1959, s. 7(2) — Award to adverse claimant is an appealable “rejection” of claim.

·  ADMINISTRATIVE LAW—Province Receiver— Duty to use due diligence to obtain possession of political party assets vested in him by Political Parties (Liquidation of Assets) Act 1959, s. 4(1)

1959 S.7(2)

Pursuant to the Political Parties (Liquidation of Assets) Act 1959, the Khartoum province ver a number of cars registered in the name of the UmmaParty. Plaintitfs’ claim to some of these as the owners alleging that the  cars  were wrongfully registered to the Party, was rejected by the Receiver on the ground that (a) as to some of the cars the Receiver had never taken possession, and (b) others were successfully claimed by adverse claimants. tn the High Court the Receiver was upheld on the grounds that as to (a) the property never vested in him since he had not taken possession, and that as to (b), there was no appealable “rejection” of claim within the meaning of Section 7 (2) of the Act.

On revision to the Court of Appeal
Held: (i) The Receiver’s lack of diligence in obtaining possession of political party assets does not excuse him from hearing a claim properly filed, nor from defending any appeal therefrom, under Political Parties (Liquidation of Assets) Act

Judgment

Court : Babiker Awadalla, J.

(ii) Refusal by the Receiver to hear a claim to political part assets on the ground that such assets were successfully claimed by an adverse third party is a recjection of claim appealable under political parties (liquidation of assets act 1959 s. 7(2)

advocate:          Kamal El Din Abbas ……………....for appellant

Mohamed Salih Mohamed, for the attorney general……….....for respondent.

Babiker Awadalla, J., (By authority of the Chief Justice),. May 1961:— This is an appeal by the heirs of El Sayed Abdel Rahman Mahdi under Political Parties (Liquidation of Assets) Act 1959, a. 8 against the decision of the Honourable Judge of the High Court, Khartoum refusing to entertain action in respect of about sixty one , cars alleged by appellants to belong to them but wrong registered in the name of the  Umma Party. These cars are contained in lists 1. and 2 submitted on behalf of the Attorney-General and filed in the proceedings.

It appears that at the time of liquidation of the Umma Party, about a hundred and five cars stood registered in the Party’s name. Appellants lodged a claim under Section 7(1) of the Act before the Province Received for rectification of the register in respect of all these cars in their favour, but he rejected the claim on all counts on the grounds:

a) As regards the 54 cars shown in list 1 above referred to, he knew nothing about them, i.e. he never took possession of them in his capacity as Province Receiver.

b) As regards the 7 cars in list 2, that he had already given his decision that these cars were owned by other claimants In whole favour an order to rectify the Register was made

c) As regards the remaining 44 cars, that after investigation he was satisfied that they were the property of the Umma Party

Appellants instituted legal proceedings before the Honourabla Judge of the High Court under Section 7(2), and he gave a preliminary decision  that it is only in respect of (c) that he could allow action because in so far as these 44 cars are concerned  there was a proper “rejection” of a claim by the Province Receiver justifying institution of proceedings under section. 7(2).

As regards.(a)and (b) the Honourable Judge of the High Court of opinion that no action is maintainable, because in the case of (a) first property in these cars did not vest in the Province Receiver, and in the case  of (b) there was no “rejection” within the meaning of Section 7(2) be the Province Receiver did not reject the claims, of third parties whose to the ownership of these cars was preferred to that of appellants.

It is from this preliminary decision that this appeal Is now and the Honourable Chief Justice has delegated to me his powers to dispose of this appeal Before me appellants were represented by Advocate Kamal El Din Abass and respondent (the Province Receiver) appeared In person and also by Sayed Mohamed Salih Mohamed on behalf of the Attorney-

After listening to arguments on both sides I am satisfied that the rejection by the Honour Judge of the High Court of appellants’ claim regarding the seven cars in list 2 is wrong. It is in my view void of all logic to say that where a thing is claimed adversely by two persons and it is decreed to one of them, the decision does not amount to a “rejection” of the claim by the other. In the present case, the Honourable Judge of the High Court is confusing “rejection” of a claim with the reasons which led to the rejection. The reason for rejection is quite immaterial. The Pronince Receiver cannot say to a claimant whose claim is turned down, “I am not rejecting this claim because I am accepting it in favour of a third party.” It is not the claim of appellants that was accepted in this case, and whatever the reasons for its non-acceptance, appellants’ claim was certainly “re jected” and they are now entitled to have it considered under Section 7(2)

As regards the claim of the cars contained in list 1, here again the Honourable Judge of the High Court was no doubt wrong in saying that the Province Receiver is only bound to hear a claim when, consequent upon the vesting in him of the property, he had actually obtained possession thereof. On the date the Act came into force, the Province Receiver be came the proprietory successor of the Umma Party and he cannot now make a defence which they could not have made. If sued by appellants for a declaration that cars registered in the Umma Party’s name belong to them, the Umma Party could not have succeeded in preventing a hearing of the claim by simply asserting that they knew nothing of the property in respect of which a declaration is sought. I regret to say that this unhappy state of affairs regarding this part of the claim arose by reason of the fact that no due diligence had been exerted to attain the ends for which the Act was intended. In the first place it does not seem that all reasonable efforts to get in all the property owned by the Umma Party had been made. The Province Receiver before me said that he had published a notice calling for delivery of all property by persons in possession, and that in so far as the cars were concerned, he had issued a notice to the Police with a list of all cars registered in the Party’s name, but that the Police were not able to trace all these cars on the road. To me that is no excuse. Knowing that there was such a large number of cars registered in the name of the Party and untraceable, the Province Receiver ought to have summoned for examination on oath any responsible official of the Party to give information as to the whereabouts of these 54 cars.

Secondly, there is no doubt that the Province Receiver did not examine appellants sufficiently when they appeared before him claiming the relief now sought in respect of these 54 cars. Had he done so, he would easily have discovered that these cars were available and were either in the possession of appellants themselves or in the possession of persons known to them.

It being now apparent that appellants are after a declaration that these cars belong to them, what are the duties of the Province Receiver? It is clear that his primary duty is to “get them in” by obtaining control thereof and then proceeding to hear the claim. The limitation of time under the Act would not apply to this hearing because it is simply a continuation of one duly made in time.

Lastly, I come to the question of the alternative claim for the value of the cars made by appellants for the first time to the High Court and rejected by the Honourable Judge of the High Court in paragraph 5 of his decision.

I entirely agree with the Honourabte Judge of the High Court that this claim cannot be entertained at this stage, and this applies as well to the 54 cars about ‘which the Province Receiver is now called upon to decide.

This appeal is therefore allowed. Costs to abide the event.