Case No.:

(HC-CS-22-1960)

Court:

The High Court

Issue No.:

1960

Principles

·  Civil practice and procedure—Dismissal of plaint as disclosing no cause of action can take place at any stage of the proceedings—Civil Justice Ordinance, s. 56

·  land settlement and registration—Meaning of fraud or mistake” as basis for rectification of the register—Land Settlement and Registration Ordinance, s. 85.

Application for dismissal of a plaint as disclosing no cause of action need not be made before pleadings are filed, but can be made at apy stage of the proceedings. The court has an inherent jurisdiction to dismiss, which is not barred by its having started to hear the case on the merits. Civil Justice Ordinance, s. 56. Considered and applied

.
Where a claim is made to have the register of lands rectified on the grounds of fraud or mistake” something more must be shown, than merely that the land in question was sold to the defendants for a low price. Where the transfer was by a proper formal deed for value, the onus of proving “fraud or mistake” is a heavy one, to be discharged by the plaintiff. Land Settlement and Registration Ordinance. s. 85.

Judgment

1. (HIGH COURT)

HEIRS OF MOHAMED (BEY) HASSAN v. GEORGE NICGLA

DIAB AND OTHER

(HC-CS-22-1960)

Action

Advocates: Faroug (for Zarroug) …….for plaintiffs

                   Safwat (for Atabani)…….. For defendants

August 6, 1960. Osman El Tayeb I.: —Plaintiffs brought a petition to institute a civil suit against defendants claiming rectification of the register on the grounds of fraud or mistake in respect of agricultural lands known as Bugur El Sababi No.1 in Khartoum North comprising about i feddans, registered in the names of defendants.

The suit was allowed on January 16, 1960. On March 5, 1960, advocate for defendants entered a formal appearance and applied for an order of pleadings. The order was made and dates were fixed for filing statement of defence and reply.

Later advocate for, defendants filed an application in which he asked for particulars of the• “fraud or mistake” alleged in the statement of claim. He also pointed out in the same application that the land was undervalued.

As the court ordered, plaintiffs paid the balance of fees on the suggested valuation.

As the court ordered that particulars asked for must be furnished, advocate for plaintiffs submitted an amended statement of claim. It first amended the land to be Bugur No. 1 and No. 3 comprising 166.094 feddans. Then it tried to state the particulars of the “fraud or mistake “; and applied for rectification of the register under section 86 (I think he means section 85) of the Land Settlement and Registration Ordinance.

To this amended statement of claim the learned advocate for defendants raised a preliminary objection on the grounds that:

(a) The allegations, if proved, do not constitute either fraud or mistake. And

(b) They do not show that defendants were a party to the said fraud or mistake, if any, and

(c) The claim is statute barred.

And he applied for the case to be dismissed under Civil Justice Ordinanc section56.

The learned advocate for plaintiffs, in reply to the objection, stated, that (I summarise)

(a) Section 56, Civil Justice Ordinance, applies to the rejection of a plaint, and a suit after being allowed and pleadings ordered cannot be dismissed under it.

(b) Whether the alleged facts, if proved, do or do not constitute fraud or mistake, is a matter t be decided by the court after the trial of the case.

(c) It is not necessary to show that defendants were a party to the alleged fraud or mistake.

I am not going to deal with the question of the statute bar nor with vhether it is necessary to show that defendants were party to the raud or mistake, if any. These two points cannot be decided without the relevant facts being revealed.

Section 56, Civil Justice Ordinance, deals with the rejection of a plaint when, inter a/ia, it discloses no cause of action.

But the practice that has been followed by the Sudan Courts is that a plaint is rejected or in other words a suit is dismissed at any stage of the proceedings, when it appears that it discloses no cause of action. The plaint is the statement of claim in which the cause of action has to be shown. A court has to examine it, and if it thinks correctly or incorrectly that there is a cause of action which can be allowed, the court’s jurisdiction to dismiss it cannot be ousted, if later it appears that there is no cause of ction or that it is bad. Mulla on the corresponding Order 7,rule 11. Ommented as follows:

This rule may be applied at any stage of the suit. Therefore, a plaint may be rejected under this rule even after it has been numbered and registered as a suit.’

The second point that 1 have to decide is whether plaintiffs furnished particulars of fraud or mistake,” and whether such facts, if proved, arc likely to constitute fraud or mistake. There is no dispute that the particulars must be specified sufficiently clearly to show the facts on which plaintiffs are relying to establish fraud or mistake, but of course not thu evidence that they will produce to prove these facts.

If plaintiffs fail to supply sufficient particulars the suit has to be dismissed under section 56 Civil Justice Ordinance, even though the suit is in the stage of pleadings.

Now, what I can understand from the facts alleged is that the administrator of the estate of plaintiffs’ predecessor had disposed of the lands in dispute to defendants for a low price. Had these facts been admitted or proved, where lies fraud or mistake in them? I cannot see either. These facts apparently show that the lands came to be registered in names of defendants as proprietors by a proper and formal deed of sale for value, free from any kind of forgery, fraudulent act or error, omission or mistake.

I hold that the suit reveals no cause of action and it has to he dismissed

                                                           *(Action dismissed)

*Application for revision pending