Case No.:

AC-REV-29-1962

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Civil Procedure—Jurisdiction——Court may not assume jurisdiction it does not have under Civil Justice Ordinance, s. 226

·  Civil Procedure—Jurisdiction—-Civil Justice Ordinance. s. 46—imperative to bring land case in province where land located

Plaintiff brought this action in the High Court. Khartoum for foreclosure against immovable property located in Blue Nile Province. The High Court. Khartoum, accepted jurisdiction under the “saving of inherent powers” pro vision in Civil Justice Ordinance. s. 226. Defendant argued that the High Court, Khartoum. had no jurisdiction to hear claims to land in Blue Nile Province.
Held: (i) No court may assume to itself jurisdiction, which it does not have by purporting to act under Civil Justice Ordinance, s. 226.

(ii) Civil Justice Ordinance, s. 46. is imperative not merely directory in requiring suits relating to land to be brought in the province when the land is located.
 

Judgment

(COURT OF APPEAL) *

SAYED ABDULLAHI EL FADIL EL MAHDI v. ARAB BANK, KHARTOUM

AC-REV-29-1962

Advocates: Abdulla Nagib for defendant-applicant Mahgoub & Dafalla ... for plaintiff-respondent

Babiker Awadalla J. July 31, 1962: —This is an application against the order of His Honour the Province Judge, Khartoum, refusing an objection by applicant against jurisdiction in CS-59o-

The suit in which the objection was made was instituted by respondents, the Arab Bank, for inter alia, a foreclosure order in respect of immovable property belonging to respondent in the Blue Nile Province and known as plot 906, map 13, Talha Regn. Section.

Action was allowed on November 4. 1961, by Abdel Mageed Hassan, Province Judge, and on December 27, 1961, advocate Abdulla Nagib, on

behalf of applicant filed a written objection contending that the Khartoum Court had no jurisdiction to entertain a suit concerning land in the Blue Nile Province and accordingly applied for dismissal of the case.

Advocate Mahgoub, on behalf of the plaintiff-respondent, contended in reply that the objection was unsound and that the correct procedure was for objectors to apply to the Hon. Chief Justice to invoke Civil Justice Ordinance, s. 50 (2).

This objection was considered by Salah Hassan, Province Judge, who refused it on the ground that although Civil Justice Ordinance, s. 46, required institution of such suits within the province in which the property is situated, yet he felt this was a case in which he should exercise his powers under Civil Justice Ordinance, s. 226.

It is against this order that this application is now being made.

In my view the application should be allowed. I entirely agree with the views of the learned advocate for applicant that Civil Justice Ordinance, s. 46, is imperative. We have no proviso similar to that of the Indian Code of Civil Procedure, s. i6, which gives the plaintiff a choice of venue in certain cases involving injury to immovable property. I do not accept the argument of the learned counsel for respondent that the word “shall” in Civil Justice Ordinance, s. 46, is simply directory. It is not. That this is so can be seen from the fact that no court can, by purporting to act under Civil Justice Ordinance, S. 226, assume to itself a jurisdiction, which it does not have.

This is so in India. 1 Mulla, Code of Civil Procedure 476 (12th ed. 1953) says about their section 151 that it does not invest the court with jurisdiction over matters, which are excluded from its cognizance.

This application is therefore allowed with costs, and the order of His Honour the Province Judge refusing to dismiss case is hereby set aside, and an order of termination of proceedings is substituted therefore.

As the proper order which ought to have been made in this case is one of rejection of plaint under Civil Justice Ordinance, s. 6. I hereby order the refund of the fees paid on plaint.

M. A. Hassib, Acting C.J. July 31, 1962: —I concur.

Court: M. A. l-Hassib, Acting C.J. and B. Awadalla I.