(COURT OF APPEAL)*

IBRAHIM MOHAMED ABDEL GADIR v. ALI EL SAYED AHMED

AC-REV-75-1964

 Principles

·  Civil procedure-limitation of actions-prescription and limitation ordinance, s,9-list of accounts does not amount to acnowledgment of claim Agecy-Fiduciary capacity-prescription and limitation Ordinance , 12- Agent equates with trustee for limitation purpose except in commercial transaction  

Held (i) A list of account sent by an agent ot his principal to be checked by him does not amount to aknowledgment of claim by the pricipal against him under prescription and limitation Ordinace,s,9.
(ii) An agent, being in a fiduciary position, is equated with a rustee for limitation purposes under prescription and limitation Ordinace,s, 12 except in “ commercial transaction” eg, when an agent is employed to sell goods.

Judgment 

Advocates: Ahmed Suleiman………………………….……………..for applicant

Bushara Ibrahim………………………………………………………for respondent

M. A. Abu Rannat C.J. July 20, 1964 – This is an application for revision against the judgment of the Judge of the High Court, Khartoum, dismissing an application for revision against a decree by the District judge dated April  29.1964 ordering  applicant to pay to respondent  Łs, 385.365 m/ms and costs.

The facts as far as can be ascertained are these; the plaintiff used to send from the south to defendant in Omdurman certain goods such as ropes wooden poles and hides which the defendants was selling and remitting their price to him it appears from the evidence that since 1956 there has been no   dealings between them and that plaintiff have been claiming certain amounts as credit balance of the account between them , and that defendant was disputing plaintiff’s claim.

On Novevember 15.1960 the plaintiff brought an action claiming for the defendant Ł711.193 m/ms on the allegation that it was the balance of a current account between him and defendant. The Court appointed an accountant as commmissioner to examine the parties, accounts, and the commissionner submitted a report the result of which is as follows:

1- price of 259 parcels of ropes at Łs 1.500 m/ms            Ł s 388.500

2- price of 11 parcels of poles at Ł s 2.000m/ms            22.000

3- balance of an account not accounted for               80.578

4- amount debited by mistake against plaintiff             20.000
 

5- price of hides                                                                4.385

Łs.515-463

6- deduct account of Awad sid Ahme                           130.098

Balance due to plaintiff                                                 Łs. 385.365

The District Judge accepted the amounts found by the commissioner and issued a decree for this amount and costs.

In his application for revision to the Judge of the High Court and to this Court, the defendant’s advocate raised the poinnt that the claim is statute-barred except in respect of 59 parcels of ropes which were consigned on November  25.1955.

On looking into the detailed items of the ropes, which were submitted by plaintiff in support of his claim, I find that with the exception of these 59 parcels, all the previous transactions of ropes were sent before November 25.1955 * an at  the last consignment was on July 14.1955.

Plaintiff admitted  in reply to this point, said that the transction was continuing until march  11.1957 , as is stated by the commissioner, and that defendant was also admitting this fact on reading the commissioner’s   report, I find that he said the amount unaccounted for was 259 parcels and not 159 parcels according to list dated March 11.1957 I looked in this * transactions contained therein were until June 14.1955. and the defendant  never admitted that he was indebted to plaintiff. What he said is that he was sending the list for checking the accounts. This does not amount to an acnowledgment of the debt. The imprtant words in the proviso, the prescription and limitation Ordinance s, 9 are “…or by part satisfaction of such claim and to the extent and from the date of such admission…” The fact that defendant sent to plaintiff a list of accounts and asked him to check it does not amount to an  acknowledgment of the claim. Thus I am bound to find that all the transactions in respect of the ropes are statute-barred except the 59 *  which were sent November  25.1955 .

The next point which was raised by plaintiff’s advocate is that the relation between plaintiff and defendant was not that of an agent and principal, and that even if it is conceded that their relation was that of agency, the defendant cannot plead the limitation of  time under the prscription and limitation Ordinance s, 12, since the agent was holding the plaintiff’s money in fiduciary capacity.

As to * believe there is sufficient evidence to show that defendant was the* of plaintiff for selling  the goods in Omdurman. this
 

Was what was found by the District Judge I see no reason to differ with his finding.

As to fiduciary relationship, I refer to the following statement contained in Michael Franks Limitation of Actions (1959) p. 69.

“ When considering agents employed by individuals apart from any trust, attention must be directed primarily to the arrangment between the parties for, as noticed above, the agent is equated with a trustee for limitation purposes because the principal has entrusted property to him on the strength of a pre-existing confidential relationship between them. Such relationship has been held to exist where an agent was entrusted with the general management of the principal’s affairs or property, or with property for a particular purpose, as to effect a particular investment, or with money for investment at his discretion; or with property for safekeeping.”

The same author adds on the same page:

“ The Courts have declined to extend this equitable doctrine to commercial transactions and in two cases agents employed to sell on commisssion have been held not to be fiduciary agents in the sense under discussion.”

The result is that defendant is liable to pay to plaintiff the price of 59 parcels of rope at Łs 1.500 m/ms as was found by the commissioner who fixed this price on the light of previous prices, plus Ł s 22.000m/ms price of 11 parcels of poles i.e. Łs. .88.500m/ms price of ropes and taxed at Łs 10.500 m/ms. No. advocate costs to applicant as the issue of limitation of time was not raised before the District Judge.

M.A.Hassib ] July 20.1965:- I concur
 

* Court : M. A. Abu Rannat C.J. and M. A. Hassib J.