(COURT OF APPEAL)*

HAMMED FEDEIL AND OTHERS v. ADIB GINDI

AC-REV-40-1965

 Principles

·  Civil Procedure –Enlargement of time –Civil Justice  Ordinance  s,214- Court may extend time when the is sufficient cause to allow revision submitted beyond the period specified by the Ordinance-Decree by analogy is sufficient cause

·  Civil Procedure-decree by analogy-No decree by analogy should be issued-Every decree must be passed with facts supporting it.

(i)when application for revision is out of time the court may enlarge the time specified by the Ordinance so as to accept such revision when there is sufficient cause under Civil Justice Ordinance, s, 214. issuing of decree by analogy is sufficient cause under this section.

(ii)a court cannot issue a decree by analogy, because of the similarities exiting between two cases but each decree must be issued on its own facts.
 

Judgment

Advocates : Shawgi Mallassi……………………………..for applicants

                    Garais Asad………………………………….for respondent

Osman El Tayeb J. September 6.1965:-This is an application for revision from the order of Province Judge Khartoum, date January 17.1965 dismissing summarily an application to him from the decree of District  Judge Khartoum dated July 2.1964. passed in favour of plaintiff for the payment to him by defendants jointly and severally the sum of Łs 3.600 and costs; the plaintiff claimed to be the aggregate of sums paid by him to defendants as loans advanced.

The learned province Judge dismissed the application made to him on the ground that it was out of time as it was filed on August 31.1964.  Hence  came this application, the grounds of which are that this case was decided without hearing of evidence but merely by analogy to anther case as regards  the apparent facts of the two cases. That  other case CS-319-1962, was instituted by one Ayad Gindi (the brother of plaintiff in this case) against the same defendants by way  of loans. The defense was that those sums were advanced, not by way of loan but as capital in the partnership in which he was member. The plaintiffs and the sums claimed in each case are different but the defendants and the pleadings are the same. The learned District Judge left this case pending

and proceeded with the other,  framed issues, heard the evidence and reached judgment in favour of the plaintiff.

Then, the two cases are identical, and one of the witnesses gave evidence in respect of the two cases and therefore by analogy a decree has to be passed in this case in favour of plaintiff.

This decision is now being attacked on the grounds that it is wrong to pass a decree by analogy without proper trial without hearing of evidence. Reference is made to Hoamoud El Zayat v. Mohamed Abdel Fattah (1960) S.L.J.R. 137.

Before dealing with the above point, it is essential to deal with the question of limitation of time, which is namely relied on by the learned advocate for respondent in his opposition to this application. It is submitted for applicants (defendants) that for the sake of Justice the learned Province Judge, as it was submitted to him, ought to have exercised his powers under Civil Justice Ordinance s, 214, by enlargement of time for s,226, not allow the delay in submitting the application for revision to be cause of injustice to applicant. Advocate Asaad submitted that the court can only enlarge time on the strength of the application  for revision  to because of injustice to applicant. Advocate Asaad submitted that by the party seeking the remedy and on proving or assigning sufficient that prevent him form preferring the revision within the time prescribed. The learned advocate quoted Rustom j, limitation (6th ed, 1958) p53,  where it is said that after the termination of the time allowed for appealing the successful litigant has obtained a vested  interest of which he should not be deprived.

I agree to this submission form a general point of view, but the application of the general rules depends on the circumstances of each case. True that no cause is shown here that prevented applicants form applying in  time. But it was shown that the case was dealt with in and entirely unsound rule, that of analogy and without hearing that, as it is submitted,  is apparently contrary to the principles of natural Justice. If this is true is my opinion, it constitutes special circumstances, that permit the enlargement of time or generally relaxation  of the rules of Procedure for the ends of justice.

I turn to the main point in this revision. I agree with the advocate for applicants that the learned District Judge was wrong in passing a decree by analogy, because of the similarities existing between the two cases. Every case must be heard on the evidence adduced by the parties to prove their allegations of fact. The rule is that no decree may passed without proof of the facts supporting it. Two or more cases, because of similarities between them, may be consolidated and tried
 

Jointly, and in that case the evidence has to be directed to cover all the relevant facts in each one of them. This was not done in  these cases. In Mohmoud El Zayat v.  Mohamed Abdel Fattah (1960) S.L.R.137,  The judgment said “if a series of case in pair material is stayed pending a decision of one of them as a test case, in pari material is stayed pending a decision of one of them as a test case, that cannot preclude  a disappointed party in any of the pending cases form insisting on a trial of his own case despite the probability of failure and the risk of costs.”  This is on the point. Though the issues are identical, the failure and success may not be the same if one plaintiff proved his case the other plaintiff may not be able to do the same. However the trial by analogy, as was  done in this case, is departure from the normal practice and is not in  consonance with rules of fair trial and the principles of natural Justice.

For these reasons this application is allowed, the decree is set aside and the case is sent back for trial.

Hassan Abdel Rahim P.J. September 6.1965:-I concur.

* Court : Osman El Tayeb J. and  Hassan Abdel Rahim J