(COURT OF APPEAL) *

MIELIG RURAL COUNCIL v. MUSTAFA HAMID ISMAIL

AC-REV-475-1965

Principles

·  Civil Procedure—Procedure where plaintiff only appears—Civil Justice Ordinance. S. 64—No default decree to be passed without hearing plaintiff to prove his cause of action

Where at the time fixed, defendant who is duly summoned fails to appear and plaintiff does appear, the court must not pass a default decree; but according to civil Justice Ordinance, s. 6.4, the court must hear plaintiff to prove his cause of action.

Judgment

Advocate: Ibrahim Abmed Ibrahim…………………………….. for applicants

Babiker AwadaIla C.J. April 17, 1966:—The point for decision in this case is whether a court can pass a default decree without proof by plaintiff of all the facts constituting the cause of action.

Respondent alleged in this plaint that he was an employee of applicants—the Mielig Rural District Council in the capacity of a school master receiving £S. per month, and that on November 17, 1958. while on duty traveling in a car belonging to his employers he sustained physical injury in that his leg was broken and he was confined to hospital for nine months but was not-completely cured as the injury left a permanent disability assessed at 30 percent.

He admits that the expenses for his hospital confinement were paid by the defendant applicants. Nonetheless, he claimed from applicants the following:

(a) a sum of £S.22 under Workmen’s Compensation Ordinance 1949, s. 9 and

(b) a sum of £S. being expenses for private out-patient treatment.

The claim was disputed on the ground—inter alia—that at the time the accident took place claimant was not on duty but was traveling purely on a frolic of his own and contrary to the orders of his employers.

The proceedings were at first protracted through the joinder, as defendants of the Ministry of Local Government, and much argument was made for and against that joinder which in the end was refused by the court in a preliminary finding dated July 20, 1963. On that finding being confirmed by the Honourable Judge of the High Court. Khartoum, respondent applied to the Honourable the Chief Justice for the hearing of the case to continue in the Khartoum District Court where it was originally raised and that application was allowed.

The following issues were framed:

i. Was the accident the cause of the fracture and 30 per cent. Disability?

ii. Was plaintiff at the time engaged in a matter within his official province?

iii. Was plaintiff under hospital confinement for nine months at defendants’ expense?

iv. Is plaintiff entitled to claim a sum of £s.225 from defendants under Workmen’s Compensation Ordinance, 5. 9?

v. Is plaintiff entitled to claim a sum of £s.75 for private out-patient treatment?

vi. Was plaintiff at the time of the accident absenting himself from his official duties without the permission of his employers?

Hearing was fixed for August 3 and 4, 5964, but on that date plaintiff (respondent) appeared but none appeared on behalf of defendants (applicants) and plaintiff on oath claimed: “A sum of £S. as compensation from the Mielig Rural District Council for a fractured leg, a cleaver and stiffened knee joint, and costs.”

The learned District Judge immediately passed a decree in plaintiff’s (respondent’s) favour for a total of £S.323.

A few days afterwards the learned advocate for applicants applied for the default decree to be set aside on-the--ground that he was only a trifle too late on the date on question but his application was dismissed.

He applied to His Honour the Province Judge. Khartoum, for revision against the refusal to reopen case but his application was dismissed on the ground that it discloses no sufficient cause justifying action under Civil Justice Ordinance, s. 69. Hence the present application.

In my view this application should be allowed. This court has repeatedly been at pains to point out that a defaulting defendant cannot be penalised by the passing of a decree without proof, for Civil Justice Ordinance, s. 64, does not say that if defendant fails to appear a decree shall be passed but it simply says that in the circumstances the court shall proceed to hear the case.

The Workmen’s Compensation Ordinance, s. 6, says:

“If, in any employment, personal injury by accident arising out of and in the course of the employment is caused to a workman his employer shall. . . be liable to pay him compensation....”

So assuming that plaintiff is a workman within the meaning of ordinance—and that fact was not contested by defendant—then in order to receive compensation he must prove the disputed fact that the accident arose “out of and in the course of” his employment.

This was certainly not done and the case therefore was not “heard” within the meaning of Civil Justice Ordinance, s. 6.1.

This application is therefore allowed with costs and the decree of the learned District Judge hereby set aside the case sent back for a proper hearing.

Osman El Tayeb J. April 17. 1966 :—l agree.

* Court: Bob liter Awadalla C.J. and Osman  El Tayeb J.