Civil Procedure-Arrest and attachment-Requirements of Arrest and At-
tachment Ordinance 1915, s. 3-Proof of intent to avoid court process
and of probability to delay or obstruct execution

When the plaintiff asks for the arrest of defendant under the Arrest
and Attachment Ordinance 1915, he must show (a) that the defendant has
absconded, or is about to abscond, and (b) either that the defendant in-
tends to avoid or delay the plaintiff or that it is reasonably probable that
his departure will obstruct or' delay the 'execution of any decree. Proof
that the defendant's departure must have the effect of obstructing the
plaintiff is not proof of such intent, for the plaintiff may be no better off
if the defendant remains in the Sudan. The Ordinance was not intended
to bring pressure upon defendants by holding over them the fear of arrest
and imprisonment.. The powers under the Ordiaance ought to be exercised
With great discretion, and the court ought not to act unless perfectly' satis-
fied by trustworthy evidence that the requirements of the section have been
met.

Arrest and Attachment Ordinance 1915, ss. 3, 4, and "6.
Civil Justice Ordinance 1900, s. 82.

Civil Justice Ordinance 1929, ss. 131-134.

Appeal

January 8, 1929. Bell C.J.: The appellant entered into a con-
tract on June 12, 1928 to serve the respondent in the Sudan. He was
employed in the Gezira. He came into Khartoum at Christmas time for
a holiday, the arrangement being that he should leave Khartoum to
return to his work on December 26. He resolved however to return
to England, and on December 26, while his contract of employment
was still in force, and without giving any notice to the respondent, he
left Khartoum for Port Sudan, having (it is said) already booked a
passage on a steamer from Port Sudan to England. On arrival at
Port Sudan, the appellant was, according to his story. met by a Govern-
ment official and told that he must return to Khartoum, and that if
he did not do so willingly he would be sent back under arrest. The
respondent says that he persuaded the appellant by telegram to re-
turn. However this may be, the appellant did return to Khartoum.

• Court: Bell C.J., Owen and Halford JJ.

On January 2, the respondent came to Khartoum. Certain conversa-
tions took place between the respondent and the legal advisers of both
parties. Finally in the afternoon of January 2,· the appellant had an
interview with the respondent. The appellant told his advocate that
nothing had resulted from the interview, as the respondent insisted on
his returning to work which the appellant absolutely refused to do.

On January 3, the respondent applied to .the Blue Nile Province
Court for leave to start an action against the appellant asking for
specific performance of the contract, or in the alternative £E.426 dam-
ages for breach of the contract. By another petition on the same day'
the respondent applied for an order under section 82 ofthe Civil Justice
Ordinance 1900 preventing the appellant from committing a breach of
contract, and an order under the Arrest and Attachment Ordinance 1915
preventing the appellant from leaving the Sudan, or ordering him to
pay the sum claimed into court or to give security for this slim. At
the hearing of this application the respondent produced the contract
to the court and made a statement on oath, the substance of which as
recorded is as follows: "The defendant has left his job and proceeded
to Poit Sudan en route for England. I persuaded him to return by
telegram. I saw him yesterday in Khartoum and he gave me to
understand he would return to Medani. I have today received a
telegram advising me that defendant intends to leave for England on
Sunday. I ask for an order under paragraph 3 (b) of the Arrest and
Attachment Ordinance 1915."

The Court then made an order:

"Issue order for arrest of defendant to bring him before. this
court to show cause why he should not furnish guarantee for his
appearance unless he pays forthwith the sum of £E.440."

This order was communicated to Khartoum. The appellant was
not in fact arrested, as he stated his intention of appealing against the" .
order. On January 5th the application for leave to appeal against the
order was made.

The material part of section -3 of the Arrest and Attachment Ordi-
nance 1915¹ under which the order was made reads:

"If at any stage of any suit of the value of £E.10 or upwards
the plaintiff satisfies the court by affidavit or otherwise

1 Editor's Note: See now Civil Justice Ordinance 1.929, ss. 131·134.

( 1 ) that the defendant, with intent to avoid or delay the plaintiff,
or to avoid any process of the court, or to obstruct or delay
the execution of any decree that may be passed against him,

(a) has absconded or left the jurisdiction of the court, or
(b) is about to abscond or leave the jurisdiction of the

court, ...

or (2) that the defendant is about to leave the Sudan in circum-
stances affording reasonable probability that the plaintiff will
or may thereby be obstructed or delayed in the execution of
any decree, that may be passed against the defendant in the
suit, the court may issue a warrant to arrest the defendant
and bring' him before the court to show cause why he should
not give security for his appearance. . . ."

If the court issues a warrant of arrest under this section, and the
defendant fails to show cause, then under section 4 the court shall
order him to deposit in court money or property sufficient to answer
the claim or to give security. If the defendant fails to comply with
such order, the court under section 6 may commit him to prison or may

        make an order forbidding him to leave the Sudan.              

Now it is clear from the wording of section 3 that the plaintiff
must first satisfy the court that the defendant has done one of the
things' mentioned, with one of the intentions mentioned, or that the
.defendant is about to leave the Sudan in the circumstances stated.
After the court has been satisfied it has a discretion whether or not it

shall issue a warrant of arrest. If the plaintiffIs proceeding under
the first part of the section, he must prove the intent; it is not. sufficient
to show that the mere fact of he defendant's leaving the jurisdiction
must have the effect of obstructing or delaying the plaintiff. If "the
plaintiff is proceeding under the second part of the section, he must
prove the reasonable probability that he will or may be obstructed or
delayed in the execution of any decree that may be passed. < The
plaintiff must, at the least, prove that the presence of the defendant
in the Sudan will make some difference in his (plaintiff's) favour in,
the execution of the decree which may be passed; he must show how
the absence of the defendant will obstruct or delay the execution.

In the case now before the court it is not clear whether the Pro-
vince Court decided that the appellant had offended against the provi-
sions of the first or the second part of the section.

There is no evidence whatever on the record to show that the .

conditions of either part of the section, so far as the appellant is

concerned, were satisfied. The mere fact that the appellant proposed
to leave the Sudan seems to have been regarded as sufficient. No
evidence has been adduced that the appellant had any of the inten-
tions mentioned. On the contrary, he had made up his mind to leave
the jurisdiction of the court and the country before the .suit had been
started.

Before the Court of Appeal the respondent at first relied on the
first part of the section, but ultimately said that the second part was
the more appropriate. The arguments stated in favour of the proposi-
tion that the appellant's departure from the Sudan would obstruct or
delay the execution of the decree were that the decree would certainly
be worth nothing if the appellant had already left the couritry; that if
he was detained, he might be persuaded to come to some arrangement,
he might see the desirability of obtaining money from some source in
order to payoff the amount decreed, and in any case he could work
and so give satisfaction of the decree.

It is not accurate to say that the decree will be barren if the ap-
pellant leaves the country, for it is admitted that the respondent holds
a sum of about £E.55 due to the appellant. It may be true that if
any larger sum is decreed, nothing will be recoverable if the appellant
leaves the Sudan; but this is not sufficient. Would the position be any
different if the appellant is detained in the Sudan? It is not alleged
that he is taking any property out of the Sudan; it is said in effect that
detention in the Sudan will exert pressure upon him to payor to make
some arrangement. But in my opinion it was never intended that the
Ordinance should be used to bring pressure upon defendants by holding
over them the fear of arrest, detention or imprisonment. There is
nothing in the Ordinance to warrant such 'a contention. It is contrary
to all principle that the civil courts should be made use of to assist a
plaintiff by what amounts to a threat to a defendant. It is impossible
to maintain that a debtor or a defendant can be detained in the country
merely on the ground that, if he chose to work, which he could not
be compelled to do, he would be able to satisfy a plaintiff's claim.

The powers given to civil courts by the Arrest and Attachment
Ordinance ought to be exercised with great discretion, and no court
ought to act under it on light grounds, or unless it is perfectly satis-
fied by trustworthy evidence that the defendant has done or is about
to do one of the things which justify the exercise of these powers. A