(COURT OF APPEAL)*

HASSAN DIRWEESH v. ALI HASSAN EL GAX

AC.REV-705-1965

 Principles

·  Civil Procedure—Procedure to sue as, paupsr—Civil Just Ordln Ord. VI— Failure to follow such procedure amounts to rejection o. applcation

Application to sue as pauper if not followed as required by Civil Justice Ordinance. Ord. VI, amounts to dismissal of the application, because it is material irregularity not to follow such procedure laid down in the Ordinance.

Judgment

Advocate: Shawgi H. Mallassi for applicant

El Fatib Awouda 1. August 15, 1966: —This is an application for revision from the order of the learned Province Judge summarily dismissing a similar application to him from the order of District Judge, Khartoum, allowing respondent to sue in forma pan pens.

Respondent, a messenger of the Sudan Bank was verbally accused by applicant, an employee of the same bank, of having stolen a sum of £S. 5.000m/ms. He brought an action on slander and asked for £S.500.000 (five thousand pounds) by way of damages. The District Judge took down a statement from respondent, on the plaint, that he had no money to pay the fees. He produced a letter signed by someone for the acting Town aerk, Khartoum Municipal Council, saying that he was poor and has no source of income. The District Judge took a brief state ment on oath from applicant and allowed him to sue as a pauper. The learned Province Judge opined that failure to follow the procedure laid, down in Civil Justice Ordinance, Ord. VI, was a mere irregularity not affecting the merits of the case or the jurisdiction of the court (section 182) and consequently refused to reverse the decision of the District Judge.

Advocate for applicant argued before us:

1. That for slander to be action able per se the imputation must be one of a crime for which imprisonment is imperative;

2. That the damages claimed are exaggerated. Respondent should not be allowed to sue as a pauper for that sum.

I do not agree with the opinion of the learned Province Judge.

The procedure contained in avil Justice Ordinance, Ord. VI, has been laid down as the only means by which the court is to ascertain whether the petitioner is a pauper for the purpose of litigation. II Mulla, Code of Civil Procedure, 1064 (12th ed., 1953), says:

“Utmost good faith is required of the petitioner in the matter of dis closures of his assets and an intentional departure from this rule (rule 2) must result in the dismissal of his application.”

Failure to follow the procedure contained in Ord. VI is not a mere irregularity that may be overlooked. It is a material irregularity and this court has constantly quashed similar orders where the procedure laid down for the purpose was not strictly followed.

For slander to be actionable per se the crime imputed must be a crime for which a person may be made to suffer physically by way of punish ment. The fact that a fine may be imposed in the alternative does not make any difference. This is the English law, which the learned advocate for applicant tried to persuade us not to follow. Whether his theory is acceptable or not I do not think the matter can conveniently be argued at this stage.

Are the damages claimed excessive, and if so should respondent be allowed to sue in forma pauperis?

In a tort actionable per se, where no special damage is suffered, only nominal damages are recoverable not by way of compensation “but merely by way of recognition of some legal right vested in the plaintiff and violated by the defendant.” Respondent did not lose his job by reason of that accusation nor did he suffer any other loss. The damages to be awarded to him in the event of his success are not therefore expected to exceed a few piastres.

Civil Justice Ordinance, Ord. VI, r. 6, reads:

“The court shall reject the application:

(C) Where his allegations do not show that he has a reasonable prospect of success in the suit.”

“success in the suit” must be taken to include success in the relief claimed. If a petitioner over-exaggerates the relief he is claiming and there is no likelihood at all of his being granted that relief or any sum in its neighbourhood then he has no reasonable prospects of success in the suit.

In the light of the above the application of respondent to sue in lorma pan pens should be rejected.

This application for revision is allowed and the order of the learned District Judge allowing respondent to sue as a pauper is hereby set aside.

No order as to costs.

El Rayah El Amin J. August 15, 1966: —I agree.