(COURT OF APPEAL) *

MUSTAFA  ABBASHAR v. UM EL HASSAN KHATIR

AC.REV-512-1965

Principles

·  Bailment—Contract to do work upon article and redeliver—Bailee must take reason able care to sat uard the article in his custody—Theft through bailee’s negligence entitles bailor to recover value of article stolen

In case of bailment for work to be performed on an article. bailee is bound to use reasonable care in keeping the article in safe custody. Theft through the negligence of bailee entitles the baior to recover the value of article stolen.

Judgment

Advocate: Ahmed Mukhtar Ogoul…………………………… for applicant

Hassan Abdel Rahim J. March 20,1- 966  :This is an application for revision submitted against the order passed by His Honour the Province Judge, Khartoum, vide, in which he dismissed a similar application lodged against a decree passed in favour of respondent for the sum of £S.40.380m/ms. 

Applicant is a goldsmith who was entrusted with gold ornaments for the purpose of remoulding them in consideration of payment for work and labour. On demand for delivery of the ornaments by respondent, he alleged that they were stolen. Respondent sued for the value of the ornaments and obtained a decree from Omdurman District Court. Application for revision to the Province Judge was dismissed, and this application is raised against the decision of the Province Judge.

The grounds raised for revision are:

1. The decision was against weight of evidence as applicant was not negligent in keeping the ornaments.

2.The judgment was contrary to the law of bailment.

In my opinion this application should be dismissed. Having considered the evidence thoroughly, I am of opinion that the decision of the court below was right both in fact and in law. This case is but a case of bail ment for work to be performed on the artide bailed, and the relevant law is clearly stated in Halsbury II, Laws of England (3rd ed., 1956), p. 114, to be as follows:

“A custodian for reward is bound to use due care and diligence in keeping and preserving the article entrusted to him on behalf of the bailor. The standard of care and diligence imposed in him is higher than that required of a gratuitous depositary, and must be that care and dili&ence which a careful and vigilant man would exercise in the custody of his own chattel of a similar description and character in similar circumstances.”

It was established by applicant’s own witnesses before the court of first instance that the door of the shop was not tightly closed, and that applicant kept the ornaments in a locally made safe which could easily be opened by a false key. In these circumstances the court was right to infer negligence on the part of applicant and to come to the conclusion that he failed to use that high standard of care and diligence imposed upon him by the law in his capacity as a bailee for work and labour on the articles bailed.

The obligations of a bailee for work and labour as stated by Paton, Bailment in the Common Law, p. 338, are as follows:

“(i) to execute with reasonable sidli upon the article banded to him and work agreed upon;

(2) to take all reasonable precautions to safeguard the thing which is in his custody;

(3) to re-deliver to the owner after the work upon it has been completed. But with regard to delivery, the obligation is not abso lute, for if the res perishes without fault of the bailee, it perishes to the owner—the duty of the bailee is only to take reasonable care.

Hence it is a complete defence that the res was stolen without negli gence on the part of the custodian.”

In this case applicant failed to deliver the articles on demand through his failure to take reasonable care in keeping the articles, and as such he is liable to make good the loss which was caused to the bailor by his wrongful act.

ConsequentlY the application should be dismissed.

No order as to costs.

Babiker Awodalla C.J. March 20. 1966 :—l agree.

Court: Babiker Awadalla C-f. and Hassan Abdel Rahim J.