Principles

·  CIVIL FROCEDURE — Attachment and sale — Car held under hire-purchase by relative of Judgment-debtors, who negotiated agreement and paid instalments — Insufficient evidence for attachment.

Execution of a decree was ordered against applicant which she held under a hire-purchase agreement, on the grounds that the judgement close relatives of applicant. were the actual hirers and beneficiaries, since they negotiated the agreement and paid instalments by standing bank orders in favour of the owner Applicant had made promissory notes for all instalments, secured by a mortgage on her house.
Held: The mere fact that judgment.debtors negotiated the hire-purchase agreement and paid the instalments by standing bank orders — which they could cancel at. any time “with impunity” — was not sufficient evidence to support the order of at tachment and sale, especially since applicant had secured the notes; Judgment debtors may have merely accommodated their relative as her agents.

Judgment

Advocates  Mohamed Ahmed Orabi …………….. for applicant

Grais Asaad……………………………………. for respondents

Babiker Awadalla, J., August 7, 1961 :— This is an application against the summary dismissal by the Honourable Judge of the High Court of an application to him against the decision of the learned District Judge. Khartoum, passed on August 28, 1960 in Execution-858-1958

On May 17. 1958, respondent obtained a decree against a certain Kamil Awad and others for a sum of £S. 137 and costs. A month later, i.e.. on September 17, 1958, she applied to the Khartoum District Court for execution of the decree by attachment and sale, inter alia, of taxi car No. K. 7386. On October 25. 1958. the learned District Judge wrote to Traffic Superintendent. Khartoum. to impound the car in question for attachment. On November 12. 1958, applicant applied to the Court against attachment of the taxi car, which, she alleged, belonged to her and not to the judgment debtor, and applied for its release. This objection was summarily dealt. with in the execution under Civil Justice Ordinance, Order XV. r. 23. and was ultimately dismissed. The learned District Judge was of the opinion that although applicant was ostensibly the hirer under a hire agreement with the owners (Ph. Haggar and Company. Ltd.). the real and beneficial hirers were the judgment debtors

Court: MA. Abu Rannat, C.J.. and B. Awadalla. J..

It appeared from the evidence adduced before the learned District Judge that both applicant and the judgment-debtors are closely related. It appears that it was lgbal Awad (one of Judgment-debtors) who first contacted the owners and made the preliminary negotiations for hiring a car, and it was only when the terms were agreed upon that he asked for the agreement as well as the promissory notes for the required instalments to be made in the name of applicant. It was lgbal who made the initial payment of £S.250, hut the receipts therefor were made out in the name of applicant. Applicant also gave promissory notes for payment of the £S.700 by seventeen monthly instalments of £S. 40 each and one last instalment of £S. 20. Payment of this sum of £S. 700 was further secured by mortgage of applicant’s house at Omdurman.

It was contended on behalf of respondent that applicant’s name was only used as a device to defraud creditors because, quite apart from the fact that lgbal made the agreement, the two other judgment-debtors, Kamil and Nagib Awad, are actually paying the instalments by standing bank orders in favour of the owners, Ph. Haggar and Company, Ltd., Against this, applicant argues that lgbal was only her agent in the transaction and that payment by bank orders was made by Kamil and Nagib for the simple reason that this mode of payment was insisted upon by the owners, and applicant had no bank account.

Lastly, the learned advocate for respondent contended that applicant cannot rely on the hire-purchase agreerment because. since all the money has been paid by judgment-debtors, applicant was a third party or stranger to the consideration.

Before this Court, all the above arguments were reiterated on behalf of respondent. but to my mind they are all far from convincing anybody that the real hirer and beneficiary under the hire-purchase agreement are judgment-debtors and not applicant. Both judgment-debtors and applicant are inter-related, and there is nothing unnatural in one of them repre senting the other in negotiating a contract or affording bank,facilities for his accommodation. Vis-a-vis the owners, applicant is the only person to whom they can look for enforcing the contract. Both the agreement and the promissory notes were made out in her name and she is the person who has given real security by mortgaging her own house. There is no way for the company to reach lgbal, and Kamil and Nagib can cancel their bank orders with impunity. It may be that in fact applicant is not the benefi ciary. but it takes much stronger evidence than what was hitherto adduced to prove this fact: It would be nullifying the whole law of agency in the realm of contract if we say, as the learned advocate for respondent now wants us to. that all are strangers to the consideration save the hand that gives the coins.

I am therefore of opinion that the decision of the learned District Judge was against the weight of evidence, but I notice that some evidence which could have been of some value in this matter was lost sight of. The car in question is registered in the name of a certain Wahba Mikhail under the provision of Road Traffic Ordinance, s. 11. Wahba Mikhail was not called as a witness to explain  how it was that he got this car registered in his name and’on what terms, if any, he is operating it as a taxicab. It was suggested to the learned advocates that the case be referred back for reconsideration after hearing such evidence, and it is gratifying that both advocates agreed to this course.

This application is therefore allowed with costs and the decision of the learned District Judge is hereby set aside. Case is to be sent hack for re hearing along the lines indicated above.

MA. Abu Rannat, C.J., August 7. 1961---        I concur.