(COURT OF APPEAL)

THE SUDAN CO. LTD. v. MOHAMED NUR ADAM

AC-REV-460-1968

Principles

  Civil Procedure—Pauper---Application to sue in forma pauperis—How to be allowed in a case where there are more than one defendant

In a case when a plaintiff is suing in forma pauperis and there are more than one defendant, the proper procedure is that all the defendants must be given the opportunity to be heard irrespective of whether they avail themselves with this opportunity or not. Then the next step is for the court to decide whether to allow the action with or without fees. The order must be one in respect of all defendants.

Advocates: Abdalla El Hassan

& Abu Shakeima ………………………….for applicant

Abdalla Nagib…………………………… for respondent

Judgment

Mohamed Yousif Mudawi J. October 19, 1968 :—This is an application by advocates Abdalla El Hassan and Abu Shakeima on behalf of the Sudan Insurance Co. (Ltd.) to set aside the order of the court below allowing defendant Mohamed Nur Adam to sue the said company in forma pauperis.The proceedings started by a plaint lodged by plaintiff against three defendants, (1) Abdalla El Sayed Ali; (2) Abdel Aziz Ibrahim and (3) The Sudanese Insurance Co. (Ltd.).

It is an action raised against all defendants jointly and severally. At the foot of the complaint it is stated that the plaintiff is poor and has no income, no movable and no immovables and therefore he requests the court to allow his action without payment of court fees. The court then fixed a date for hearing and ordered that defendants be summoned. On the fixed date the company appeared but the other two defendants were not duly served. Another date was fixed and summonses were ordered to be served. Again the company appeared and again the other two defendants were not duly served. The representative of the company objected to the procedure followed by plaintiff in making the application to sue in formu pauperis and told the court that he would put his objections in writing. Another date was therefore fixed and summonses were ordered in respect of the other two defendants.

On the appointed date only the plaintiff appeared. As for the defendants, the first two were not served with summonses and the representative of the company though duly informed not only failed to appear but also failed to present his written objections referred to above.

The court then made the following orders:

“1. Action allowed without fees in respect of third defendant (i.e. the company).

2. . Summon first and second defendants for October 13, 1968.”

Third defendant made this application to challenge the first order.

In the opinion of this court the order to allow action in respect of one defendant is a bit peculiar and will definitely cause illogical consequences. Closely analysed this order means this:

“The action with regard to one defendant is allowed without fees. With regard to the other two defendants the position is not yet known. It may be allowed with fees and it may be allowed without fees.”

However, it will be most illogical if the court after hearing first and second defendants concluded that action must be allowed on payment of fees in respect of the two defendants. We will have two contradictory orders—one order that fees must be paid and another order that fees must not be paid.

I believe the proper procedure in such cases is that all the defendants must be given the opportunity to be heard irrespective of whether they avail themselves of this opportunity or not. Then the next step is for the court to decide whether to allow the action with or without fees. The order must be one order covering all the case, and in respect of all defendants. There is no such thing as giving a piecemeal order in respect of each individual defendant.

In view of the above the order of the court below is reversed and the case is sent back to be started all over again.

M. E. A. Gassouma J. October 23, 1968:—I agree.

Abdel Magid Hassa J. October 30, 1968 : —I agree.