Case No.:

AC-RE V-2o3-1961

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Civil Procedure—Venue-—Actions against Government—Civil Justice Ordinance 1929, s. 48—Where action arose—Government does not reside”

This action was brought in Khartoum for breach of statutory duty by the
Port Sudan Harbour Authority. The Court of Appeal held that the Sudan
Government does not “reside “; the action must be brought under Civil Justice
Ordinance 1929. S. 48 in the province where the cause of action arose.

Judgment

(COURT OF APPEAL) *

SUDAN GOVERNMENT v. NICOLA GINNIS

AC-RE V-2o3-1961

Advocates: Abbas Imam for Attorney General

Ahmed Guma’a ... for plaintiff-respondent

B. Awadalla 1. October 31, 1961: —The question involved in this case is whether the Sudan Government can be sued in Khartoum for an alleged act of breach of statutory duty on the part of the Port Sudan Harbour Authority causing damage to the plaintiff-respondent,

His Honour the Province Judge, Mudawi P.J., answered this question in the affirmative on the ground that the “Sudan Government resides in Khartoum as well as in Port Sudan” and therefore the choice of the venue lies with plaintiff. It is for us now to decide whether or not His Honour the Province Judge was right.

But before proceeding to consider the point, I feel it is my duty to point out the serious defect in the plaint and the more serious attitude of the court in allowing action without that amount of scrutiny required by the Civil Justice Ordinance, Chapter VIII. The facts constituting the cause of action, in particular the relevant law, which prescribes upon the defendant a certain course of conduct, are not fully indicated. As no wrong to “person or property” is alleged, then the relevant section-governing jurisdiction is Civil Justice Ordinance. s. 48, and not S. 4

So far as relevant, Civil Justice Ordinance, s. 48, says that suits not covered by Civil Justice Ordinance, s. 47, shall be instituted in either:

(a) the province within which the cause of action wholly or in part arises, or

(b) the province within which all the defendants at the time of the commencement of the suit reside or carry on business or personally work for gain.

The argument of the learned Attorney-General (represented by Sayed Abbas Imam) is that the word “resides” refers only to natural persons and cannot apply to commercial corporations or the Government. He cites Govindarajulu V. Sec. of State for India (1927) A.l.R. (Madras) 689.

The learned advocate for plaintiff-respondent S that His Honour the Province Judge was right in saying that the Sudan Government resides everywhere, in Khartoum as well as in Port Sudan, and therefore can be sued anywhere.

Forgetting for the moment the argument of the learned Attorney- General, I believe the contention that the Sudan Government resides everywhere is in itself an admission that it does not reside within any specific Province and therefore contains its own refutation of the theory that the criterion of p residence can be made to apply to it. To assume that the Sudan Government resides everywhere in the Sudan and the seek to confine it to one province is just like saying that Khartoum town is within the Law Courts.

The truth is, as the learned Attorney-General contends, that the word “resides” cannot apply to the Sudan Government or other legal entities but applies only to natural persons. This was the view held by the Madras and Lahore Courts in India and we see no reason why we should depart from their decisions. The conception of ‘ residence” is simply and purely human. As was said by Blackburn J., “a man’s residence is where l habitually sleeps Oldham i 0 M & H i 8 quoted in 3 Stroud Judicial Dictionary 2569 (3rd ed. 1953

Jurisdiction in this case is therefore solely to be decided by the place where the cause of action arose.

This application is therefore allowed with costs, and the order of His Honour the Province Judge is hereby set aside.

M. .A. .Abu Rannat C.]. October 31, 1961: —l concur.

* Court: M. A. Abu Rannat Cf. and B. Awadalla J.