(COURT OF APPEAL)*

HASSAN GADAM EL KHEIR v. MOHAMED AHMED SHEIKH ALI AND OTHERS

AC-REV-300-1964

 Principles

·  CIVIL procedure-Limitation of actions –pauperism-material date when action allowed without fees

The period of limitation in a case of pouperism, runs from the date of allowing the case without fees by the Court.

Judgment

Advocates: Yousif Attalmanan……….……………….for applicant

                    Abdel Rahman M. Bashir………………..for respondents

 M. A. Abu Rannat C.J.  August 8, 1964: - The facts are short and simple. The respondents had prosecuted the applicant for criminal breach  of trust, that he was tried at El obied  by a minor Court and acquitted. On September 14. 1961. the finding of not guilty under Penal Code, s,  351, or of any other offence was confirmed by the Province Judge, and on an application for revision against the above finding the chief justice saw no reason to intervene with the finding. This decision was made on October 28.1961 and conveyed to the parties onn Octber 30.1961 .

On July 9. 1962 applicant submitted a petition to his honour the Province Judge at El obeid claiming Ł s 5.000 damages for malicious prosecution. On July 28.1962 applicant appeared before the Province jude and applied to sue as a pauper and he was told to submit separate application on August 11, 1962 applicant submitted a separate application  to sue as a pauper, and on December 15.1962 applicant appeared before the Province Judge and gave the address of the first respondent, Mohamed Ahmed Sheikh Ali at Dongola. The Province Judge summoned  both respondents for January 15,1963 on this date the parties were  examined by the District Judge, to whom the  application was transferred  by the Province Judge who decided that action be allowed without fees.

After the action was allowed, a preliminary issue as to whether the claim was statute-barred was framed and tried by the Honourable Mr. Justice Hassib, who found that the claim by applicant was statute barred .

This application is against the above finding of the Honourable the Judge of the High Court .

In an action for malicious prosecution, the cause of action accrues from the date of the termination of the criminal proceedings in the
 

Plaintiff’s favour, which was October 30.1961 and it is common ground that the limitation period for this  cause of action is one year from October 30.1961 . the important point in this application is the date of proceedings. Applicant contends that the date of commencement is the date on which he submitted his petition to the Court , i. e, July 9.1962,  while the respondents, contention is that the date of the commencement is the date on which action was allowed without payment  of fees, that is January 15.1963, and quoted in support of their contention the decision of this Court in Wahib Rufael Zaki v. EL Nagi and El Fiki (1958) S.L. J. R. 58, where it was held that the proceedings commence when action is allowed and fees are paid.

In this respect I refer to the following statement in Michael Franks, Limitationn of Actions (1959) pp. 25-26:

“In order to stop the statute, the originating process must be regular. If it is for some reason a nullity, time continues to run, but if (without being a nullity) it merely suffers form some defect which the plaintiff is able and entitled to use without seeing the Court’s aid, then the proceeeddings will have been validly commenced and time stopped. The distincion appears to be that in the former type of case , the distiniction apears to be bad while in the latter they are valid (at  any rate to stop the running power sets them aside. There is a third class of case in which the obtains the Court’s assistance e,g, leave for an amendment or alteration fo parties and there the Court refuses to intervene if to do so would deprive the defendant of vested rights under the statute.”

In my view the case before us belongs to the third class of case though in a different way. The applicant was unable to comply with Civil Justice Ordinance Ord XXL , r, 1, as he was unable to pay the fees and consequently no action can be allowed by the Court. Then he applied to sue as a pauper, and such an applicationn can only be entertained by the Court, after compliance with certain defined rules, i,e, the action cannot  make such an order without proof of pauperism. The general rule of the law of limitationn occurs upon the originating process from the Court i,e, the date on which the action is allowed.

Consequently this applicationn is dismissed.

Babiker Awadalla J. August 8.1964 :-I concur.
 

* Court : M. A. Abu Rannat C.J. and Babiker Awadalla J.

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