(COURT OF APPEAL)*

AHMED DAFALLA vs. EL SAYED ABDALLA IBRAHIM

(AC-APP-25-1956

Principles

·  Partnership—existence of—meaning of partner—ignorance of witness

The Appellant had advanced some moneys to his co-defendant  in return for a share its profits to be made therewith. He was never asked to contribute to make good losses, which were substantial. On the contrary on severance of the relation ship between them, the co-defendant stated that he owed to the Appellant a sum of money. There was no partnership deed, no advertising of the setting up of, nor of the dissolution of a partnership, and no common property. Further no evidence of the existence of a partnership was adduced by the Respondent who based himself on an admission by the Appellant to be a “Partner”, when sued on a dishonoured cheque signed by the co-defendant. Judgment having been entered against the Appellant he appealed
Held: (i) Where there is no partnership deed the facts would have to be investigated. These prima facie did not indicate the existence of a partnership.
(2) The statement of a witness in ignorance of the legal implications involved cannot be used to pin a label on him. He should state facts in evidence and not propositions of law which it is for the Court to state.
New trial ordered with rights in parues to adduce further evidence..

Appeal:

By second defendant only. The facts are fully set out in the Judgment of Soni J.

Advocates: El Sayem Mohd. Ibrahim  ……for Appellant

Hag el Tahir.. …………...……………… for Respondent

(‘) Court :— Nur Soni and Hassib J.J.

Soni J. : - This is an appeal by the second defendant from a judgment and decree dated 28th May 956 of the Province JudgeKordofan Circuit decreeing the plaintiff’s suit for L.E 366,237 m/ms with costs.

The Plaintiff alleged that Defendant i and Defendant 2 were running a partnership in El Obeid. Defendant i drew a Chequefor LE.366.237m/ms in favour of the Plaintiff which was dishonoured when presented to the Bank for payment. Plaintiff sued to recover the amount mentioned from both the two Defendants. Defendant  1 admitted the claim. Defendant 2 admitted being a partner, but denied liability. The Judge at the trial decreed the claim In appeal by Defendant 2 it is urged that though it is true that Defendant 2 admitted being a partner with Defendant 1 yet that term implied a legal concept which was not grasped by the second defendant. The facts which have been proved, indicate that there was really no partnership between them, but the legal relationship between the first and second defendants was merely that of a lender and borrower, and thus there is no liability attaching to Defendant 2 for the amount of the Cheque which was not issued by Defendant 2 but by Defendant 1 The facts, or rather such of the facts, which have been proved in this case at are  as follows. There is no written deed of partnership between the two defendants, Defendant 1 lives in El Obeid, where the Plaintiff lives, while Defendant 2 lives in El Nahud There was no advertisement or announcement at the time when the partnership was formed in October 1953, nor was there any such advertisement or announcement when the two defendants parted in April 1955. The Cheque was issued in July 1955. There was no letter paper with the Firm’s name. There is no mention of the firm having a sign board in El Obeid. There is no evidence of a common property. There is a statement by the second Defendant that he was to get a share in the profits only. In April 1953 when the two defendants met finally to settle accounts and to part, there was a loss of L.E.2,000, but the first defendant not only never asked the second defendant to pay his share of the loss, but found that he owed him a sum of LE.300. The first Defendant never sued the second defendant for his share of the loss. Some creditors who had been dealing with the alleged partner ship sued only the first defendant, but not the second defendant which they would have done if there was really a legal relationship of partners existing between the two defendants. The plaintiff in his statement  admitted that he only heard that the two were partners, he never talked to Defendant 2 at .II. No witness has been produced to testify to the facts of there being a partnership. It is urged by learned counsel for

(**) Defendant 2, that mere sharing in profits (without more) does not create a legal relationship or partnership between two persons.

Reference was made to the case of Cox vs. Hickman*, decided by the House of Lords and to Underhill on Partnership. It is urged that Defendant 2 never took part in the business, he merely advanced money only once as a loan. At the time when the accounts were taken in April 1955 and a loss of LE .2,000 was found by Defendant 1 he never mentioned  to Defendant 2 the existence of this sum of LE.366.237m/ms. for which the Plaintiff has brought the present suit. In these circumstances, learned counsel for Defendant 2 urged upon us that we should not pin Defendant 2 with legal consequences of the use of the word “partner” whose significance he never understood. Learned counsel in reply said that Defendant 2 having admitted that he was a partner, he must be regarded as such, that admission bound him and that there was art end of the matter.

We do not look at the matter in this light. If often happens that persons in this world do not understand what they are saying. A man cannot be pinned to a label. A litigant in Court has to state facts, not propositions of law. It is for the Court to discover the facts, and having got all facts about the matter before the Court,  the Court then applies legal principles. There being no deed of partnership, we have to depend on facts discovered otherwise, from the acts and conduct of parties, from relevant statements of witnesses, from surrounding circumstances, and from all other material that could be produced on the subject matter. We feel that parties have not been examined at sufficient length on the various topics mentioned above. From what has been already brought out in evidence, it seems to be prima facie clear that Defendant 2 did not understand the significance or the use of the word “partner”. Neither counsel on both sides nor the Court paid sufficient attention to probe into the matter and get sufficient details from which it could be said that the facts prove or disprove a partnership in fact, or some other legal relationship between the two defendants.

We, therefore, set as the decree of the Court below, and remand the case to the trial Court with a direction to examine all the parties in greater detail, to allow any fresh evidence which would be relevant to be produced by all the parties, and having discovered all the facts, then to write a fresh judgment discussing the facts found and coming to a conclusion one way or the other. The mere mention of the word

(*) (1860) 8 H.L.C. 268.

“partner” should not be considered sufficient. Defendant 2 in fact has denied the partnership. The burden of proving the partnership is on the plaintiff and should be borne in mind by the Court when discussing  the evidence and writing its judgment.

Nur J.               I concur

Hassib . J :             I concur

                                                                                    (New Trial ordered)