(COURT OF APEAL)*

KHARTOUM TRADING AND INSURANCE AGENCIES LTD. V.

 ABDEL KARIM MOHAMED ABDEL KARIM

AC-App-20-1963

Principles

·  Civil procedure-Decree in absence of defendant-civil justice ordinance, s, 69-Applicable whether the decree is on the merits or for non appearance-No distinction between a decree on the merits and a default decree

The Civil Justice Ordinance does not distinguish between adecree on the merits and a default decree, but only between a decree passed against defendant who appears and one against defendant who  does not appear. Therefore a decree passed in the defendant’s absence, whether on the merits or not an application to reopen it lies under Civil justice Ordinance s, 69.

Judgment

Advocates; Mahgoub and dafalla………………….for applicant

Henry Riad……………………………………….for respondent

Babiker Awadalla j. januray 28, 1964:– this is an appeal against the judgment and decree of His Honour the Provice Judge Khartoum ordering appellants (defendant in the suit) to pay to respondent (plaintiff in the suit) the sum of Ł s, 924, 760m/ms. The claim arose out of a traffic incident at Omdurman when first defendant-while driving a taxi cab owned by second defendant-collided with a motor-cycle driven by plaintiff as a result of which collision  respondent had a fractured thigh. Third appelants are the insurers of the taxi cab for the purposes of the Road Traffic Act and were joined under the insurers (control) Act 1960, s, 33. the full facts of the case are to be found in the judgment of His Honour the Province  Judge and I see no reason to restate them here, Iwould only like to mention here that the judgment above referred to was given in the absence of all appelants and an order to reopen the case was refused by His Honour the Province Jude o the ground that the decree given in the case was not a default decree, but a decree on the merits.

Third appellants are now questioning not only the correctness of the  decree, but also the refusal to reopen.
 

The learned advocate for appellants contends that a decree on the merits can only  be passed after issues are framed and evidence led on both sides. He further contends that in the present case not even a prima facie was made out. He cites Mulla, code of Civil Procedure (12 ed, 1953) 639. where it is said :

“if the defendant does not appear and it is proved that the summons was duly served upon him,the  court may proceed ex parte. If the plaintiff makes out a prima facie case, the court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the court may dismiss the plintiff’s suit. Every judge in dealing with an ex parte case should take good care to see that the plaintiff’s case is at least prima facie proved. The mere absence of the defendant does not of itself justify the presumption that the plaintiff’s case is true.”

The decree in question is, therefore in the learned advocate’s contention, adefault decree, and good cause to reopen it was shown by third applicant whose failure to appear was the result of a mistake on the apart of   one of  their directors, who was the only responsible person having knowledge of the date of hearing and he left the country without notifying anyone of that date.

In the alternative, and assuming that there was no good cause for third appellants failure to appear, the court ought to have used its discretion under the rule in Societe pour la Vente des Produits Egyptiens v. fadl El seed Fadl  (1957) S.L. J.R 5. As regards the merits of the decree the learned adovocate contents that the claim was not sufficienttly proved and the damages awarded are excessive.

The learned advocate for respondent-in answer-said that the third appellants were summoned thee times but they failed to appear and it is therefore impossible for them now to contend that they have any sufficient or reasonable cause for non-appearance.

On the merits, he claimed that an appellate authoity is not to interfere with an award of damages except where the award is grossly  and excessively high.

In my view, this appeal should be dismissed. Although I do not agree with the views of His Honour the Provice Judge in support of his refusal to consider the application for reopening, yet there is no doubt that, even if he did consider the said application, he would certainly have rejected it for lack of any sufficient cause preventing applicant from appearing,. The fact that the failure of the company to appear was due to the negligence or inactivity of one of its diectors, in my view affords a good ground for refusing the application rather than for granting it. Nor can I see any reason for the court exercising its discretion in  favour

Of appellant under the rule in Societe pour la vente des produits Egyptins v. fadl El Seed Fadl (1957) S, L.J. R, 5.

In this connection, I would like to point out that to refuse to consider an  applicatin for setting aside a decree given in the absence of defendant on the ground that the decree was one on the merits and not a default decree does not seem to me to be sound law. The Civil Justice Ordinance does not distinguish between a decree on the merits and default decree but simply between a decree passed against a defendant who had appeared and one passed against a defendant   who did not appear. In either of these cases a decree can be one on the merits and whether it is or whether it is not an application reopen it would lie under Civil Justie ordinance, s, 69.

As regards the merits of the claim, there is no doubt that his Honour the Province Judge received sufficient evidence both as to liablilty and damages and this court sees no reason to interfere with his decision.

This appeal is therefore dismissed with costs.

 M. A. Abu Rannat C.J. january 28, 1964:-I concur.

M.. E. S. Gassouma J. january 28, 1964:-I concur.

* court: M. A. Abu Rannat C.J. Babiker Awadalla j. and M. E. S. Gassauma j.