SALEH SOBHI, Ap plicunt-Dejendant v. SALEH SASOUN, Resnondent-Plaintiff
Contract=Writing=-Whether contract of guarantee enforceable in the absence
01 writing
Guarantee-Writing-Whether writing essential
Reception-English Statutes=-Statute of Frauds-Lord Campbell's Act-Road
Traffic Act=Comparison of statutes affecting rights with statutes of can-
venience
A guarantee may be enforced in Sudan although not evidenced in
writing. The Sudan courts look for guidance to English statutes enacted to
bring the common law up to date if such statutes afford justice, equity and
good conscience. The Statute of Frauds does Dot of necessity do so and it
is inapplicable in the Sudan.
English Statute of Frauds, s. 4.
English Lord Campbell's Act.
English Road Traffic Act.
Civil Justice Ordinance 1929. s. 9.
Revision
Advocate: Mr. Nagim ... for applicant.
June 3, 1936. Gorman C.J.: In this case two points were re-
ferred to the Court of Appeal for argument. Other points raised were
points of fact, and the judgement of the judge below will not be dis-
turbcd and the application 'for revision in respect of them has been
dismissed summarily.
The first point involves the verbal guarantee. The argument
was directed to whether the provisions of the English statutes should
be enforceable in the Sudan.
The courts of the Sudan have by virtue of section 9 of the Civil
Justice Ordinance 1929 looked from time to time to the common law
for guidance .. and on certain matters have looked at the statutes which
have been enacted from time to time to bring the common law up to
¥ Conn: Gorman C.J. and Bennett AG.
date. The courts have applied certain statutes, for example they have
applied Lord Campbell's Act. but in my view w should not apply
the Statute of Frauds. I think the test should be whether the statute
affords equity, justice and good conscience. Some statutes affect rights,
legal rights, and these are usually based on the demands of justice,
e.g., Lord Campbell's Act is such a statute, and was properly applied.
But other statutes merely announce a rule of convenience, e.g., the
Road Traffic Act, directing people to drive on the left of the road, is
enunciating a mere rule of convenience, and no one would say it ought
to be applied to the Sudan, if we have no similar rule ourselves, as a
matter of equity, justice and good conscience. It cannot be said that
section 4 of the Statute of Frauds is a mere rule of convenience, but
it is closer to such than to the other type of statute. If there were evi-
dence of a custom in the Sudan to put guarantees into writing, the
existence of the Statute of Frauds would reinforce us in applying such
a custom, but there is no such evidence.
For these reasons there is, in my view, no necessity, pending
definite legislation by CQ,l.tncil, that guarantees should be in writing,
and the argument of the counsel for the appellant on this point fails.
(The second point was inadequately argued and summarily dis-
missed.)
Bennett AG.: I agree. I found my judgement refusing the ap-
plication of section 4 of the English Statute of Frauds, in virtue of
section 9 of the Civil Justice Ordinance, on the particular circum-
stances of this case, there being in my opinion no sufficient justification
for such application in this case, even if it is open to the court to import
into the law of the Sudan the positive provisions of an English statute,
either generally or for the particular purposes of an individual case;
as to which proposition I must neither be taken to assent or dissent.
In England an acknowledgment in order to revive a debt barred
by the Statute of Limitation must be in writing. In the Sudan, section
9 of the Prescription and Limitation Ordinance provides that the
acknowledgment may be either written or verbal. There is therefore
statutory authority in the Sudan for the application of a different
principle, so far as the necessity of a writing is concerned, to that con-
tained in the English statute law.
Application dismissed