IBRAHm AHMED EL AS/U) MID AI OTHER Plaintiffs v. SAYED ABDULLAHI Et FADIL AnD ANOrrIIER Defen4ants
Civil Procedure - Amendment cf plaint - Whether permitted after jUdgment
on a preliminary decreeJ
Civil Pr~cedure - Objection:J,,_ Timeliness- vlhether objection to joint
and several, liability untimely l~here made after issues framed and
trial over~,.
Costs and. fees- Commissioner's fee :. Hhether costs or partnership
e~enses in partnership actior.~
Partners~ip - Litigatio~ ex~enses-'Commissioner's fee - ilhether to be
treated a.s partner~hip expenses or costci
1. lfuere iss1.te~ c·;ere fr3.meo. and the trial fully con1utted on
the basis that the defendants ,'lere jointly and severally lic.ble an
objecti9n that the lia~)ility should be Geparat'.l is untimely and
111ill be rejected.
2. HIlere an application to amend the plaint to insert a claim
fOI' interest since bstitution of the suit is made after judgment
on a preliminary decree and the other party has hand.Led the pr-oce sd.Lngs
in a proper manner , the applicdion is uuti::1ely and "li11 be rejecte0 .•
3. Litigation expenses consisting of fees for a co~~issioner9a
re::,ert arc :::,roporly tr::lated 1),8 cos t a ('nd not a:3 pnrt:lsrship expenaea
\'Ihere the (":ef~pdant~ are partners.
JosoJph Tabet v. YOUlJl:3 Ahr:led,3 Sudan Law :1e;,ort~ (Civil) XXX (1945)v
AC-nEV-7-1945.
Civil Justice Ordinance 1929, s. 99.
Civil Justice Ordinance 1929, oz-d, 2, ,9 and crd. 23,
Action
In a ;.lE'.rtnorship act ion batt'leen four partners, a preliminary decree
* Court : Haye~ I J •
to take a. pa~tnership account was made on July) 28, 1948.
Hales, J.: July 1. 1950.: A comprehensive account has now been taken in
a.ocofdance with !l\Y' preliminary decree of July 28, 1948 and the Commissioner
has found that the amount due to the ho plaintiffs is LE.503l.l98m/rns.
Mr. Kronfli has accepted this on beha.Lf ,if the first defendant, Sayed
Abdullahi. There seems to be some doubt a.s to ,~hether Mr. Kronfli 110H
represents the second defendant, Abdel Karim, although he certainly
represented him throughout these long prooeedings. But in any case Abdel
Karim \~as summoned and hac not appeared.
lI":.r. Kronfli, hovever , hac raised a matter of {,"l'eat irr.portence.
IIhile adr.litting the fi[,1.1reo in the re~)ort I he hac c'La imed th'::,t -t;:lC report
itself indicates that judgment ohould go against Abdel Karim only, and
not against the tHO defendants jointly and severally. I do not think I
need spend long on this contention, 't>lhich is raised for the first time
at this eleventh hour. During the Hhole deal and the ,.hole trial the
trJO defendants were treated as one party and the tHO plaint iffs as anct her,
The allegation of breach \~aG made and proved against the tvl0 def'cndant a
together; Sayed Abdullahi expressly pleaded that he had personally shared
the burden of nanagemerrt , ac ":011 as that 8-f! that of providing finance.
If in f.::.ct he left the money or the materials in Abdcl Karim's hands, t:lat
was a mutter of private u~'I"-mGetlent bet"wen them, and cannot prejudice the
pl<1intiffs. I am oblicecl t~ reject t he contention and +'0 decide that
judgncnt \·Jill in:::ue a(S8.inct thc t uo (~of',;)'11~.l1tn jointJ.y and c;ev8rall~".
l>1r. Sorial has claimed to be a'l Louod to amend his plaint by inserti:rLg
a claim for interest at r. ine p ar cent from the date of institution of the
suit. He arGues that section 99 of the Civil Justice Ordinance 1929 must
be road cub ject to order 2, rule 8 H~lich Gives a genero.I discretion to
the court to perl:lit anenduerrt of plcac.ings, including of courne the plaint,
at any time before judgment. He cites in suprort Joseph To-bet v. Youni2
~, 3 Sudan La\~ Reports (Civil) XXX (1945), AC-REV-7-1945 in vrhd ch t!l<l
learned Judge of the High Court's decision to allo':J plaintiff to add. a
claio for interest, after hearing pl~intifr's and nome of defendant's
evidence, ~las approved. No z-easone are given by the learned Judge of the
High Court or by the Court of Appeals for the decision; but it seems that
both trib1.ula.ls thought thC',t defendant bad been guilty of delaying tact Lcs
in a gross f'orrn, I have no difficulty in dist ine,''llishing the present case.
Hot only 11<18 it cone to judgment on a prelir.1inary decree, but the proceedings
before me have been handled by the defendants in a proper manner. It
might well be that the defendants would wish to argue that delays in
selling and so on were in part due to the plaintiffs' default. I do
not thir..k that I can allow this afterthought. I might have allowed it
up to the preliminar,r dearee, but it is now too late.
As to the Commissioner's fee of LE.250, of which LE.50 has already
been paid into oourt by Sayed Abdullahi and paid out to the Commissioner,
I reserved the question of ,~hether this was to be treated ae a y;n.rtnership
expense or Hhethcr it was to be costs. I have come to the oon"lusion tnat
it should be costs, for a reasonable attitude on defendant's part WOUld~
:1ave made a commission unneceeaary, They will follow the event, and
therefore defendants must pay into oourt the balanoe, of LE.200. Sayed
Abdullahi ''iill, of course, be ent iHed to oharge Abdel Karim with his share
~f the LE.50 I".lread,j' paid.
'rhe l.o.st r.latter is an application by plaintiffs for LE.SO speoial
r;ClfJtf.l under order 23, ru10 6 l'lhioh I am asked to tax; ~1r. Kronfli suggesting
il1;:;teo.d 0. fee ~t t!10 rate of 20 P.T. per letter in the bundle. Mr. Sorial's
'cund l e conta.ined 1GO do C!U:.1ents I and so the differenoe between :them is only
i.s.ia. On the uhole, I prefer the lump sum; Mr. KronfH's method woul.d
~1ore locically call for 100 P.T. per latter., and I do not, think that he
\';JUld. like a. bill for LE.1150. I shall therefore allOi'l Mr. SO*ial LE.50.
Decree a ocorc1intl