Case No.:

(AC-Revision-88-1959)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Civil practice and procedure—Specific performance—Hardship to defendant a ground for refusing a decree of specific performance

Specific performance is a discretionary remedy and the uit will not grant it if damages would fully compensate the plaintiff. Even where the remedy in damages is inadequate the court may refuse a decree where to grant one would cause hardship to the defendant.

Judgment

COURT OF APPLE

FAWAZ YASSA v. GALAL MOHAMED ABDEL GHAFOUR AND HASSAN HAMID ABU HUSSEIN

(AC-Revision-88-1959)

Revision

Advocates:                Henry Riad for applicant.

Gaafar Osman for first defendant.

Siddik Ahmed Kbeir for second defendant.

August 17, 1959. M. A. Abu Rannat C.J.: —This is an application for revision from the decree of the judge of the High Court, Khartoum, dated March 28, 1959, in HC-Revision-324-58. The facts are: The defendant, Galal Mohamed Abdel Ghafour, is the registered owner of a house in Omdurman, known as Hosh No. 2/5/123(1) comprising an area of 687 square metres or thereabouts. The plaintiff, Fawaz Yassa, brought an action against the said defendant claiming that he purchased on different dates from the defendant the whole house for £S.8oo, and claimed either a decree for specific performance or the recovery of the £S.8oo which was paid as the rice for the house. At a date subsequent to the dates of agree ment of sale between plaintiff and defendant, the latter sold to Hassan Hamid Abu Hussein half the house for £S.6oo of which the defendant, Galal, received £S. Hasan Hamid Abu Hussein was later joined as a second defendant in civil suit No. 311 -58

After hearing the evidence of the plaintiff and the second defendant (Hassan Hamid Abu Hussein) the District Judge passed a decree ‘orderir’g the first defendant to pay to the plaintiff £S.799 and costs, and to pay the second defendant £S. and costs. This decree is dated July 26, 1958.

It is observed that this decree was not made in the presence of the first defendant, although it was written by the District Judge that all parties were present. Thus this decree is in effect a default decree in respect of the first defendant. No copy of this decree was served on the

*Court: M. A. Abu Rannat C.J. and M. I. El Nur J.

First defendant until the plaintiff took execution proceedings on August 2, 1958. And the first defendant only knew of the decree when the Registrar of Lands on September17, 1958, was valuing the house, the subject-matter of the suit, for the purpose of its sale in the execution proceedings.

On the same day, the first defendant petitioned the judge of the High Court saying that he never knew of the default decree and applied for the default decree to be set aside. He paid the fee on his application on September 22, 1958. The leaned judge of the High Court wrote on the record: “In this application, the applicant disputes the total amounts decreed against him, and applies for the decree by the District Judge to be set aside, and it appears that there are some reasons for this. I therefore decide the acceptance of the application, and order stay of execution proceedings and summoning of other parties for April 26, 1959.”

The order of the learned judge of the High Court for summoning the parties was never carried out, and the learned judge did not see the file again and therefore no decision was made in respect of the first defendant’s application.

On October 14, 1958, Hassan Hamid Abu Hussein, the second defendant, applied for revision to the judge of the High Court against the decree of the District Judge, Khartoum, and contended that he was entitled to a decree for specific performance in respect of half the area of the house. Again the first defendant was never summoned to appear at the hearing of this application, nor was he given notice of what was going on in respect of the house. The learned judge of the High Court having heard the reply of the plaintiff to the application made by the second defendant passed a decree on March 28, 1959, ordering the registration of half the house to the second defendant. Against this decree, the plaintiff applied for revision to this court on the ground that the decree for specific performance in favour of the second defendant was against his’ since the remaining part of the house would not satisfy the amount decreed to him by the District Judge.

In the course of hearing this application the first defendant admits before us that he received from the second defendant the sum of £S.59o,) but he objects to the decree for specific performaitce in respect of the registration of half of hi house to the second defendant. He also states that he never admitted the whole claim of the plaintiff and that the District Judge never took his evidence after the issues were framed.

On these facts, we think that the first defendant was not given a chance to defend the claim brought against him by the plaintiff, nor was he given a chance to oppose the decree for specific performance of the agreement of sale, which was passed by the judge of the High Court in favour of the second defendant. Specific performance is a discretionary remedy and the court will not grant it if damages would fully compensate the plaintiff, and there are also many cases in which the court will not grant specific performance even if the remedy in damages is not sufficient; and in an action for the specific performance of a contract of the class usually enforceable, the court will have to take into account circumstances such as the conduct of the plaintiff, or the hardship which an order for specific performance would inflict on the defendant, which could not be taken into account in an action for damages for breach of contract. We feel that the second defendant was not in part possession of the house, and that the order of specific performance would cause great hardship to the first defendant.

In our view this application must be allowed, and consequently we make the following directions:

(a) The decree of the judge of the High Court dated March 28, i9 ordering specific performance is set aside, and that pa of the decree of the District Judge dated July 26, 1958, awarding the second defendant damages amounting to £S.59o and £5.45 as hosts is reaffirmed.

(b) The part of the decree of the District Judge ordering the first defendant to pay to the plaintiff Fawaz Yassa £S. plus £5.57 as costs is set aside; and it is directed that the first defendant be heard in his defence in respect of the amounts paid to him by the plaintiff and a fresh decree be given on the merits in respect of the plaintiffs claim. No order is, made as to costs.

August 17. I959. M. I. El NurJ. : —l concur.

                                                       (Revision allowed. Order accordingly)