(COURT OF APPEAL)

MOHAMED NASR ABDALLA v. IBRAHIM ABDALLA EL GARAI

AC-REV-307-1968

Principles

  Reception—Interpretation of Mohammadan law—Applicable where the main principles and concepts of the Ordinance were derived or borrowed from such law

  Civil Procedure—Specific performance—Discretionary remedy—Not granted if it would inflict great hardship and where damages would afford an adequate remedy

Civil Procedure—Law to be applied in absence of express provision—Civil Justice Ordinance, s. 9 precedent in such a law for the time being in force

In aid of interpretation of an Ordinance, Mohammadan law can be received where the main principles and concepts of an Ordinance were derived or borowed from the Mohammadan law.

Specific performance is a discretionary remedy which should not be granted when it would cause great hardship to the defendant and damages would fully compensate the plaintiff.

The expression “or any other enactment for the time being in force” under Civil Justice Ordinance. s. . includes any binding precedent for the time being in force.

Advocate: Ibrahim Ahmed Ibrahim for the applicant

Judgment

Mahdi Mohamed Ahmed 1. January 25, 1970 : —Applicant-plaintiff instituted CS-197-1963 in Khartoum District Court praying for the specific performance of an agreement for the sale of plot No. 15 Block 4 Dueims East, property of respondent. The latter—inter alia—pleaded insanity. The trial court on September 12, 1967 ruled that respondent was at the time of sale of a sound mind and decreed specific performance. Respondent petitioned the Province Judge for revision who applied a rule of Sharia law and reversed the decree of the trial court. Hence the present application.

The learned Province Judge based his decision on a rule of Sharia law which makes the validity of the dispositions of persons designated as idiots dependent upon the ratification of a duly appointed guardian. He refused to apply the rules of the English common law on the ground that such rules do not satisfy the requirements of justice, equity and good conscience. The present application attacks the plausibility of such election.

It goes without saying that the function of a court of law is to administer justice and that to fulfill the expectations of the parties is the essence of justice. It is assumed or ought to be assumed that when persons engage in business transactions they expect their dealings to be governed by the established system of law. In this country the parties’ expectations can only be fulfilled by applying the system of stare decisis which is deeply-rooted in our legal system. To refuse to follow precedents will not only disappoint the parties but will introduce an element of uncertainty into the body of our law.

Generally speaking it is the practice of the courts of the Sudan to identify the principles of English law with justice, equity and good con science. In this way the reception of English law has been accomplished. Even English statutes were sometimes received on the pretext that it is not the statute but the principle underlying it that is being applied. Cases of departure were few and far between. In the case of Heirs of Hussein Abdalla V. Mohamed Mohamed El Amin (1961) S.L.J.R. 113 the Court of Appeal applied the common law rule relating to insanity. Hence the learned Province Judge was bound to apply that precedent in the case before him even if he does not approve of it.

In the matter of reception of rules from other legal systems the Court of Appeal in the case of Heirs of Abdalla Hassan v. Hag Abdalla Mohamed Hag Ahmed (1969) S.L.J.R. 7 AC-REV-536-1966 expressed its view towards the mode and the principles governing reception in the following terms:

"I come to the second point of receiving the Mohammedan Law in aid of interpretation of the Ordinance, this may be done and it is advisable where the main principles and concepts of the Ordinance were derived or borrowed from that law; provided that those principles or concepts as introduced in the Ordinance have not been modified by other legal principles, or developed into other lines of legal thought''.

In the above case from which the quotation was taken the Court of Appeal declined to receive Sharia law in aid of interpretation of the Pre emption Ordinance on the ground that the system of registration applicable in this country was not known to Islamic law and as such constituted a necessary modification. In adopting such an attitude towards reception the Court of Appeal had in mind the necessity of the organic growth of the law. Eclecticism may be beneficial when preparing a comprehensive code. However, it is not always so when it is manipulated to upset the rules of an already established system. The criticism levied against the common law rule is rather overstated. The requirement of knowledge of insanity seems rather practical and business-like. The Egyptian and Syrian Civil laws which have drawn a great deal from Islamic law require the necessity of knowledge of Idiocy if no interdiction proceedings were taken and no guardian appointed:

see section 114 (2) of the United Arab Republic Civil Law and El Waseet by El Sanhouri, 2nd ed., p. 299.

Again the term idiocy denotes a case of a severe mental derangement. An idiot is a person of arrested mental growth. He behaves in all the circumstances like a child: see Civil Capacity in Islamic and Lebanese Laws by Anwar El Khateeb. The expert evidence adduced does not show that the condition of respondent answers that description. Respondent’s ailment was diagnosed as depression without cause. It manifests itself in suicidal tendencies, absent-mindedness, and indifference to the consequences of one’s acts. Such symptoms could not be identified in any way with the behavior of a child.

I hold, therefore, that the learned Province Judge erred in refusing to follow precedent and even in classifying respondent as an idiot. Hence his decree must be set aside. I am on all fours with the finding of the trial court that respondent failed to substantiate his plea that he was of unsound mind at the time of the transaction.

Now the only point which remains for determination is whether it is equitable in the circumstances of the present case to grant specific performance. Such a remedy is discretionary and the practice of our courts is not to grant it where damages would afford an adequate remedy. The rule was explained in clear terms in the case of Mubarak Ahmed El Darouti V. Bashir El Sheikh Ahmed (1957) S.L.J.R. 1—2:

“Furthermore, the remedy of specific performance is entirely in the discretion of the court and the court ought to refuse it if it would inflict great hardship on the defendant or any other person, or if the conduct of the plaintiff has been, in the words of Snell, ‘tricky or unfair.’ Anyhow the court cannot arrive at a conclusion on these matters unless it carefully explores everything in the transaction. A claim for specific performance therefore requires a patient hearing."

Again the Court of Appeal in the more recent decision of Fawaz Yassa v. Galal Mohamed Ahmed Ghafour (1960) S.L.J.R. 47 expressed similar views. The above views reflect the attitude of the courts towards such remedy where the deal is crooked or there was undue advantage.

In the present case, and according to the testimony of the psychiatrist, respondent is suffering from a mental disorder which renders him quite indifferent to the consequences of his behavior. Applicant, being the Sheikh of El Gism in which respondent resides, must have known of his condition. This is evidenced by the fact that he was quite secretive about the sale. He concealed it from the wife of respondent. (See the evidence of the wife and D.W.4 and D.W.5) Such secretiveness tells of a guilty conscience. Furthermore applicant did not expend any money on the house. In fact he did not take possession at all. He only paid £S.30.000m/ms. out of the purchase price amounting to £S.500.000m/ms.

Having all these factors in mind I do not think it will be fair to decree specific performance in the circumstances. Applicant should be left to seek his remedy in damages which is adequate. As the courts of this country are courts of equity as well as of law they can award damages in lieu of specific performance. It is therefore my opinion that the case be returned to the trial court to decide the quantum of damages.

Ramadin All Mohamed J. January 2 1970:—I agree.

The Civil Justice Ordinance, s. empowers a court to act according to justice, equity and good conscience “in cases not provided for by the Civil Justice Ordinance or any other enactment for the time being in force.” This section must be read subject to the general rule of stare decisis, i.e. the binding effect of precedents. The expression “or any other enactment for the time being in force” appearing in section 9 must be taken to include any existing law to be applied by the court. Any binding precedent is such a law for the time being in force