Case No.:

(HC-152-1969)

Court:

The High Court

Issue No.:

1960

Principles

·  Contract—Intention to enter into legal relations—Whether refusal by students to continue a course of training abroad is a breach of contract with the Sudan Government which is supporting them—What constitutes breach of contract by Sudan Government

·  Damages—Whether general damages recoverable for loss of reputation arising from the defendants alleged breach of contract—Expenses incurred by a third party not recoverable by the plaintiffs

Where students signed an agreement “to repay the Sudan Government any expenses incurred by them by reason of any breach of the obligations imposed by this agreement,” and then capriciously refused to continue a course of study at an Indian agricultural institute:
Held: That the Sudan Government were entitled .to recover the expenses that they had incurred in connection with the students.

0

Judgment

.

(HIGHT COURT)

SUDAN GOVERNMENT v. AHMED ABDEL RAZIG AND

ABDEL RAZIG ABDEL HAMID

(HC-152-1969)

SUDAN GOVERNMENT v. ABDEL LATIF ALI ZARROUG AND

TIGANI ALl ZARROUG *

(HC-CS-153-1959).

Action

The facts are fully set out in the judgment of T. Cotran J.

Advocates: Osman Saled for Attorney -General ……for plaintiff

                    Mubarak Zarroug and Abdalla el Neguib… for defendant.c

June 1, 1960. T. Cotran Acting J.: —By this consolidated action, the plaintiffs, who are the Sudan Government, are suing the defendants for alleged breach of contract which arose in the following circumstances: — The Government of the Republic of the Sudan, vide a letter dated March 31, 1958, accepted the offer of the Government of the United States of America to furnish it with economic, techi and related assistance (Exh. A). Part of this technical assistance consisted in the sending, at United States• Government’s expense, of selected Sudanese candidates to various American and other universities and institutions to specialise in technical fields in which the Sudan is in need of specialists.

* 

The Forestry Department of the Ministry of AgricultUre being in need of forestry specialists, thereupon advertised in the Press inviting candidates to apply for two vacancies that existed in American universities. The tirst and third defendants each having just arrived from Cairo after obtaining an agricultural degree from its university, applied for those two scho’arships (Exhs. K, L and M). They were duly selected, but then it transpired that university vacancies were not available in the United States, and the above-named two defendants were invited to go to an Indian institution instead. They accepted to go and both of them signed an undertaking, one of its terms being:

“To repay the Sudan Government any expenses incurred by them by reason of any breach of the obligations imposed by this agreement.”

(Exh. B. Clause 9)

The father of the first defendant and the brother of the third defendant also signed the undertaking in which they “guaranteed that he (the student) will properly fulfil all the obligations hereby undertaken by him and I agree to indemnify the Sudan Government against all claims and expenses made or incurred by or in respect of the said (student) during his course of study which are not covered by the terms and conditions for the time being in force.”

The two student defendants left Khartoum on November 9, 1958, for the Forest Research Institute, Dehra Dun, India. Dehra Dun is a small town of about 100,000 inhabitants at the foot of the Himalayas, and some 120 miles from Delhi. Each of the students had a return ticket to Khartoum. Each was given ioo dollars by the American Mission in Khartoum and £S.50 by the Sudan Government.

The students arrived at New Delhi on the evening of November 12, 1958. They left Delhi for home on November 21, 1958, reaching Khartoum on November 22, 1958. Their effective stay in India was about nine days. What had happened in those days will be discussed later; let it suffice to say that the Government decided to sue the students and their guarantors for damages claiming the following against each student and his guarantor:

(i) £S.50 paid by Sudan Government.

£ (ii S.34.6oom/ms given by the United States Mission in the Sudan in dollars.

(3) LS.31.14 Given by the United States Mission in India.

(4) LS.2oo.87om/ms representing the cost of the return air ticket that

(5) LS.500 general damages to the Government “for the bad reputa tion it got before public opinion, international organisations, and Indian educational institutions, and for the loss of opportunity which the Sudan Government suffered, which opportunity could have benefited the country if other responsible students were sent.”

The complaints of the student defendants have been summarised in their letter to the Director of Forests on their return, Exh. H. More reasons were given by them in the witness box. Their first complaint was that before their departure they were given to understand that if they passed the examinations they would be given a B.Sc. degree in forestry, but that when they reached India they discovered that Dehra Dun was not a university but a research institute that does not award degrees but a diploma, and that the subjects studied there were a mere repetition of the subjects which they had in their Cairo degree. The student defendants demanded that the institute should “elevate the standard “ of their course! Their second complaint was that they were given to understand that they were at liberty to live outside the hostel and have “their families” join them a month after their arrival, and that they discovered that none of these were permissible. Their third complaint was that they read in a booklet they were given called “Instructions to Participants in USOM Foreign Training Projects” (Exh. I) Page 6, para. E, that they would be granted “12 dollars per day for your first 20 days in the country while you are on short field trips, and for other periods when you are considered to be in transit, i.e., when you do not stay in one place for more than 20 days,” and “8 dollars per day when you are in residence at one location for more than 20 days, and pay commercial rates for food and lodging “; and “7 dollars per day when you pay for lodging and meals in the dormitory and cafeteria of a college or university or other training facility” and then when they reached India they discovered that their allowance was the equivalent of £S.15 per month. The fourth complaint of the student defendants related to the weather conditions of Dehra Dun; that it was very cold, the town being at the foot of the Himalayas. The fifth complaint related to the food served at the Institute of Dehra Dun. The student defendants did riot find it to their taste, as there was no meat; and eggs and milk were non-existent. There was also a complaint that the Indian trains were awful. The students claim that all these complaints constitute breach of contract by the Government, which justifies their return to the Sudan.

The negotiation between the studets and the government were conducted by  Mr. Sing of the Department of Forests conducted the negotiations between the students and the Government. Mr. Sing has appeared before me. Though he tends to exaggerate the merits of things, persons and places, I found him a witness of truth and the vile things said about him by the defendants are untrue. Where his evidence conflicts with theirs. I prefer his. What has happened in this case was that the two defendants did not expect what they had actually found in India. For several years past they were studying in the University of Cairo, a large universit by any standard, in the capital of Egypt, in a country that speaks the same language as theirs, and where the amenities and social life were very different from Dehra Dun. Dehra Dun is not a university but an institute for forestry research only, and obviously it lacked the wide student atmosphere that is found in a university with a diversity of faculties; and after the sophistication and bright lights of Cairo the students must have found the place so completely dreary that they made up their minds to come back at any cost. They were in such great haste that they did not even think it worthwhile to wait for some instructions from Khthtoum.

The plaintiffs have satisfactorily disproved the complaints, which I have tabulated above, and which the defendants allege were breaches of undertakings by the Government have been satisfactorilydisproved by the plaintiffs.

As to the first complaint, the answer is that the “diploma” awarded by Dehra Dun is not an inferior certificate and according to the prospe’ctus of the institute (Exh. 9) and the “Directory of Forests Schools” issued by tl Food and Agricultural Organisation of the United Nations (Exh. E, p. 5) the entrance qualifications to the institute are a Bachelor of Science, Honours, and not lower than second class in natural science, mathematics or agriculture. The students, in other words, held less than the minimum entrance requirement as their degree from Cairo was a “pass” degree and it was only through the intervention of the Indian Embassy in Khartoum (Exh. F and G) that these two vacancies were secured for them. Therefore this question of “elevatjng the course” is just complete and utter nonsense. It goes without saying that you could do in a higher institute research in a subject, which you studied in a school or college. The fact that a subject was taught in a school or college does not mean that the student knows all about the subject and the fact that the defendants had studied in Cairo some of the subjects that were in the curriculum in Dehra Dun does not mean repetition but must mean, in view of the fact that it is a research institute, wider and more elaborate study of the subject.

Their second complaint relates to living outside the school and to the promise that they will be allowed to bring their families. As to the first part of the complaint. I do not think that the subject came up for discu- sion between them and Mr. Sing at all. In my opinion, the students, with Cairo University in the back of their minds, were simply under the impression that they could, if they wish, live outside the campus. With regard to the second part of the complaint, I am satisfied beyond any doubt that the plaintiffs have not at any time undertaken to send the defendants’ families to India after a month. On close scrutiny it is clear that this complaint is a “red herring,” for both student defendants were unmarried. Defendant Zarroug stated on cross-examination that that part of their joint letter referred exclusively to his colleague Abdel Razig. Abdel Razig on cross-examination stated (as indeed is manifest from the details written by him in his application form) that though he was unmarried at the time, he meant by “family” his mother! As I said before the defendants simply wanted excuses, and they invented this one in the hope that they will get away with it. The defendants also seem to have conveniently overlooked Para. 1of Exh. I (p. 7), which states that wives or other dependants are not normally allowed to join their husbands.

As regards the financial assistance complaint, I find also that Mr. Sing had not in any way misled them or promised that they were to receive £S.93 per month as alleged. The defendants have quoted para. E, page 6 of Exh. I, but they have not quoted the paragraph, that applies to them. Viz. (para. d):

“ Other rates of maintenance allowance apply if you are an intern in a hospital, et’c or if you receive your training in a third country” (i.e., a country other than the United States of America).

 I do not think that the complaint about the weather and the food need be answered at length. The students were not going on holiday to the Riviera, but to study. In accepting to go to an Indian institution they must accept what is offered to them. For these reasons I find that the defendants have committed a breach of their undertaking to the Government.

But having said this much about the defendants it is necessary to examine what exactly the Government is claiming and it is here that the difficulty starts. There is no doubt that the defendants have let the Forestry Department down, but this is the first time in my judicial career that I hear of a claim for damage.s for “loss of reputation” (which is a claim in tort), which has arisen through alleged breach of contract, If there was a contract between the parties, and if, by that contract they intended to create legal relationships between themselves, and if one party has committed a breach, the injured party may sue the other for damages for breach of contract. But here the Government in para. (d) Of their statement of claim are suing for loss of reputation and are claiming £S.500 In my opinion this part of the plaintiffs’ claim is completely and utterly misconceived and should have been struck off as embarrassing in the earlier stages of the pleadings.

The other point that must be discussed and which was raised by learned advocates for the defendants is whether the parties intended to create legal relations between themselves. Taking into consideration the contract and its terms, I have formed the conclusion that legal relations were in fact intended but I have reached this conclusion with the greatest possible hesitation. Looking at the undertaking as a whole one cannot help feeling that every clause of it is vague. Supposing for example the student, in breach of Clause (i) of the undertaking, did get married. Can the Govern ment sue the defendant for breach of contract? If “Yes,” what are its chances for.success and is it not against public policy to prevent anybody from marrying, even for a specified period, and then what is the measure of damages for such breach? What happens if the student after doing his best fails in his examinations? What happens if the student refuses to join the Government service after finishing his course? All these terms are very vague and it is quite impossible to assess the damages that will flow “reasonably and naturally” from such a breach. I have said that the parties did intend to create legal relations between themselves, but in my opinion, it is clear that these legal relations were limited to the right of the Government to recover the expenses incurred by them as a result of the student failing to observe the rules. The parties have clearly agreed that this was the measure of damages recoverable. But here the Govern ment are claiming not only the £S.50 which they have in fact incurred but are claiming in addition the expenses that have been incurred by a third party—the American Aid Program to the Sudan. There is no doubt that USOM had in fact lost about £S.260 on each student, but can the Government recover this sum? I think not. These expenses were not incurred by the Government at all.

For these reasons I give judgment in plaintiffs’ favour for only £S. against each set of defendants. There will be no order as to costs.

                                                                       (Judgment for plaintiffs)*

·        Defendants’ appeal (AC/APP/9/1961) sub judice.