(COURT OF APPEAL)

GEORGE MIKHALI v. SALIH MUHSIN EL YAMANI

AC-REV-136-1960

 Principles

·  Civil Procedure—Service-—Defendant outside the jurisdiction—Service on agent— Agent must be authorised to accept

·  Civil Procedure—Revision-—Default decree—Application out of time—Court’s inherent power to waive limitation—Applicant absent from jurisdiction and not notified of decree

·  Agency—Authority—A gent outhorised to collect rents for principal—Not presumed to have authority to accept summons

Respondent tenant brought an action for recovery of rent paid against the applicant landlord who at the time was outside the Sudan. The summons to the applicant was served on his agent, who was authorised to collect rent. A default decree issued against applicant.
On revision of the Province Judge’s dismissal of the application in the Province Court on the ground that the applicant’s remedy, if any, was by way of application to the court of first instance to set aside the default decree, and also that the application was out of time.
Held: (i) An agent’s authority to collect rents for his principal is by no means an authority to accept summons; such service on the agent is therefore null and void.
(ii) It is the duty of the court of first instance to take steps to serve an absent defendant at his foreign residence.
(iii) The court has an inherent power to prolong the period of limitation and may accept a late application for revision where the applicant was outside the Sudan and it therefore took him a long time to take notice of the decree given against him.

Respondent tenant brought an action for recovery of rent paid against the applicant landlord who at the time was outside the Sudan. The summons to the applicant was served on his agent, who was authorised to collect rent. A default decree issued against applicant.
On revision of the Province Judge’s dismissal of the application in the Province Court on the ground that the applicant’s remedy, if any, was by way of application to the court of first instance to set aside the default decree, and also that the application was out of time.
Held: (i) An agent’s authority to collect rents for his principal is by no means an authority to accept summons; such service on the agent is therefore null and void.
(ii) It is the duty of the court of first instance to take steps to serve an absent defendant at his foreign residence.
(iii) The court has an inherent power to prolong the period of limitation and may accept a late application for revision where the applicant was outside the Sudan and it therefore took him a long time to take notice of the decree given against him.

Respondent tenant brought an action for recovery of rent paid against the applicant landlord who at the time was outside the Sudan. The summons to the applicant was served on his agent, who was authorised to collect rent. A default decree issued against applicant.
On revision of the Province Judge’s dismissal of the application in the Province Court on the ground that the applicant’s remedy, if any, was by way of application to the court of first instance to set aside the default decree, and also that the application was out of time.
Held: (i) An agent’s authority to collect rents for his principal is by no means an authority to accept summons; such service on the agent is therefore null and void.
(ii) It is the duty of the court of first instance to take steps to serve an absent defendant at his foreign residence.
(iii) The court has an inherent power to prolong the period of limitation and may accept a late application for revision where the applicant was outside the Sudan and it therefore took him a long time to take notice of the decree given against him.

Judgment

Advocates: Omer El Nur Khamis ……for applicant

Mirghani El Nasir, for Abdulla Abdel Hadi ... for respondent

M. A. Hassib J. January 3, 1961 :—This is an application for revision challenging the decree in CS-57-1959 issued by Gedaref District Court on  March 7, 1959, and also the order of Kassala Province Judge on revision dismissing the application summarily, PC-REV-113-1959.

Shop in Plot No. 6. Block 10, Gedaref Suk, is the property of applicant (defendant) George Mikhali. The respondent (plaintiff) Salih Muhsin El Yamani has been the tenant of the shop at a monthly rental of £S.15 since 1951

On February 16, 1959 the tenant brought his action at the District Court against the landlord claiming £S.60 difference in rent wrongly recovered by the defendant. The suit was fixed for March , and summons issued to defendant who was then not resident in Sudan to be signed on his behalf by one alleged to have been his agent.

The so-called agent refused to accept the summons asserting he was not defendant’s agent for litigation. The court accepted the allegation by the plaintiff that the person who refused to accept the summons on behalf of the defendant was in fact the agent of defendant duly authorised to act for him on his behalf without ascertaining the facts forming the inference and a decree was given against defendant (applicant) in favour of the plaintiff on- the assumption that the decree was a default decree. It was given on March 7, 1959. This so-called decree also was never served on either the defendant in person or on the alleged agent.

On November 1, 1959, the advocate for applicant applied for revision to the Province Judge on the ground that the decree was not a default decree as the person assumed to have been an agent for the defendant was never authorised to accept summons for litigation.

The Province Judge dismissed the application for revision on the ground that applicant’s remedy, if any, was not by way of an application for revision but by way of an application to the court of origin for setting aside the default decree under Civil Justice Ordinance 1929, S. 69, and also the application was out of time.

Hence comes this application on two contentions: (1) There is nothing in the Civil Justice Ordinance 1929 disallowing an application for revision of a default decree. (2) Though the application before the Province Judge was out of time, the decree was never brought to the knowledge of the applicant, who was residing outside the Sudan and it took him a long time to learn of it at his residence of Cyprus. These are the two points raised in this application and I proceed to consider them in order.

First point. Was the person who was asked by the court to sign the summons a person recognised by the law as an agent? The authority given by the principal to the agent enabling him to bind the former by acts done within the scope of that authority may be given by writing, words or conduct. The allegation that the person required by the court to sign the summons was an agent relies wholly on the fact that defendant authorised the said person to collect rents on his behalf. This fact is not denied but resolved on the fact that the said authority was given by writing, which was admitted and examined by the court and found merely an authority to collect rents on behalf of defendant. The law concerning service of summons on behalf of defendant is contained in Civil Justice Ordinance 1929, S. 58 (3), which reads as follows:

Wherever it is practicable service shall be made on the defendant in person unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.”

The evidence adduced in the case on which the court relied was but a letter sent by defendant to that person requesting him to collect rents for him. That letter was read by us and we are of opinion that it was not an authority empowering him to accept service of summons on behalf of the defendant (applicant). The letter reads as follows:

“Gedaref, October 30, 1957

To: Salih Muhsin

Shiams El Din

Pravin Mehta

Tubia Bokhtar

Suleiman Gereis

Dear Sir,

Block 10/4

I wish to inform you that Mr. Suleiman Rofail Gereis does not wish to continue, as he is too busy, to be my agent.

Therefore I have appointed Mr. Vassilis P. Tyropoulis to be my agent for the collection of due rents from you and I hereby request you to pay the monthly rents as from November 1, 1957. to him (Mr. Vassilis Tyropoulis)

Thanking you,

Your faithfully,

(Sgd.) George Mikhali.”

[italics added.]

We are therefore satisfied that both the lower courts failed to construe Document No.1  in accordance with the recognised rules of construction. A person authorised only to collect rents is by no means presumed to act for the principal in other spheres.

It was the duty of the court of first instance, once it discovered that defendant (applicant) was not resident in Gedaref, to take steps for sending the summons to him at his residence of Cyprus in the normal and usual way for such service. Failing this the decree given against defendant (applicant) was but a nullity and it is neither in default nor in presence.

On behalf of the respondent (plaintiff) it was submitted that this was a ease in which the provisions of Civil Justice Ordinance 1929, r. 8 (i) of Order I, may apply, but we do not agree with this contention. Rule 8 (i) is intended to meet cases of businesses conducted by a manager when the suit is relating to that business. It is different from this case.

Second point. As regards this point, we agree that in a case where the defendant had no means of knowledge of the decree, the court should exercise its inherent power to prolong the period of limitation. In this case the defendant was outside the Sudan and it took him a considerable peiod of time to take notice of the decree given against him. He was entitled to the equity of the law.

In the result we order retrial of the suit with costs here and lower courts to applicant.

A. R. El Nur P.J. January 3. 1961 :—I concur