Case No.:

AC.APP- 5 -1960

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Personal law—Survival of actions concerns inheritance and is decided according ‘to personal law

·  Tort—Survival of actions—Apply personal law under Civil Just Ordinance, s.5

·  Tort—Survival of actions—Sharja allows survival of action for pain and suffering only if associated with death action

·  Mohammedan law—Survival of actions — Sharia allows survival of action for pain and suffering if associated with death action

·  Tort—Survival of actions—Sharia allows survival of action for shortened expectancy of life

·  Mohammedan law—Survival of actions—Sharia law allows survival of action for shortened expectancy of life

·  Tort—Damages _Shortened expectancy of life—May not consider social or financial position of the injured

Deceased, a Mohammedan, was killed by negligence of defendant’s servant. Deceased’s heirs, also Mohammedans, claimed damages for shortened expectancy of life and for deceased’s pain and suffering from the accident before her death,
Held: (i) Because the law of survival of actions involves questions regarding inheritance, the rule of decision shall follow Civil Justice Ordinance. s. g, governing law in personal matters; therefore where plaintiff and pl decedent are Mohammedans Sharia will be followed,

(ii) In Sharja causes of action for damages for pain and suffering do not survive unless the pain and suffering results from an injury causing death and resulting in a death action; since plaintiff and plaintiff’s decedent are Mohammedans plaintiff may sue for damages for the pain and suffering of his decedent,

(ii) In Sharia causes of action for damages for pain and suffering do not survive unless the pain and suffering results from an injury causing death and resulting in a death action; since plaintiff and plaintiff’s decedent are Mohammedans plaintiff may sue for damages for the pain and suffering of his decedent,

(iii) Because plaintiff and plaintiff’s decedent are Mohammedans, and in Sharia causes of action for compensation for “shortened expectation of life” survive, plaintiff may bring this cause of action for decedent’s “shortened expectation of life,’

(ii) In Sharia causes of action for damages for pain and suffering do not survive unless the pain and suffering results from an injury causing death and resulting in a death action; since plaintiff and plaintiff’s decedent are Mohammedans plaintiff may sue for damages for the pain and suffering of his decedent,

(iii) Because plaintiff and plaintiff’s decedent are Mohammedans, and in Sharia causes of action for compensation for “shortened expectation of life” survive, plaintiff may bring this cause of action for decedent’s “shortened expectation of life,’

(iv) In determining the amount of damages for shortened expectation of life the social and financial position and prospects of the victim aje not to be Considered
*court B. A wadalla  J. and A. M. Imam J.

Judgment

(COURT OF APPEAL) *

HEIRS OF EL NIEMA AHMED WAGEALLA v. EL HAG AHMED MOHAMED

AC.APP-  5 -1960

Advocates: A. Abu Hassabu………. for the plaintiff - Applicant

     Abdel Wahab Abu Shakima… ... for the

B. AwadallaJ. April 11,1961:- This is an appeal by the plaintiffifs in CS-2 1 8-1957 against the decision of His Honour the Province Judge EL Darner, awarding then a sum of £E.100 by way of damages for the heris.

of life of deceased El Niema Ahmed Wagialla of whom the plaintiffs .(appellants) were the heirs.

The facts are not in dispute and are clearly shown in the judgment of the court below. There is therefore no need to restate them here.

The grounds of appeal as given by the learned advocate for applicants, Advocate Abdel Magid Abu Hassabu, are as follows:

(a) that His Honour the Province Judge was wrong in law in tab into consideration when assessing the damage the financial  position in life of the deceased'

(b) that His Honour the Province Judge was wrong in law In failing to take into consideration when assessing the damage the and suffering to which the deceased was subjected from the time of the accident until her death;

 (c)that His Honour the Province Judge was wrong in law in failing to take into consideration when awarding damages. the funeral expenses incurred in consequence of the accident.

Advocate Abu Shakima on behalf of the respondent replied to t above points as follows:

As regards (a): he cites Lord Simon’s statement in Benham v. Gambling 91941) A.C. 1571. that the thing to be valued in cases of this sort is 1

prospect of a predominantly happy life” and contended that applying that test to this case he did not think deceased had a future to rely on.

As regards   )b) the learned advocate for the respondent argues that the pain and suffering undergone by deceased in this case was not of r. long a duration as to justify consideration in awarding damages, lastly

As regards (C): he submits that there is no evidence that any expenses were incurred by appellants.

The case was adjourned for judgment and the question arose to what extent the accrual to an estate in the Sudan of damages for pain and suffering and shortened expectation of life should be recognised by Sudan courts. So far as I know, there has been no decision on the In the case of non-Mohammedans, the matter is of course governed by Wills and Administration Ordinance, 1928, s. 40, which followed the English common law before the Law Reform (Miscellaneous Provisions) Act1934.

I think that in the case before us guidance will .be found in Civil Justice Ordinance s. 5. for the matter is one of inheritance and the law applicable in the case of Mohammedans is of course Mohammedan Law. The court therefore framed two questions and referred them for answer by the Grand

Kadi:

(a) Whether in Sharia law the right to compensation for “shortened expectation of life” recognised by the civil law courts can be inherited by the heirs of a deceased Mohammedan ; and

(b) whether in Sharia law the right to compensation for pain and suffering can be recognised in the same manner.

His answer was affirmative in so far as (a) is concerned but negative as regards (b) except in so far as it can be taken into consideration when assessing the damage under (a). In other words, if the pain and suffering were unrelated to the cause of death then the right to damages in respect thereof is not inheritable. In the case under consideration the same injury which resulted in death was the cause of the pain to which the deceased was subjected before her death and therefore, in accordance with the ruling given above by the Grand Kadi, the right of the deceased to receive compensation in respect of it is inheritable by his heirs. It may be said that it would be highly anomalous to allow Mohammedan estates to be inflated through the operation of a rule of law the recognition of which. in the case of non-Mohammedans. was denied by the Wills and Administration Ordinance. This may be true, but the question is wholly governed by the personal law of the deceased and if the Mohammedan law recognises such a progressive principle. (which in England was only adopted in 1934), I cannot see why Mohammedan heirs should suffer for no reason other than lack of foresight on the part of the legislature in incorporating into the Wills and Administration Ordinance an archaic principle of English common law which is void of all reason.

I now come to the merits of this case. I entirely agree with the learned advocate for appellants that His Honour the Province Judge was wrong in taking the social position of the victim into consideration when ass the damage for loss of expectation of life. “The social position of the victim, his prospects of wordly possessions. the financial losses or gains of which he has been deprived are to be excluded from consideration.” Salmond, Torts 328 (13th ed.. 1961).

I also agree with the learned advocate for appellants that His Honour the Province Judge was wrong in failing to take into consideration the pain and suffering which the deceased was subjected to for ten days, the argument by the learned advocate that the period of ten days is too short for recognition is of course highly untenable.

There was no evidence as to the funeral expenses incurred by the estate and if such evidence were available, I see no logical reason why such expenses should not be taken into consideration.

Taking all the circumstances together, I am of opinion that a sum of at least £S.500 ought to have been awarded in this case.

This appeal is therefore allowed with costs and the decree of His Honour the Province Judge altered accordingly.

 A. M. Imam 1. April 11, 1961 :- I concur.

EDITOR'S  NOTE.—The following are the two letters exchanged between Mr. Justice Babiker Awadalla and the Grand Kadi on the subject of survival of actions in Heirs of El Niema Abmed Wagealla v. El Hag Ahmed Mohamed (1961)S.L.J.R. 221. See Note on this case by David L. Perrott, Lecturer in Private Law. University of Khartoum (1961) S.L.J.R. 280

النمرة م ش / العموم/22/استشارة/1961

الخرطوم في 30/3/1961

سعادة المحترم قاضى المحكمة العليا

بعد التحية الطيبة

بالإشارة لكتابكم نمرة محكمة استئناف /استئناف 5/1960 بتاريخ 27/3/1961 بخصوص الاستئناف المقدم من ورثة المرحومة النعمة بنت وقبع الله .

أبدى الآتي

التعويض عن الحرمان من الحياة حق يرثه ورثة المتوفى أما التعويض عن الآلام فيورث إذا حكم به قبل الموت .

          فإذا لم يعط القضاء فيه رأيا حتى توفى المصاب فإنه لا يورث أما إذا كان مقدرا ومراعى عند الحكم بالتعويض عن الوقت الواقع بعد الآلام فانه يورث أيضا .

تقبلوا فائق الاحترام ،

                                                                                م . ع استحق

                                                                             قاضى قضاة السودان

                                                                                   السودان

224

                                                                   ورثة النعمة احمد وقيع الله

                                                                                                                          ضد

                                                                                                                      الحاج احمد محمد

27 مارس 1961

حضرة صاحب الفضيلة قاضى القضاة

بعد التحية والاحترام ،

أمام هذه المحكمة استئناف مقدم من ورثة المرحومة النعمة بنت وقيع الله يطلبون فيها ما كانت تستحقه من تعويض من جراء حادث تصادم أفضى الى موتها .

وقد حدثت الوفاة بعد عشرة أيام من تاريخ الحادث وهذا الحق الذي يدعون به ثابت للمتوفاة وكانت تستحق حكما به لو لم يقدر لها أن تمت – وينقسم الحق إلى قسمين :-

أولاً            التعويض عن الآلام التي تكبدتما في عشرة أيام التي عاشتها .

ثانياً            التعويض عن حرمانها من حقها في حياة أطول .

                فالرجاء من فضيلتكم أن تتكرموا بإبداء رأيكم فيما يلي :-

                " هل هناك في الشريعة ما يمنع من توريث هذا الحق " إذ انه على الإجابة على هذا السؤال يتوقف قرار المحكمة هذه .

      وتقبلوا فضيلتكم بقبول فائق احترامي.،   بابكر عوض الله   قاضى المحكمة العليا     عضو محكمة الاستئناف