(COURT OF APPEAL) *

EL KHIDIR MOHAMEE’ HAG v. GENERAL ADMINISTRATION FOR WATER AND ELECERICITY

AC-REV-502-1965

Principles

Judgment

Advocate: Attorney-General for respondent

Babiker Awadalla C.J. March 28, 1966 :—In my view this application should be allowed.

The point of contention in this case is whether there was an agree ment between the parties as to the supply of electricity and that was in fact the first issue framed.

On the date of hearing neither party appeared but someone called Fayez Mohamed Abdel Aziz purported to appear on behalf of r (plaintiffs) and was allowed to state his claim on oath. This was no doubt wrong, for proof of a claim presupposes proper appearance and Fayez was not called upon by the court to prove that he was a duly authorised agent of plaintiffs. The person who was duly appointed to appear for respondent was Advocate Sheikh El Din who himself did not appear and contacted the learned District Judge by telephone to give a default decree. It is deplorably bad that the learned District Judge

(Mohamed Ali El Hag) did not realise what he was doing when he granted the application. But even when hearing the evidence, the learned District Judge did not call for proof of the agreement under which the electricity was supplied, and which applicant was denying from the start. The learned District Judge ought to have insisted upon production of the contract contemplated by the Electricity and Water Supply Act 1960, s. II.

Before us, the learned advocate for respondent contested this application on the ground that as the application for reopening was made more than thirty days after execution was allowed, then it is impossible to interfere with the decree. That was of course also the view of His Honour the Province Judge Gassouma.

There is no doubt that the Civil Justice Ordinance, s. 69, seems to be misunderstood by many of those engaged in the administration of justice. lawyers as well as judges. The thirty days under section 69 commence from the date on which “any process for enforcing the decree.. . has been executed to the court by which the decree was passed.” The word “any” may be a bit misleading but what is meant is actually the “first” process. The object of the provision is of course to ensure that the defendant had full notice of the decree and this can only be ascertained when the first process of execution against him has been made and notice thereof given to the court which passed the decree by the officer of the court to whom the enforcement of that process had been entrusted. If thirty days have passed from that time and the defendant did not come forward with an application to reopen, then he has lost all chance of having that decree set aside.

We are satisfied that there is no evidence that applicant had had any notice of the decree except shortly before his application to reopen and therefore his application to reopen ought to have been considered.

This application is therefore allowed with costs and the order of His Honour the Province Judge confirming that of the learned District Judge hereby set aside and case sent back to the learned District Judge for a proper hearing.

Osman El Tayeb 1. March 28, 1966 : —I agree.

* Court: Babiker Awadalla C.J. and Osman El Tayeb J.