(COURT OF APPEAL)*

IBRAHIM EL NAYAL v. NAFEESA MUSTAFA

AC-RE V-53-1966

 Principles

·  Civil Procedure—Decree against a party—It is wrong to pass a decree against a party who is unknown and not summoned

Plaintiff instituted her suit against the driver and the owner of the vehicle and certain insurance company for damages for persona) injuries. The owner of the vehicle died after institution of the suit and the insurance company was struck out on application of plaintiff. After hearing the evidence, the District Judge passed a decree against the heirs of the owner of the vehicle, without ascertaining or summoning them all, for payment of the damages. Province Judge confirmed the decree and allowed the District Judge leave to insert that liability of the defendants, heirs, is joint and several.
Held: Decree of the District Judge is set aside, because it is absolutely wrong to pass a decree against a part who is ascertained or summoned. Therefore the case is sent back for rehearing to ascertain and summon other heirs who were not ascertained or summoned.

Judgment

Advocate: M. A. Hassib for applicant

Osrnan El Tayeb J. February 19, 1967: - This is an application for revision from the order of Province Judge, Kordofan, dated January 25, 1966, dismissing a similar application to him from the order of District Judge, El Obeid, dated August 18,1965, awarding the sum of £S.1, 500.000m/ms. by way of damages for personal injuries.

It was on October 25, 1961, that Osman Ibrahim El NayaL since deceased, was driving a vehicle at Um Rwaba where the vehicle swerved from the road, violently struck on the sarif of a house, breaking it and rushing into the house where plaintiff, a girl of twenty-five years, was sitting. Plaintiff was hit by the vehicle and thereby sustained injuries. She was taken unconscious to Urn Rwaba Hospital and then to El Obeid Hospital where she stayed in bed for about four months. Her injuries were, severe fracture of the pelvis and contral dislocation of the left hip joint.

She has permanent partial disability assessed at 20 per cent.

Plaintiff instituted her suit against the said driver and Ibrahim El Nayal, the owner of the vehicle and a certain insurance company. Osman Ibrahim El Nayal died after institution of the suit, an order was made for production of a fetwa showing his heirs, but it has not been produced, and the case proceeded without it. It appeared that the insurance company joined in the case was not the proper one, it was struck out and another insurance company was joined but because it could not be summoned, it was struck out on application of advocate for plaintiff.

After hearing the evidence available the learned District Judge decided the accident happened through negligence, and passed decree against the heirs of Osman Ibrahim and Ibrahim El Nayal for payment of the damages as assessed.

The application for revision to the learned Province Judge was dismissed by him, and he granted leave to the learned District Judge to correct the decree to insert that the liability of defendants was joint and several.

The grounds of this application may be summarized as follows:

(a) That the insurance company was struck out from the case against the objection of defendants.

(b) That the case proceeded against the heirs without being ascertained and without being summoned to defend the case.

(c) That Osman Ibrahim, when he was driving the vehicle, was not a servant of Ibrahim El Nayal, so a to make the latter vicariously liable.

(d) That the negligence was not proved, and the rule of res ipsa Ioquitur was not applicable.

Dealing with these points in their above order, the first has to be dismissed straight away. The joining of the insurance company was applied for by plaintiff, and when it was found that some difficulties w en countered in knowing the proper company to summon it, and some delay had already been caused, plaintiff’s advocate applied for striking it out. Defendant’s advocate applied for rejoining it, and asked for service of summons by publication. He failed, after being given sufficient time, to pay the required fees, and so the insurance company was for the last time struck out.

It must be stated that defendants have not been hindered or prejudiced in the prosecution of their case by the absence of the insurance company. Normally it is not necessary for the proper decision of the case that it be joined, what is necessary is as to give the company the notice required by law in order to be ready to meet its statutory liability of indemnity of the insured.

The second point is serious in so far as the heirs of the deceased driver are concerned. The utterance of the learned Province Judge that the failure to produce a fetwa was a light irregularity is, in my opinion, wrong. The law requires (Civil Justice Ordinance, s.55) that the defendants must be properly ascertained, that they be properly summoned and be given a reasonable chance of defending their case. This is also a fundamental rule of natural justice, the departure from which may amount to miscarriage of justice.

On February 25, 1964, the learned District Judge made the order of producing the fetwa, and amending the style of the case to include heirs of deceased defendant. The fetwa was not produced, and the advocate who used to appear for the two defendants started to appear for second defendant only. It seems that he was careful to see that this was put on the record. It is strange to find the learned District Judge in these circumstances, join the heirs of Osman Ibrahim in the decree. The fact that deceased defendant was the son of second defendant does not mean by itself, that he was representing those unknown heirs.

The learned advocate for plaintiff though he argued that the said heirs were represented by one of them, second defendant, applied to this court that the heirs of first defendant be struck out of the case, allowing the decree to remain against second defendant alone. The learned advocate for second defendant—who has expressly said that he is not representing the said heirs, objected to the application. He maintained that the whole decree must be held to be bad and set aside.

It is absolutely wrong to pass a judgment and a decree against a party who was not known and not summoned, if it was an irregularity it was a substantial one, going to the root of justice. It cannot be allowed to stand. But what is the effect on the liability against the other defendant, supposing all the other points raised were ruled against him, I think it is serious. They are supposed to be joint tortfeasors, and their liability should be joint and several. By striking out the heirs or setting aside the decree against them, second defendant would be singly and solely liable to plaintiff.

This court may strike out a defendant at this stage of hearing the revision, if another co-defendant’s liability is not affected to his detriment, in either that the struck-out party was improperly or wrongly joined in a case where the co-defendant was principally liable alone, or that his liability would be unfavorably altered.

There is no alternative other than setting aside the whole decree, and sending the case back for reconsideration. I do this with regret in a case of damages for personal injuries, which has already taken many years before the court. The blame is on the District Judge, who failed to see that a defendant is not made known and not summoned until judgment is passed against him. Second defendant is the father of the deceased defendant; it was very easy to make him show the heirs of his sons by fetwa or even a declaration in court. Plaintiff has to see that the heirs are ascertained, or to apply for striking them off.

I need not discuss the two other points raised by advocate for second defendant, and they are still open before the District Court for any further evidence or arguments.

This revision is allowed, the decree of the learned District, Judge is set aside and the case is sent back for rehearing and determination. Costs shall follow the event.

El Fatih Awouda J. February 19, 1967: —I concur.