)HIGH COURT(

MOHAMED AHMED ZAHARIA AND ANOTHER v. CHRISTOS SIMOS

HC-REV-215-1956

Principles

·  Civil Procedure — Jurisdiction — Pleading — Civil Justice Ordinance, 1929, s. 48 — Explanation

The question of jurisdiction is a preliminary issue in a case, and both parties must be given the chance to produce their evidence and submissions.
Representation of a party by an advocate in court is not a test of jurisdiction.

Judgment

D. S. Abu Gazaleh P.J. February t4-1957  this is a revision against the order passed by the learned District Judge of the High Court on November , 1956, deciding that the court below has jurisdiction to hear the above-mentioned civil suit.

The case of the plaintiff is based on a hire-purchase agreement under which the first defendant took on hire a Peugeot vehicle with an option to purchase at the end of the hire.

The record of the case shows that the learned judge decided the issue of jurisdiction on the strength of a mere affidavit flied by one of the parties, namely, the plaintiff. He came to the conclusion that the court has jurisdiction to deal with the case:

(a) because there were payments by the defendants-appellant in Khartoum, and

(b) because defendants-appellant were also represented by an advocate in Khartoum

Now the law governing the subject is provided for in Civil Justice Ordinance 1929, S. 48, and Explanation is mentioned therein,

But to decide whether a court has jurisdiction under any head of section .48 or Explanation 1, one cannot depend on a mere affidavit filed by one of the parties. The question of jurisdiction is a preliminary issue in the case. Both parties must be given a chance to produce their evidence and submissions. Unless this is done, no court can come to a proper conclusion.

It may be that the court might come to the conclusion that there is a presumption in law in favour of the plaintiff-respondent. But in this case how can the court come to such conclusion while the contract of hire purchase itself was not produced?

And as regards representation of a party by an advocate in court, needless to say this is in no way a test to decide the place of jurisdiction.

In the result the said order of the learned judge is set aside and the case is remitted back to him:

(a) to hear evidence of both parties and their submissions on the issue of jurisdiction; and

(b) to come to a proper conclusion based on the facts proved and the law concerned.