(Hight court)

FATIMA ABDEL RAHMAN v. HEIRS OF MOHAMED ELAZRAK

(HC-Revision-5-1956)

Principles

·  Jurisdiction of Civil and Sharia court –Jurisdiction of Civil Court not affected unless suit commenced in Sharia Courts- Organisation and Procedure Regulation, s. 39 Constitutional law -Court of juisdiction – procedure to be followed

There can be no question of a conflict of jurisdiction between the civil and Sharia divisions of the judiciary unless a suit has actually been commenced in both divisions relating to the same subject-matter. In cases of doubt the orrect procedure is to apply to the High Court or Court of Appeal, as the case may be, in revision, rather than to apply directto the chief Justice for the convening of the ourt of jurisdiction.

Judgment

Revision

Advocate: Abdel Wahab Mohamed…… for the plaintiff.

In DC-CS-1811-1954 the District Judge, High Court (Cotran Ag. j.) ruled that there was conflict between the Civil and Sharia divisions of ‘he justiciary. He referred the matter to the Chief Justice, Semble with aview to convening the court of jurisdiction provided for in Self--Govern ment Statute, art. 8o. The Chief Justice ordered the file to be sent to the Sharia Court, Omdurman. This was an applichtion to the High Court for revision of the ruling of the District Judge.

M. A. Hassib J.: - According to the ruling of the learned District judge, High Court, the matter went straight to the Chief Justice. It did not go through the proper channel, viz., through the judge of the High Court. The Chief Justice directed that the District Judge. High Court should forward to Omdurman Sharia Court all the relevant documents in respect of the suit.

In the circumstances I feel fettered. I can do nothing, though I hold adifferent view. By regulation 39 of the Sudan Mohamedan Law Courts Organisation and Procedure Regulations, 1916, there can be no conflict of jurisdiction unless a suit is first instituted before a Mohamedan law court and then instituted before a Civil Court. But in this case there is no suit before a Sharia Court. Plaintiff has got a Sanad for a debt and her advocate stated that the debt was supported by good consideration, which would be proved at the trial. Whether Sanad was a genuine one or a forgery is not a question of jurisdiction. It is a question of evidence. Jurisdiction is a matter relating to the nature of the transaction; and the question sometimes arises: Is that transaction a Civil or a Sharia transaction? I agree with the view taken by the District Judge but I am, as I have already said, fettered by the direction made by the Chief Justice and the application should be left without remedy.

                            (Application for revision struck out; fees to be refunded)