Case No.:

(AC.APP-4-1959)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Partnership—Dissolution—whether by conduct possible—Action for accounts—Laches

A partner, in a merchandise shop, liquidated a share of his in the firm and went abroad with the intention of abandoning the country but later returned to the Sudan when he became virtually a bankrupt, and then made a claim for accounts, alleging that a newly made mineral-water shop and a refreshment shop, established by the first respondent and defendant, and a coffee house, established by the second respondent, were partnership property, and that he was theretore entitled to his share in them.
Held: That although an action for account may stand against the first partner ship or firm, the applicant had shown by his conduct that he intended to abandon his share and that therefore the equitable doctrine of laches applied

Judgment

                                                          ((COURT OF APPEAL)*

MOHAMED MAHMOUD EL lBS V. SALAH MAHMOUD EL lBS

AND KAMIL MAHMOUD EL lBS

(AC.APP-4-1959)

                                             (AC-APP-5-1959).

Advocates: Abdel Wahab Mohamed Abdel Wahab….. for applicant

                   Mubarak Zarroug………………………… for respondent

February 29, 1960. A. M. Imam 1. : —This appeal has been submitted on behalf of Mohamed Mahmoud El lbs against the judgment and decree dated January 31, 1959 of the Province Judge, Northern Circuit, in which he declares that a partnership existed between the said Mohamed and a brother of his, Salah, one of the respondents (and defendants) in respect of a mineral-water factory, and made an order of dissolution and the taking of accounts in respect of the same, and dismissing the rest of the claim in respect of a refreshments and a merchandise shop.

The facts of this case, a hot family dispute, are clearly set out in the record, and leaving the details aside, it will suffice, for determining this appeal, to put forward only the framework of the story as follows: By a gratuity of £S.109 back in 1929, Mahmoud El Ibs, the father, started at Atbara a merchandise shop in partnm’ship with his eldest son Mohamed, appellant (and plairttiff). In 1934, the father died, and Mohamed with his two other brothers, Kamil, then twenty-five, and Salah, then a minor, both respondents (and defendants), and by a mutual family arrangement, agreed to continue the partnership in respect of the said shop and any other property or establishment to be acquired in the future. Things went on until the year 1947when Mohamed liquidated his share of the scheme,

*Court: M. A. Abu Rannat C A. M. Imam and Abdel Rahman El Nur JJ.

pocketed the proceeds and left for Egypt. Meanwhile a mineral-water shop was opened in Atbara cantonment. The years of the War were slump years. The merchandise shop was in a bad state. After the departure of Mohamed, however, Salah developed the said shop. Mohamed returned from Egypt in 1949 and went back again in 1950. No mention was made about the merchandise shop and no accounts taken. In I955 Mohamed returned fron Egypt for good. Meanwhile another mineral-water shop was opened by Salah in the Atbara market place—the old one, as appeared from the admissions made before us, remained in its place containing old plant. On his return Mohamed was entrusted with the sales of mineral water. He had nothing to do with the merchandise shop. In 1956, Mohamed refused to account for the proceeds of these mineral waters; hence this dispute. Long before this dispute, Kamil, an imbecile and by his own words a Darweesh and smuggler, broke off from his brothers and ceased to live in the family house, opened a coffee shop, which over the years was turned into a refreshments shop.

Mohamed raised this case for a declaration of partnership in respect of all shops: merchandise, mineral-water and refreshments shops, for dissolution and accounts. The court below found a partnership still subsisting in respect of the foremost and ordered, as stated above, dissolu tion and accounts in respect thereof; that though a partnership existed in respect of the second, that was dissolved in 1947 by the departure of Mohamed to Egypt, and refused to order any accounts in respect of the period prior to that year; that the last shop was the property of Kamil.

This appeal was fought on the facts. The only point of law worth mentioning was whether a partnership can be dissolved by conduct.

As we see it this appeal should fail. We see no reason whatever to disturb the finding of the court below in respect of the refreshments shop and. the mineral-water shop, in respect of which the partnership, though it might have been putto an end by conduct, could be revived, asthe learned Province Judge found, by subsequent agreement.

As for the mer shop, we agree with the learned Province Judge that the conduct of appellant (and plaintiff) and his apparent final departure from the Sudan amounted to abandonment. His learned advocate gallantly tried to satisfy us to the contrary in that Mohamed continued to send money by cheques from Egypt for the purposes of incorporating the same in the partnership capitally with Salah, producing Doc. 28. Even if Salah did receive these documents, we still think that the burden of proving that Salah did cash the cheques lies on appellant (and plaintiff), which he failed to establish. We are satisfied that appellant’s (and plaintiff’s) conduct in leaving for Egypt after selling his private property, his failure to ask for accounts in respect of the merchandise shop until i9 when this case was raised, amounts to abandonment by laches, despite his return once and his stay for about a year because of the aforementioned and his complete inaction after his second and last return. It is interesting to note that the said appellant (and plaintiff) while in Egypt, as humorously disclosed by the learned advocate for respondents (and defendants), attempted to pass for a Kuwaitan, by wearing “ogal” head-dress and changing the name of his business concern and did not think of returning to his country until he was in very shallow waters when virtu a bankrupt and when he knew that the business of his brothers was flourishing.

Independently of the statutes of limitation, a plaintiff may be precluded by his own laches from obtaining equitable relief. Laches presupposes not only lapse of time, but also the existence of circum stances which render it unjust to give relief to the plaintiff; and unless reasonable vigilance is shown in the prosecution of a claim to equitable relief, the court, acting on the maxim vigilantibus non dormientibus subveniunt leges, will decline to interfere”: Lindley on Partnership, 11th ed., p.573.

and:

“The doctrine of laches is of great importance where persons have agreed to become partners, and one of them has unfairly left the other to do all the work, and then, there being a profit, comes forward and claims a share of it. In such cases as these, the plaintiff’s conduct lays him open to the remark that nothing would have been heard of him had the joint adventure ended in loss instead of gain; and a court will not aid those who can be shown to have remained quiet in the hope of being able to evade responsibility in case of loss, but of being able to claim a share of gain in case of ultimate success”: Ibid. p. 574. See also Sherman v. Sherman, 2 Vans. 276.

For the above reasons explained, we dismiss this appeal and confirm the decree of the Province Court, Darner, dated January 31, 1959. Order 4 of the said decree, however, is to be amended to include plant in the old mineral-water shop in Atbara cantonment.

  M.A. Ahu Rannat C.J.: —l concur.

Abdel Rahman El Nur J.: —l concur.

                                                                                 (Appeal dismissed)