Case No.:

(AC.Revision-36-1960)

Court:

Court of Appeal

Issue No.:

1960

Principles

· Evidence—Admissibility of letter to substantiate plaintiti’s allegation that defence was vexatious—Whether letter is privileged as offer of compromise—Negotiations without prejudice—Question of fact Civil practice and procedure—Admission made under mistake of fact

In an action by plaintiff against defendant for the conversion of fourteen sacks of beans, the defence was that the beans were bailed jointly by plaintiff and a third party to defendant and that they were subsequently returned to the third party (joint hailor) on demand. Later this defence was withdrawn in favour of one that the beans were redelivered to the third party in accordance with the plaintiff’s instructions. Plaintiff applied for this defence to be struck out, on the ground that it was vexatious and he produced in support of this allegation a letter purporting to have been written by defendant’s advocate to plaintiff’s advocate in which an offer for compromise was made. This was treated as an admission of liability. The court struck out the defence and entered judgment for the plaintiff.
Held: (i) An admission, whether formal or otherwise, can be withdrawn if proved to have been made under a mistake of fact, and therefore the defendant’s advocate ought to have been given a chance to substantiate his allegation that the admission in the letter was made under a mistake of fact.
(ii) That it should have been considered whether the letter was a privileged document, i.e., whether it formed part of negotiations entered into bona fide for the purpose of ttlenient in which case it would be privileged notwith standing that it was not expressly marked “without prejudice “; such an intent could be gathered from the circumstances of the case.

Judgment

(COURT OF APPEAL)

NASIR AHMED NASIR V. ISMAIL MUSA

(AC.Revision-36-1960)

Revision

The facts of the case and the history of the proceedings are set out in the judgment of B. Awadalla J.

Advocates: Younis Nigm for applicant

Fawzi El Tom for respondent

June 9, 1960. B. Awadalla 1. : —This is an application against the summary dismissal by the Hon. The Judge of the High Court, Khartoum, of an application to him against the decree of the learned District Judge, Khartoum, in CS/2913/53 dated March 10, 1959. The claim is one for, recovery of a sum of £S.49, being damages for conversion of fourteen sacks of beans admitted to belong to respondent, the plaintiff in the action,

* Court: B. Awadalla, A. M. Imam JJ.

and alleged to have been delivered to applicant in 1954. The document governing the contract of bailment is said to be dated February 14, 1954.

The defence was that the sacks were delivered by plaintiff (and respon dent) and a certain Mirghani El Sayed as joint bailors, and that defendant (and applicant) rightly redelivered the sacks to Mirghani El Sayed on demand.

The following issues were framed:

(i) Did plaintiff alone deliver fourteen sacks to defendant to keep for

disposal? (Plaintiff)

(2) Did plaintiff and another, Mirghani El Sayed, deliver the beans to defendant without telling him whose beans they were?

(Defendant)

(3) If the answer to No. 1 is ‘ Yes,” did plaintiff dispose of the

goods wrongfully? (Plaintiff) (4) To what relief, if any, is the plaintiff entitled?

The second issu is obviously not at all justified by the pleadings. Hear ing was fixed for April 12, 1955, but plaintiff failed to appear. Defcndant advocate applied br dismissal of suit. Instead of complying with the imperative provisions of section 65 Civil Justice Ordinance, the learned District Judge made a “stand over” order for which he substituted an order calling upon both parties to “see him” the next day (November I3, 1955).

This was made after respondent (and plaintiff) and applicant’s (and defendant’s) agent later appeared before him. Next day, i.e., on November 13, 1955, plaintiff appeared, but defendant failed to appear and a default decree was issued. This decree was set-aside on application, and hearinp was fixed for February 9, 1956.

After several adjournments the case was fixed for March 28, 1956, but on that date plaintiff failed to appear and the case was dismissed under section 65, Civil 1usti Ordinance. This dismissal was set-aside on applica tion of plaintil and respondent) and case was fixed for hearing on May 14. 1956. On that datt iew advocates appeared on behalf of the parties and Advocate Nigm on behalf of dofen (a: a applicant) applied to file a proper statement of defence This application was aliowea by the cour’ because it was not objected to by plaintiff (and respondent). A new state ment of defenc was filed on May 28, 1956. Although it is not speciflcall) stated, it appears that the allegation of ‘joint bailment” was abandoned in favour of one that delivery was made to Mirghani El Sayed on instruc tions from plaintiff, and that Mirghani El 5ayed had sold the sacks for £S 42 which he had paid to plaintiff’s agent

Case was adjourned to February 21,1957,when it was taken before another District Judge who made an order for framing of issues. On that date a “mention “ order was made for March 21, 1957.Before that date, i.e., on February 24, 1957, the case came before the District Judge who was dealing with the case from the beginning and he referred it for hearing to another District fudge. On the date of hearing, i.e., March 21, 1957, the plaintiff’s advocate claimed that the new statement of defence was vexa tious and dilatory and applied for it to be struck out and without hearing the defendant’s advocate the learned District Jtidge made an additional issue as to “whether the defence was vexatious and dilatory” and adjourned the hearing to April 18, 1957. On that date plaintiff’s advocate produced a letter purporting to have been addressed by advocate Au Ibrahim to the advocate for respondent prior to institution of proceedings stating that Mirghani El Sayed was a cheat. Advocate Nigm on behalf of applicant (and defendant) replied that the said letter was written under a mistake of fact and directed the attention of the court to a criminal case, to the record of which he requested the court to refer. The learned District Judge made an order calling for the record of the criminal case and at the same time ordered reference of the case to another judge, apparently by reason of his judicial powers being reduced below that of District Judge Second Grade. The case then came successively before two District Judges, the latter of whom asked for a resumé of the whole record from the original District Judge who had been dealing with it. This resumé was duly made and the learned District Judge gave judgment that the case should be decided on the admission contained in Doc. D.1and so judgment was given in favour of respondent (and plaintiff). An application to the Hon. the Judge of the High Court was dismissed summarily.

It goes without saying that it would be insulting to the conception of justice to give this mass of confusion the name of judicial proceedings. Although issues were framed, there was no hearing whatsoever and the court came to an abrupt conclusion after shocking procrastination. I think it would afford no excuse to say that that case was being handled by the Registrar in his capacity as District Judge Second Grade.

I am not going to deal with various procedural flaws contained in the proceedings and I only want to confine myself to the episode of the letter on which were grounded both the judgment and the dismissal of the application for revision.

This letter was produced by the advocate for plaintiff in order to sub stantiate an application to have the defence struck out and the court accepted it as if it were a formal admission and gave judgment accord ingly. The learned advocate for defendant (and applicant) sought in vain to withdraw the admission on the ground that it was made under a mistake of fact, but he was not heard and no opportunity was given to him to ubstantiate his allegation. An admission, whether formal or otherwise, can be withdrawn if proved to have been made under a mistake of fact [cf. Hollis v. Burton [1892] 3 Ch 226). In my view defendant ought to have been given sufficient opportunity to prove this mistake if he could. Furthermore, the court must consider whether this letter, being an offer of compromise, is privileged from being made use of in judicial proceedings without the consent of defendant. The criterion is whether it forms part of negotiations bona fide entered into for the purpose of a settlement and the fact that it was not expressly marked “without prejudice” is immaterial if intent to attach that attribute to the letter could, having regard to all the circumstances of the case, be gathered. The question is always one of fact.

This application is therefore allowed and case referred back for a proper hearing. The court should first consider the question of admissibility of the letter referred to above as proof of its contents and if so whether applicant can establish such a mistake of fact as to make withdrawal of the admission alleged to be contained therein possible.

Costs of this application as well as of the application to His Honour the Province Judge shall be borne by respondent.

A. M. Imam 1. : —l concur.

(Application allowed)