REPORTS

(COURT OF APPEAL)

SIR EL KHATLM HAG EL BASHIR v. SUDAN GOVERNMENT

AC-REV-I20-1956

 Principles

·  Civil Procedure—Hearing—Adjournment—Plaintiff  unable to appear because of illness Dismissal based on defendant’s documentary evidence is improper

An action which was dismissed on the basis of defendant’s documents  while plaintiff was unable to appear due to illness, was not properly heard and should
be remitted for trial on the merits.

Judgment

Advocates: Mubarak Zarroug ……………...for applicant

Yousif Abdel Rahman, for the Attorney-General ………………for respondent

R. C. Soni I. February 19, 1957:- this is  an application for revision of the decree of the Judge of the High Court, Khartoum, passed by Hassib J. in HC-CS-295-1956 dated July 25, 956.

It is not necessary to go into the facts of this litigation, as the point before us is quite a simple one. The plaintiff brought his suit before the trial court, alleging that permission of certain authorities to do what he wanted to do was unreasonably withheld Issues were framed, and the case set down for hearing on a date in June. On that date it was discovered by the court that through a mistake of one of the officials of the the record of certain criminal proceedings taken against the plaintiff, which contained certain documents, was not available to the court. The case was adjourned to a date in July. On that date the plaintiff’s advocate was  present so also was the defendant's advocate the plaintiff applied fo an adjournment  on the ground that the plaintiff was ill. He was to have brought certain documents, which could not be had on account of his illness. The defendant’s advocate did not challenge the illness, but said that the plaintiff had no case. The court examined the documents in the criminal case, and having done so, refused the adjournment and dismissed

• Court:  C. Soni J. and M. I. El Nur I.

the plaintiff’s case on the ground that having perused the documents it was dear to the court that plaintiff could not succeed, since the documents would not support him. From this order a revision application has been made in this court, and it is urged that the plaintiff had not been given the opportunity which the law allows him of proving his case, which meant hearing the plaintiff’s testimony, his explanations of documents, his production of other documents and hearing his other evidence. Learned counsel for the defendant-respondent urged that a court may proceed to deal with a case, if a party has been given an opportunity to prove his case and does not do so.

All rules are to be read subject to the proviso that the opportunity could not be availed of on account of reasonable cause. The ground for the plaintiff’s absence was illness. Since this is not contested, it was unreasonable not to have given the plaintiff a further opportunity to prove his case. His case could not be prejudged without hearing what he had to say on the matter, without hearing his objections, and without allowing him a chance to put in his documents in rebuttal or without hearing his witnesses. Not only that, the judgment and the proceedings in the criminal case against the plaintiff were irrelevant in the civil case, and the documents could not be looked at, nor could they explain themselves.

In our opinion the procedure adopted by the learned judge of the court below was wrong and has caused a miscarriage of justice in this case. We therefore set aside his order and decree dismissing the plaintiff’s action.

This case comes from the Northern Province, and was originally tried there. It was later ordered to be transferred to Khartoum to be tried here. We have not been able to find the grounds of transfer, but we have consulted the Honourable Chief Justice, who has no objection to the case being tried at the place where the cause of action arose.

We accordingly accept this revision application, set aside the order of the court below dated July 25, 1956, and remit the case to be tried on its merits (after plaintiff is granted a full opportunity to prove his case), to Province Judge, Northern Circuit, Ed Damer.

M. I. El Nur J. February  19, 1957 : —I concur.