Case No.:

PC-REV- 115-1957 (Ed Darner

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Ferries—Unlicensed ferry—Public Ferries Ordinance 5932, S. 4 (1)—Cornpensation to licensed ferryman criminal prosecution not civil corn plaint.

When an Unlicensed ferry is run in an area of river to which an has a licence the licensed ferryman has no civil remedy except what may result as compensation from a criminal prosecution under Public Ferries Ordinance 1932,
S.4 (1).            / \

Judgment

                                                 (PROVINCE COURT)

)

MOHAMED ABDEL MACID EL BELLA v. EL AWAD

SAEED GADAT

PC-REV- 115-1957 (Ed Darner

Osman El Tayeb P.1. January 7. I958: —P chimed compensation from defendant-respondent on the grounds that he was a licensee of a public ferry on the Mushraa’ of Urn el Tiyour and Fadlab— Ed Darner and Atbara between July I, 2954, and June30, 2955, a that defendant had a boat plying for hire on that Mushraa without license, in violation of plaintiff’s own licence, and thereby plaintiff suffered loss.

Action was allowed. Issues were framed as to whether plaintiff was the licensee, as to whether defendant had a boat plying for hi and as to the quantum of the damages.

From the start I have been of the opinion that there was o cause of action that there was no privity of contract between the parties and there was no actionable wrong in tort. When I reached the judgment I found that the learned District Judge had in mind two things: (the Public Ferries Ordinance; and (2) the rules of the English law relating to disturb ance of franchise of ferries.

The Public Ferries Ordinance, S. 4 (1) provides for a criminal prosecution for having a boat plying for hire without licence, and in that compensation may be given to the licensee. As plaintiff applied to the Civil Court for compensation this Ordinance does not apply—so the learned District Judge decided. But he decided to apply the English legal rule of disturbance of franchise of ferries. But finally he dismissed the claim on the evidence that it was not proved that defendant had been running a boat in violation of the franchise of plaintiff.

I agree that the case must be dismissed not on the ground of the violation of the franchise, but on the ground that the case reveals no cause of action.

I do not agree to the application for the English law in this matter. in the first place it was an old rule based on monopoly granted by the King, and its disturbance has been considered actionable as violating a right panted by the King or by statute (as it became in modern times). This ad\ion has been considered to be in the nature of an action on the case. It is one of the peculiarities, and with its own subtleties, of the English common law that we should not generally resort to. In the second place we have the Public Ferries Ordinance and the powers given to local authorities under First Schedule, Part 6 of the Local Government Ordinance, for and regulating ferries.

The applicant as a licensee of a public ferry must seek his remedy under the e in force n the Sudan. We should not create torts that may not receive local recognition.

Applicant feels injustice in ordering him to pay expenses to defendant by way of costs.\ I think there is no injustice in this. He made a totally unfounded defendant. On the one hand plaintiff was without cause of action and in the second the defendant was not the person operating the boat with respect to which he was claiming.

The application for revision is summarily dismissed.