Case No.:

AC-REV-194-1959

Court:

Court of Appeal

Issue No.:

1961

 

Principles

·  Partnership—Definition

·  Partnership—The evidence by .which a partnership may be proved

·  Partnership—Proof of—Admission of a party not necessarily conclusive

·  Civil Procedure—Civil Justice Ordinance, Order XI, r. 21—Admissibility of new evidence at the Court of Appeal

To prove the existence of a partnership, one must prove a contractual partner ship agreement to share profits. All evidence of written or verbal agreements between the parties, surrounding circumstances such as Right of control, accounts, right to receive profits or liability for loss are relevant to the determination of the intention of the parties. Admission of partnership is not necessarily conclusive.
To prove the existence of a partnership, one must prove a contractual partner ship agreement to share profits. All evidence of written or verbal agreements between the parties, surrounding circumstances such as Right of control, accounts, right to receive profits or liability for loss are relevant to the determination of the intention of the parties. Admission of partnership is not necessarily conclusive.
To prove the existence of a partnership, one must prove a contractual partner ship agreement to share profits. All evidence of written or verbal agreements between the parties, surrounding circumstances such as Right of control, accounts, right to receive profits or liability for loss are relevant to the determination of the intention of the parties. Admission of partnership is not necessarily conclusive.
Civil Justice Ordinance, Order XI, r. 21, allowing the Court of Appeal to exercise its discretion to admit fresh evidence when needed to enable it to reach judgment is broader than its English counterpart in Shedden v. Patrick (1869) L.R. Sc.Div. 470.

Judgment

(COURT OF APPEAL)*

NAEIMA ISMAIL v. HEIRS OF MAHMOUD  MOHAMED GABIL

AC-REV-194-1959

 

Advocates: Ali Mohamed Ibrahim .. for the plaintiffs-respondent

                      Hussein O. Wanni …….. for the defendants-applicant

A M. Imam 19. July 9 1960 :—This is an application for revision submitted on behalf of Naeima Ismail, applicant (and defendant), childless

Court: M. A. Abu Rannat C.!. and A. M. Imam J.

widow of late Gabil Mohamed Gabil, contractor and landed property Owner of Omdurman, against judgment and decree of the District Judge (High Court), Khartoum, passed in CS-265-1957 on October 15, 1959. and that of the Province Judge, dated August 29, 1959. in which a declaration was made to the effect that the heirs of Mahmoud Mohamed Gabil, full brother of the said late Gabil Mohamed Gabil, respondents (and plaintiffs). are entitled by way of partnership rights, to one-third in certain properties. partly still registered in the name of the said Gabil, and partly once origin ally registered in his name.

The bare facts of this case are in brief as follows: Mohamed Gabil. contractor of wide repute in the early thirties, was engaged in building contracts with the then Public Works Department. He died in 1931 his only sans and heirs: Mahmoud, Hassan and Gabil and (heir mother Zeinab B. Mohamed El Sifti. Mahmoud died in 1947, leaving his children. respondents (and plaintiffs). Hassan died in 1952. His brothel Gabil was his sole heir. Gabil, the original defendant in these proceedings died after the institution of the suit, his wife, Naeima taking his place; respondents (and plaintiffs) being his remaining heirs

This case was raised by respondents (and plaintiffs) for a declaration that a partnership subsisted between the three brothers on or shortly after the death of their father, that on the death of the said father considerable amounts of money and contracts were outstanding in his name with the Public Works Department. that through a power of attorney duly executed by his two brothers Gabil carried on the partnership business and did so under the father’s business name. They contended that as a result of his successful business, Gabil appropriated the profits thereon in landed property of immense value, that he subsequently and without the consent of his two brothers, disposed of this property by way of Wakf and gift in his wife, Naeima.

Applicant (and defendant) Naeima denied the existence of any such partnership and maintained that the properties concerned were bought by Gabil out of his own money and that he was sole proprietor of the business of building contracts.

Clear arid detailed issues were framed by the court of first instance (p. 46 of the record). The case was heard and ultimately determined in favour of respondents (and plaintiffs(.

Before delving into and threading out the merits of this case, let us deal with certain objections raised on behalf of respondents (and plaintiffs) concerning the admission of fresh evidence, in nature documentary. before this court.

So it was contended by the learned advocate for respondents (and plaintiffs) that the applicant (and defendant) has no right to produce new

evidence. But though he admits that by Order Xl. r. 21, the court has a discretion to admit such evidence, he points out that this discretion is sparingly used both here and in England. lie calls to his aid the statement of lord Evershed MR. in .orbett V. Corbett {1953] 2 W.L.R. 1124. 1126, containing the underlying principles for the rile

"It is not in doubt that in general the rule of this court, laid down long ago in Shedden v. Partrick and since followed in many cases, is briefly this, that it being in the public interest that there should be an end of litigation, fresh evidence on appeal will not be permitted unless two conditions arc satisfied.

The first is that the new evidence was not available to the party seeking to use it at the trial, or that reasonable diligence would not have made it available. The second condition is that the fresh evidence, if true, would have had, or would have been likely to have had, a determining  influence upon the decision in the court below.”

The underlying rationale given by Lord chelmsford in the old case of Shedden v. Patrick (1869) L.R. 1 Sc.Div. 470. above referred to, is that o permit this might encourage parties to endeavour to obtain the deter mination of their cases upon the least amount of evidence, reserving the right, if they failed, to have the case retried upon additional evidence which was all the time within their power.

Civil Justice Ordinance, Order Xl, r 21, reads:

‘The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary. in the Court of Appeal. But if::

(a) ……

or

(b) The Court of Appeal requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Court of Appeal may allow such evidence or document to be produced, or witness to be examined.”

It can clearly be seen that the above-mentioned rule is not defined by any rigidity as in Shedden v. Patrick; it is therefore discretionary. For this court to exercise its discretion in order to admit fresh evidence, the requirement is that such evidence is needed to enable it to reach judgment, e.g., where the evidence before it is lacking and there is no good reason for sending th whole case back for retrial, or for any other substantial cause. It is again clear, therefore, that this rule is naturally wider than its English equivalent. However the rule in Shedden v. Patrick can be used to guide but not to govern this discretion. Accordingly. and exercising our discretion

as outlined by CviI Justice Ordinance, Order Xl, r. 2!, we decide to admit the various documents produced on behalf of applicant (and defendant) only in respect the subdivision, and we also think that this admission tau1e as will be explained hereinbelowو with the aforementioned decision in Cothett v. Corbett.

Now to deal with the application itself, it will be appropriate, before any considersd of the facts, to look into the law governing the constitution or formation of partnerships, to find what elements are. necessary for its creation, and ‘the evidence required iii proof of its existence. Later we will deal with the evidence both beard in the court of first instance, and admitted by this court with -a view to ascertaining whether, in this particular case, a partnership did exist as alleged.

Partnership Registration Ordinance1933, s.3 , defines partnership as:

“the association of two or more persons for the purpose of carrying on business together, and dividing its profits between them.”

And a partner iS defined as any one of the persons so assodated.”

By the Partnership Act, 1890. “partnership” has been defined as:

“the relationship which subsists between persons carrying on a business in common with a view to profits.”

The essence of a partnership, therefore, is the sharing of profits as the word to “part” in a sense means to divide amongst, or share—see Lindley. Partnership 11 (11th ed 1950) . Pollock defines partnership as “the relationship which subsists between persons who have agreed to share the profits of a business carried on by all or any of them on behalf of all of them.” Pollock, Partnership 6 (15th  ed., 1952); Lindley, Partnership 13(11th  ed., 1950).

As can be seen the element necessary to constitute a partnership is agreement; it is a relation resulting from contract. Pollock, Partnership5 (15th ed 1952)

“The statutory definition does not state from what the relationship arises, but that an agreement, express or implied, as the source of the relation was clearly established before the Act and may be inferred from its provisions.” Lindley, Partnership 12 (11th  ed. 1950).

As regards the evidence necessary to prove that a partnership exists we can best refer to the quotation cited by the learned advocate for applicant (and defendant) from, Desai, Law of Partnership (India and Pakistan) 34 (2nd ed., 1956  5).

“The court will examine all the incidents of the relation between the parties as shown by the written agreement, verbal agree together with surrounding circumstances at the time the contract was entered into, conduct of the parties, as well as other facts that may

be relevant such for instance, as the right to control the property, the manner in which accounts of the business’ are kept. the right to receive profits and the liability to share the losses—and from these to deduce the real intention of the parties. Existence of any written or verbal agreement between the parties, conduct of the parties towards one another, the mode in which each has with knowledge of the other dealt with other people, are indicia which may help the court in finding whether partnership does or does not exist, The Court must consider all the facts and circumstances of the case and draw an inference from them as a whole without attributing undue weight to any one of them" .

See generally, Lindley. Partnership 107— 118 (11th ed.. l950 ).

This view has been adopted, to the letter, by the Court of Appeal in Ahmed Dafalla v. El Sayed .4bdalla Ibrahim ( S.l..J.R. 78.

From the above it can therefore be seen that the question whether partnership does or does not subsist is a mixed question of law and fact:

"If it comes before a jury the question must be decided by them; they taking their own view of the effect of the evidence before then are bound to apply to the facts established to their satisfaction those legal principles which the court may lay down for their guidance Lindley. Partnership 110 (11th ed.. 1950 ).

In this connection two distinct questions present themselves:

1. What is to be proved  ?

.2How is it to be proved  ?

The first question pertains to the realm of the legal definition above alluded to; and the second question pertains to the province of the law of evidence which enables the court sifting all relevant matter and circum stances surrounding the formation of a partnership the incidents 01 which can best be found in Desai’s former statement,

Having thus portrayed the law, let us now look into the reasons which lead the two courts below, that a partnership did exist. First, the court of first instance. After giving a history of the contestants we find the following statements under the respective paragraphs of the judgment of the learned District Judge:

"(5)It is not disputed that in x when Mohamed Gabil died his three sons entered into an agreement to continue the contract work with the Public Works Department which was held by their father, and in furtherance of this aim Mahrnoud and Hassan made a power of attorney by lshhad No.311/31  Omdurman Sharia Court (Exh. 1) in which they authorised Gabil Mohamed Gabil to act on their behalf, to supervise their property. to sell. mortgage. rent and register on

their behalf and to receive any money for them. This tawkil is a conclusive evidence that all the acts done by Gabil since 1931 are acts done on behalf of his two brothers. So any property registered in his name should be deemed the property of the three brothers unless the contrary is proved.

 (6)"On the other hand. it is proved by evidence that the con tracting business since 1931, at the death of the father, until 1957 the death of the son, was carried out in the name of Mohamed Gabil as a business name with the Public Works department. The registration of the business name dated December 19. 1931 (Exh. 6). the evidence of P.W. 3, Tawfic Loga, an employee with the Public works Department since 192ç. shows that the name of Mohamed Gahil was the con tracting party with them until 1943; then Mahmoud Gabil was substituted on behalf of the family, and Gabil s always appearing on behalf of the family The list submitted by the Director of Works on p. 97 of the record shows considerable amounts of m drawn in the name of Mohamed Gabil since 1931 till 1940. which amounts are more than enough to be the value of the property claimed.

"(7) The rights of the plaintiffs generally, though not specially were admitted by deceased Gabil Mohamed Gabil by his letter, dated October 24, 1955 addressed to Mustafa Mahmoud Gabil (EXh. 2), in which he s that all the wealth will come to you because it s invested from the money of our ,father Mohamed Gahil. and I and m brother Has and your father are building it in equal shares and we were in full agreement This document is a conclusive evidence in sup port of the claim. Its genuineness was never disputed by the defendant’s advocate, and P.W. 1, Yousif Salama. gave evidence of the fact that it carried the genuine signature of the deceased Gabil.

(8) "From the above and the oral evidence it appears that the three brothers were living and trading together. and that the wealth was made by them jointly, and that the brother in whose name the property was registered had clearly admitted the partnership by an unrebutted document, and that the property was held by Gabil as a trustee for his brothers, and as two of the brothers have o offspring the property was not subject to distribution as in normal state of affairs the property will legally revert to the plaintiffs by way of inheritance.”

 We make this passing remark that the opening words in paragraph  (5) over, that it was not disputed that the three sons of Gabil entered into agreement after his death in 1931. is a flatly incorrect statement; for is was the very fact that was denied by applicant (and defendant  ). 

perhaps the District Judge meant to say that it was a proved fact; for he

went on to enumerate the reasons which made him reach a decision that there was such an agreement. these were

(a) The power of attorney ( Exh. 1 which Hassan and Mahmoud executed), the averment being that they did so to enable Gab to carry on their father’s business with the Public works Department.

(b) That Gabil did carry on this business under his father’s name a did receive considerable amounts of money, the averment being that this was done in his capacity as partner and not sole proprietor.

(c) The admission contained in Exh. 2, Gabil’s letter to Mahmoud.

(d) Oral evidence that the family lived in tranquillity.

The reasons upon Which the learned Province Judge based his decision were mainly the above four reasons together with another, to which attention was not drawn, and which was not dealt with by the court below. That ‘ as in the words of the learned Province Judge as follows:

"In 1947 Gabil started to divide and register some of the lands that were sold and registered in his name, between himself and his two brothers Hassan and Mahmoud. It was said that Gabil started to do o before the death of Mahmoud, and because of the death of the latter Gabil stopped dividing any more. This is not true, by reason of the fact that the plots divided shown above, were not registered in the name of Mahmoud, but registered in the name of his children (plain tiffs). It appears that after the death of Mahmoud, Gabil stated and did divide some of the plots, apparently in equal shares between himself, Hassan and the children of deceased Mahmoud. The latter died in 1947 and the division was also in the same year.”

So what the Province Court found to be true was that Gabil did divide some of his property. and that this was done after and not before the death of Mahmoud, and that which it found untrue was the allegation that the said Mahmoud’s death s the cause which made Gabil stop the division; for the court could not find any reason why he stopped dividing his property.

The court made the following assertion of fact : “the latter (Mahmoud) died in ‘917 and the sub-division was also in the same year.”

Before dealing with these points one by one, it is appropriate here to make again a passing remark, having in mind Desai’s above-mentioned illustrative passage that the District Judge was wrong in treating each any single point as conclusive evidence of the existence of the alleged partnership; for such a decision ultimately rests with the considering and weighing of all relevent matter and circumstances of the case as one whole

In this connection we prefer to deal with this last point first, the sub division. And it is here that we should stop for a while to give our reasons

why we thought fit to admit the fresh doç produced in respect of this point in particular, and why we think that this view also fits in within the four corners of the rule in Corbetc v. Corbett.

The rule requires:

(a) (I) that the new evidence was not available to the party seeking it at all, or

(ii) that reasonable diligence would not have made it available; and

(b) that the fresh evidence, if true, would have had, or would have been likely to have had a determining influence upon the decision of the court below.

The evidence sought to be admitted mainly was in respect of alleged disposition by Gabil of land contained in formal plot nles. In a sense these plot files were not available to applicant (and defendant) The Province Court reached its decision about the subdivision from certified copy land registry certificates, which made it appear that such subdivision in three equal shares was made between Gabil. Hassan and Mahmoud’s children, and that that took place 1947 according to the remarks entered in hand writing in those certificates. Nothing in these certificates showed how these shares devolved to the said children, The court depended solely in this respect on the statement of ! one of the children, and now the leading contesting respondent and( plaintiff). The court, not doubting Mustafa’s statement arid seeing that it was corroborated by what was on the face of the Land Registry Certificate did not look into the plot files to verify. Had it done so the garlnig falsity of the statement would have come to light we take ‘ .availabiIity to mean either that the information in question was in the possession of the pat-tv himself, or that he knew or had reason to believe that it existed somewhere. Failing that. the information or evidence is not available at all in so far as that party is concerned. This interpretation may include the condition under (a) (ii) above: at the time Mustafa gave his evidence Gabil was already dead. Naeima . his widow, was then made defendant by subrogation. we ran rest assured that it was only in Gabil’s power to refute his nephew’s unfounded statements, and that Naeima. being an ordinary Sudanese house wife, was quite naturally not in a position to know of her husband’s dispositions in his own property . Accordingly . it cannot be said that she knew or had reason to know of the position at the tin Mustafa gave his evidence. If this is a correct view the question whether she could by the use of reasonable diligence have availed herself of the true state of affairs drops .

As for the requirement under (b) above we venture to say that had the true facts about the alleged subdivision been revealed to the learned

Province Judge, it definitely would have had a determining influence upon his decision, and that, as will readily be shown hereinbelow, notwith standing his describing the letter, Exh. 2, as a “landmark;’ and the sub division as merely a fact in support of the existence of a partnership .

The relevant plot files were closely examined. The result was as follows:

 . 1Shop No. 87, BK.3 Omdurman Town, comprising 35.8 square metres. Originally was the property of Mohamed Gabil., the father and not Gabil the son. It devolved to Mabmoud, Hassan and Gabil by way of inheritance in i equally and 1n undivided shares. It is still so registered. The year 1947 refers to simplification of the register. There was no subdivision as alleged.

 . 2Shop No. 88, B.K.3  Omdurman Town, comprising 38.4 square metres. The same as in (1) above.

. 3Plot No. 2-5-184 Omdurman Town. comprising 1267 square metres. The same as in (1) and (2) above except that Mahmoud disposed of his share by way of sale to his sons in 1942. The register was simplified in 1947. There was no subdivision as alleged.

. 4Plot No. 2-5-185, Omdurman Town, comprising 480 square metres. This plot was acquired by way of sale by Hassan and Gabil from a certain El Tayeb El Hag Hamid in 1923 equally and in undivided shares.

Simplification of the register was also done in 1947.

Mahmoud’s name does not appear at all Naturally no sub division.

. 5Plot No. 2-5-537. Omdurman Town, comprising 105 square metres . This plot was originally part of Mohamed Gabil’s estate and each of the three brothers had an equal undivided share therein. In 1942 Mahmoud sold his share 10 hi daughter, Sakina.

Simplification  was made in 1947 . and  there was no subdivision as alleged.

6.  Plot No. 2-5-557, Omdurman Town. comprising 186 square metres. As in (5) above, except that Mahmoud sold his share to his daughters Sonab and Zeinab.

 . 7Plot No. 2.5-560, Omdurman Town, comprising 569 square metres. This plot originally’ belonged to Zeinab Mohamed El Sifti. and was divided by Fetwa No. 100-34. Omdurman Sharia Court, between the three brothers equally. In 1942 Mahmoud sold his share to his children .Sakina, Sonad. Rashad, Mustafa and Ibrahjm. There was no subdivision.

 . 8Plot No. .4 - -1 220, Omdurman Town. comprising 212 square metres. The plot file of this plot was not produced at the inspection by the

Assistant Registrar of Lands. The learned advocate for applicant (and defendant) did not insist on its production.

Simplification of the register simply means the amalgamation of various shares belonging to a single shareholder in one plot and compiling them in one single share. This was done in 1947. As a result of this, the shares of Gahil, Hassan and those of Mahmoud, still remaining in his name, or transferred to one or other or others of his children, were equal. A Land Registration Certificate only gives the shares without disclosing their history or devolution. This was what was done in respect of the above-mentioned eight plots. The Assistant Registrar of Lands, Hussein Eff. Hassan, who produced the plot files for inspection, said on inquiry that these certificates bore his signature. He gave an assertion, based on fair confidence, that at least the entries in Arabic handwriting in these certificates were made after he had signed the said documents. These entries read: “ Registered on December i8, 1947.” It did not explain that this “ registering” was made as a result of simplification. This leads to the feeling that it was done deliberately by the Registry Clerk, whose handwriting was identified by Hussein Eff., in order to pave the way for Mustafa to give his false evidence, and consequently to mislead the court, as it actually did, into the belief that Gabil started to divide his lands as alleged. Were not this so, why then does Mustafa choose the year 1947 ?

In his evidence given on oath Mustafa said (see p. 55 of the record).

 “In ‘947 the three brothers started to think of distributing the estate between them equally but owing to the death of my father in the same year the distribution of the estate stopped. After the death of my father , my uncles. Gabil  and  Hassan. called on me and informed me that as they both have no children, the whole estate will come to me and my brothers, and they suggested that the estate should be left as it is and they promised to give me and my brothers their need; and in fact Cabil started to transfer part of the property to  give me and my brothers, as shown in the registration certificates.”

It can he seen clearly that this statement is as utterly false as it is inconsistent and confused. While this witness states that the three brothers started to think of distributing the estate.” he adds that the distribution stopped owing to the death of his father. Did the three brothers actually agree? was it the distribution of the estate that was abandoned or the mere idea of putting it into effect?

Again, while he asserts that his uncles agreed to give him his need, that the estate he left as it is, he makes the inconsistent, bold and untrue statement that Gabil started to transfer part of his property to him and his brothers after his fathers death.

One can sense that this inconsistency could have been intentionally made; for had Mustafa clearly stated that the alleged division definitely took place after the death of his father the court’s attention would have been drawn to Plots Nos.1 and 2 in the list above, in both of which Mahmoud still has his share registered in his name, a thing which would have necessitated a proper inquiry into the plot files, and then the whole fiasco would have come to light.

Perhaps the only truth in this connection is that the three brothers might have negotiated a settlement but that their efforts did not bear any fruits. The statement of Mustafa Salama, P.W. 2, may throw light in this respect. He says at p. 69 of the Record:

“In 1947 Mahmoud Gabil died and there were negotiations for settlement of the question of the estate of Mohamed Gabil by dividing the property registered in the name of Gabil into three equal parts between the three brothers, but suddenly Mahmoud got ill and died.”

The finding of fact which the learned Province Judge reached in respect of this allegation of the subdivision of the eight plots in question was:

“As to the following plots it appears that they were acquired by late Gabil Mohamed Gabil by sale after 1931 and they were registered in his name.

“In 1947 these plots were divided and registered between the late Gabil himself, Hassan Mohamed Gabil and the plaintiffs in this case. This is clear from the deeds of sales (attached to these proceedings) and from the land registration certificates.” (Judgment, p. 2 ).

It can now be seen that all these facts are wrong as was shown by tracing the history of each of these plots. There can be no doubt now that had the learned Province Judge been aware of the true state of affairs this would have definitely weighed and would have had a determining influence in his judgment. Because this question of the subdivision was perhaps the sole overt act which would have been done by the three brothers indicative of a partnership capacity, and because this question was repeatedly mentioned throughout his judgment, we are pretty sure that it would have influenced his inference that a partnership existed between them notwithstanding his light description of it as “ a fact in support of the existence of the partnership.”

We move next to consider point (C) above dealing with Exh. 2, Gabil’s letter, allegedly containing an admission of the partnership, and which the District Judge found as a most valuable piece of evidence in this direction. We think that after the discovery of the correct facts relating to the supposed subdivision, which discovery had reduced Mustafa’s credibility to a tatter and pointed to him as an outright  perjurer. the letter ceases to have

any evidential value. Though the purported signature resembles that of Gabil in other title deeds, yet it is admitted to have been written by Yousif Mustafa Salama, P.W. 1, who is a biased witness for the many reasons enumerated in this application, and it was produced out of Mustafa’s custody.

Again the circumstances in which this letter is alleged to have been written do not at all lead to the inference that it was written with the clear intention to admit a partnership; for it is Mustafa’s contention that it was written “after vigorous disputes” arose between him and Gabil. (Judgment. p. 56).

Even if the authenticity of this letter were to be admitted, yet we still think that it cannot be taken as clear or “conclusive” evidence, as the District Judge preferred to put it, of the matter required to be proved, i.e the existence of a partnership. Such an admission is to be closely examined and be given the weight to which it is due.

“An admission made by any one that he is a member of a particular partnership is evidence of that fact against him; and such an admission renders it unnecessary for the purpose of fixing him with the liabilities of a partner to show that he executed any document whereby he became a partner.” Lindley, Partnership 114 ,. (11th ed.) 1950). ).

“Admission  however, are not necessarily conclusive, and little weight ought to be attached to them if it is shown that they were made under erroneous suppositions.” Lindley, Partnership 115 (11th ed., 1950   ).

in Vice v. Anson, 7 B. & C. 409, a defendant who erroneously thought herself to be a shareholder in a mine, and who admitted this in private letters to the plaintiff, was held not be liable to him simply on her mistaken suppositions. This view is supported by Ridgway v. Philip, i Cr.M. & R. 415 cited by the learned advocate for applicant (and defendant). The rule is so clear as to include a person who describes himself as a partner:

“Even where a person has executed a deed describing himself as a partner, the admission is not necessaril9 conclusive, although it is very strong against him.” Lindley, Partnership 115—116 (11th ed., I950   ).

This letter, dated October 24, 1955, a few years before Gabil’s death, reads:

"I received your letter. I do not know why you are annoyed. You know that all this wealth will be yours, because it is from the moneys of our father, Mohamed Gabil. Myself and my two brothers, the late your father and the late Hassan, were equally developing these properties. from the estate of our father. Since the death of our late father, we had never differed with each other. We lived together

Happy brother. And  at the end it will be all to you .  Be assured my Son, and do not be annoyed.”

As can be seer the letter does not contain any express reference to a partnerthip or any admission that these brothers were partners. The only clear reference is made to the fact that the wealth originated from the common father’s moneys. What were these moneys the letter does not say. We will, however, deal with this question when we move to consider the remaining points. The letter also contains an admission that Gabil’s two brothers joined in developing this property. There is no single independent piece of evidence that they did so. The only right that was admitted was Mustafa’s right to inherit Gabil’s estate after the latter's death.

Now we move to consider the point under (b) above: the allegation that Gabil, by agreement with his other brothers took over the management of the building contracts and consequently received considerable amounts of money. This brings forth the question of the Tawki Exh. i, mentioned under point (a) above referred to. We will deal with this last point first

In his evidence Mustafa said (P: 53 ):

" It was agreed between the three brothers that Gabil should be appointed as a Wakil to take over the business of his father with the Public Works and made the Tawfik 311-1931, Exh. 1, which authorises him to manage (or) their immovable property and gave him the right to sell

This power of attorney may have some effect if at the time it was executed or shortly before, there was any prima fade evidence of a partner ship between the brothers or that they were, with their father, trading under some sort of a firm. This was exactly what was mentioned in the plaint that set the court of first instance into motion (HC-Pets-655-57 ) Paragraph 2 of this plaint reads:

" During his lifetime and until his death the late Mohamed Gabil and his heirs . . . were forming a partnership for undertaking contract work.”

Paragraph (3) reads:

“After the death of their legator it was agreed between the heirs that the partnership would continue as before, and that the profits would be divided in three equal shares between the heirs.”

Paragraph (4) reads:

" In accordance with this agreement the defendant as an agent of the heirs of deceased continued to manage the said partnership.”

It is clear from the record that the contention under paragraph (2) was not substantiated. The learned District Judge found as follows:

The common father of the parties was a well-known building contractor. Nothing is known as to the business relationship between him and his sons.( judgment, p. 3 ).

From the above it can be clearly seen that there was no background with which Exh. 1 can possibly be connected. There was no partnership property. but there was an estate. This estate itself, contrary to the findings both courts below, was divided between the heirs, the mother and her three sons. Fetwa 233 - 1931. The mother’s share was also divided and registered between them. Fetwa 100-1934 True there were outstanding sums of money with the Public Works Department which ought to have formed part of Mohamed Gabil’s estate. But Exh. 1 contains no specific reference to those sums nor to any partnership in connection therewith. The allegation that the three brothers agreed to furnish Gabil with this Tawkil for the sole purpose of managing, on their behalf, the contract business, as partners is not founded and is not supported by any evidence at all, Perhaps the initiating cause for the issue of this Tawkil was because the Public Works Department chose to contract with no other bu Mohamed Gabil, as can be understood from the statement of Tawfig Lo P.W. 3 (Record, p. 75), until at last in 1943 the name of Mahmoud was entered instead as contracting party. This view is upheld by D. W. , El Tayeb El Hassan, Gabil’s driver, who has been in this company since 1927. Perhaps this may explain why Gabil continued to carry on business under the registered name of his father. It is therefore clear that it is against the nature of things that Gabil should continue something which was non-existent at his father’s death, and there are no sufficient facts from which the inference could be drawn that a new firm or partnership was born at the time. There is no hint that Mahmoud, when taking over fl 1943 the contracting business was acting on behalf of his two brothers! The mere fact of Gabil trading under his father’s name does not prove much. They may be entitled as heirs to the value of the goodwill. They may also be entitled to the outstanding balance in the name of their legator. Mohamed Gabil, at the time of his death. According to Loga. P.W. . this amounted to a sum of £S3.227.419 :

"When Mohamed Gabil died in i he had an entitlement with the Public works Department amounting to £S.3.227.419 which was paid during 1932 to Gabil Mohamed Gabil by general Tawkil on behalf of the heirs” (Record. p. 76) . 

As for the other sums which Gabil cashed before abandoning the con tracting business, his two brothers can only be entitled to these as partners. and failing proof of this they would be entitled to nothing; for they would be strangers to the contract with no privity between them and the Public works Department. From the above it can be seen that one of the purposes

of the said Tawkil was to enable Gabil to receive sums that were due to the heirs. Can its field be enlarged as to be capable of the interpretation that it was given to enable Gabil to carry on business on behalf of his two brothers  ?

As for point (d) above, the general trend of the oral testimony goes to prove that they were i happy family that lived in love and tranquillity until this harmony was upset when Gabil started to dispose of his property by way of Wakf and gift.

Now that we have finished with the exposition of the five points which, prima facie, contain the reasons for the finding reached by the court, with a view to straightening out the meshy facts, and before moving to consider the whole case, let us have it in mind, as we have already mentioned under paragraph (b) above, that the question whether a partnership does or does not exist is a mixed question of law and fact. Any finding in this respect, therefore, is necessarily not a finding of fact; it is an inference based on the sound application of the law to the proved facts. The Court of Appeal, on this ground alone, may interfere with a view to testing the correctness of such an inference. This view tallies with the ratio decidendi in Hellenic Community v. Petit Bazaar (1956 ) S.L.J.R. 4.

We have already stated that, in this respect, two questions are to be kept distinct. To bring them near, they are:

(1) What is to be proved  ?

(2) How is to be proved  ?

We have dealt with (2) in our endeavour to clarify the evidence. As for (1) we.repeat that a partnership is:

“the association of two or more persons for the purpose of carrying on business together and dividing its profits between them.”

Were the contestants partners within the meaning of this definition  ?

We have seen that the question of the alleged 1947 subdivision was fabricated and false and must therefore collapse We have pointed out that this subdivision was, perhaps, the sole, overt, external act demonstrating the will and intention of the parties as partners We have expressed grave doubts as to the authenticity of the letter, Exh. 2, as it has been admittedly written by an interested and biased witness, and since it was produced from the custody of Mustafa, the wolf who was not content with the lion’s share, and whose evidence is probably an outright perjury. Even admitting that this letter was genuine, we have stressed the point that an admission should not be given an undue weight and that the person who made it is allowed to explain off any mistake or erroneous supposition. But, alas! the signatory has passed away into oblivion. Nevertheless we have mentioned the weak points in this admission in that it’ was silent and did not state the one

fundamental point of partnership, and the statement that the two brothers had contributed towards developing the property was not supported by any independent evidence. And from the circumstances under which the letter was alleged to have been written, an atmosphere tense with the “vigorous” dispute over the “-wakf” and the “gift,” we think that the spirit of the letter, if it were true, can hardly be interpreted as to show an intention on the part of Gabil to admit a partnership, and all that can be made of it is a promise on the part of Gabil, telling his nephew not to sulk and that everything would be healed by the scythe of time when all would revert to him being his sole and paramount heir, as if he said, “keep quiet and you will have all . . . but only when I am dead.”

We have also observed that the Tawkil, Exh. i, did not make any- particular reference to the contracting business, nor did it refer to a partnership concerning the same, and we have also observed that it might have been executed to facilitate for Gabil the collection of the moneys then due to his father’s estate. We have also referred to the trade name and pointed out that it might have been adopted, in the absence of any proof that a former firm between the fathers and the son did exist, to enable Gabil to carry on his contracting business with the Public Works Depart. ment.

Last and not least we have referred to the oral testimony, and we see that, in its generality, the family was a happy family sharing the same residence, the same food, with no separate expenditure, until the spark was set off by Gabil starting to dispose of part of his property. We now affirm that this alone cannot stand as evidence of “sharing profits,” which is the essence of such association as the one alleged.

To conclude, we refer to the plain statement of the learned advocate for applicant (and defendant) made at the opening of his bright address to us.

There was no deed of registration, no agreement in writing, no oral agreement, no correspondence concerning the partnership business, no accounts taken, no profits shared.

From all the above it is our considered opinion that a partnershin was not proved.

The investigation into this case disclosed that a sum of £S. was due to Mohamed Gabil from the Public Works Department at the time of his death in 193!. It was proved that this sum was cashed by Gabil vide his power of attorney on behalf of the heirs. Mahmoud’s heirs could have made a claim in respect of their legal share in this sum. But this would have been of no avail; for it would have been virtually impossible to identify this sum with any of the many pieces of land purchased by Gabil after his father’s death.

They could have also made another alternative claim on their own risk

and peril, considering the weight of evidence above referred to against Gabil’s being an agent, in respect of the sums received by him on the ground that he did so in a representative capacity as agent or trustee of his brothers. Again they would have met with the same difficulty and they would have had little chance to benefit from the principle of tracing trust property.

“Whether trust money has actually been invested in the purchase of land or not is often little difficult to determine. Where, however, the amount of the trust fund is nearly identical with the purchase price, there is a presumption that the fund has been so used, and also where the trustee’s means are clearly insufficient for the purchase, unaided by trust money (although the possibility of a purchase with a mixed fund should not be excluded). The mere fact that a trustee has trust money under his control, however, is not sufficient to stamp any purchase made by him with the trust.” Keeton, Trusts, 382 (7th ed., 1957).

Perhaps this last course might have been a more defined and clear-cut cause of action for respondents (and plaintiffs) to take, rather than plunging into the labyrinth of attempting to make a partnership Out of a loose, vague and a maze of family relationship. They did not pursue this course.

For the above reasons explained this appeal is allowed. Both the decree of the District Judge (High Court), Khartoum, dated October 15,1958 and that of the Province Judge dated August 29, 1959 are reversed and the claim is dismissed.

Respondents are to pay applicant’s costs both here and in the courts

below.

M. A. Abu Rannat C.J. July 9. 1960:— I concur.

(COURT OF APPEAL)*

AWAD MUSTAFA v. EL HAG SALIH SULEIMAN AND ANOTHER

)AC-REV-1-1960( 77

Landlord and Tenant—Rent Restriction Ordinance. s. 11 (a) )—Waiver by accepting late rent

By .acceptance of rent after it is due but before institution of an ejectment action under Rent Restriction Ordinance, s. 11 (a). a landlord waives his right to bring such ejectment action.

Advocate: Mirghani El Nasir  ... for the plaintiff-applicant

 * Court: M. A. Hassib  J.

M. A. Hassib 1. July 27, 1960:—This is an application for revision against the order of the judge of the High Court, Khartoum, in HC-Rev-181- 1960, challenging the order of eviction by the District Judge, Khartoum. dated April , 1960, given in favour of respondent, Awad Mustafa, in respect of his claim for possession of his house No. 45, Block 8 A.W., El Hula El Gadida.

The respondents are tenants of the applicant for rents payable monthly in arrear. Respondents El Hag Salih Suleiman and Rizgalla El Amin both failed to pay rents for October and November I9 in time, but paid before the institution of plaintiff’s (applicant’s) suit.

The District Judge decreed eviction but the learned judge of the High Court set aside the order of eviction on the ground that the respondents actually paid the rents lawfully due on December 4, I959 i.e., before the institution of plaintiff’s suit. He distinguished the present case from El Gineid Osman Rahma v. Osman El Shafie (1960) S.L.J.R. 106, for in the case cited the tender of payment was made after institution of the suit. He considered that the act of applicant was a waiver and the rents when the suit was raised were not lawfully due . Hence  this application.

On his application to this court the learned counsel contended that the acceptance of rents due at any time before institution of the suit does not amount to an act of waiver because it lacks consideration.

The learned counsel then relied on Rent Restriction Ordinance, s11 (2).

The law in the Rent Restriction Ordinance is similar to the English law and in interpreting Sudan law the English decision should be sought.

In Bird v. Hildage (1948) 1 KB. 91, an authority for such interpretation could be found. The principle laid down is as follows:

Rent is not “lawfully due” unless it can be recovered by process of law. If, therefore, rent has been tendered, albeit after due date , it is, provided that time was not made the essence of the contract, not “lawfully due” within the meaning of paragraph (a), e to Sudan Rent Restriction Ordinance, s.11 (a). In any event, if rent has been so tendered , the condition precedent to the proceedings under paragraph (a), namely. that the rent “has not been paid” not fulfilled.

In laying down this principle Cohen L.J. said:

“The result is, in our view, that, where tender of rent is made.. even after the due date, where time is not made the essence of the contract, such a tender prevents rent from being lawfully due from the tenant to the landlord within the meaning of the schedule. It would be a very serious construction of the schedule if the result were that, although a landlord could not succeed in an action to recover judgment for his rent, he could, nevertheless, require the court to

exercise its jurisdiction on the ground that rent was lawfully due to him and unpaid. Although tender can never amount to payment, where time is not made the essence of the contract, either expressly or impliedly, it can always be made after the due date, and the creditor ref uses at his peril. If the creditor does refuse it and subsequently brings proceedings to recover the debt, and a payment into court is made, he cannot recover judgment. Judgment will be given against him for the costs Bird v. Hildage (1948) 1 KB. 91 - 99—100.

That being the expression of the law , I see no merits in the application which I now dismiss summarily under Civil Justice Ordinance, s. 176 (I).