(COURT OF APPEAL)

SUPREME COMMISSION & OTHERS v. SADIG EL MAHDI & OTHERS

AC-REV-515-1968

Principles

  Civil Procedure—Right to begin—Waiver of—Civil Justice Ordinance, 5. 184 (2), Ord. VII, r. 2, or first schedule—Pleadings—Procedural mistake—Amendment of

  Constitutional Law—Strict rules of procedure to be relaxed in matters concerning interpretation and construction of the Constitution

  Review—When to ask for leave—Civil Justice Ordinance, s. 584 (2)

Where the onus of proof on some issue or issues is on one party and on another issue or issues on the other party, if plaintiff agreed not to put forward any evidence concerning the same, the defendant has the right to begin.

When interpretation and construction of the Constitution is concerned strict rules of pleadings are to be relaxed. Under such a situation there would be room for the agreement of the parties to displace such rules. Accordingly even if the right to begin was on the plaintiff and he waived by agreement this right and conferred it on the defendant who consented thereto, then the defendant is bound to begin.

A court cannot amend a procedural mistake even at the stage of pleadings.
Obiter dictum: A court once it accepts or receives an application for review under Civil Justice Ordinance, s. 184, should satisfy itself as to the existence of an error before asking for leave to review; for to hold otherwise would put the duty of looking into the merits upon the court that grants the leave and then there would be no point in granting it.
 

Advocates: Khalafalla El Rasheed for Attorney-General ……………for Applicants

                    Mahdi Sharief & M. I. Khalil ………………………for Respondents

Judgment

Abdel Magid Imam J. November 28, 1968 :—The concise headnote of the Judge of the High Court, Khartoum, in his ruling in HC-CS-72-1968, is just fit for the determination of the present application and is reproduced here as follows:

“On September 22, 1968, the parties to this suit appeared before the court by their representatives. The parties agreed to amend the admissions and issues for the purpose of disposing of calling any witnesses and to limit the case to legal arguments on final submissions. A copy of the admissions and issues as amended is attached.

“The question of the right to begin was raised between the advocates and they agreed that defendants should begin and in such agreement the court ordered that the defendants should file their submissions within four weeks as from September 22, 1968, and plaintiffs four weeks thereafter. These were to be the final submissions in this case.

“On October 12, 1968, i.e. after about two weeks, defendants put in an application contesting the right to begin and craving for an order to the plaintiffs to begin.”

The court after recording the defendant’s arguments, which included their calling on the court (a) to amend what they called a procedural mistake; or (b) to review its aforementioned order; recorded also the plaintiffs’ arguments in answer to those of the defendants and then the court proceeded to formulate two points upon which, in its Opinion, the determination of the application best rested. These points were:

1. Has this court any jurisdiction to entertain this application?

2 . Are there grounds for such entertainment?

At the outset it must be pointed out that a court cannot amend a procedural mistake even at the stage of pleadings. What it may do is to amend the issues and/or admissions; i.e. it may amend the pleadings in accordance with the rules governing the same; but it cannot amend or change these rules themselves.

Again it must be pointed out that the two points fixed by the court for the determination of this dispute were rolled up and confused, and no wonder its decision concerning its powers of review was not grasped by either party; for in effect it accepted the defendants’ application for review but rejected it upon the ground that there was no mistake to be reviewed, not because it was bad in law according to the description on it. In other plain words it said to the defendants: “Though the court has jurisdiction to accept such an application, it is not going to ask for leave to review its own order because it was a correct order.” This can clearly be seen from the court’s adjudication on the point when it said:

“'….. These reasons could either be initiated by the court itself on discovering its mistake or by either party to a suit who could be aggrieved by the decision or order to convince the court to use its powers.

“For the above reasons, I am of opinion that this court is entitled to receive the application of the defendants and entertain an appli cation for review of the orders passed by it,”—see page 4—and

“I am, therefore, of opinion that this court should not use its powers for calling for leave to review its order dated September 22, 1968.”—See page 7.

The plaintiffs went to great length to argue that the Supreme Court alone is vested with the power of review and it alone can receive apph cation in respect of errors not being clerical or the result of oversight on the records of subordinate courts; but as they did not submit a proper cross-appeal, I feel at liberty not to embark on dealing with the same.

Another point which added to the confusion is: should the court once it accepts or receives an application for review under section 184, Civil justice Ordinance or on its own motion forward the papers to the Supreme Court craving for leave to review, or should it go into the merits of the application with a view to satisfying itself that such an error exists before doing so? I again leave this question open though I cannot help stating that the better opinion should be that the court should first satisfy itself as to the existence of the error before asking for leave, for to hold other wise would put the duty of looking into the merits upon the court that grants the leave and then there would be no point in granting it.

The remaining point which calls for our consideration is whether there was a mistake in the record which needed to be corrected under Civil Justice Ordinance, s. 184 (2), In other words: who had the right to begin)

(a) Was it the defendants?; or (b) Was it the plaintiffs? And if the answer to (b) is in the affirmative, can such a right be waived by agreement?

The record of this case shows that the parties have come to an agreement in respect of their admissions and issues with a view to dispensing with calling witnesseS and, in the words of the court, limiting their case to legal argument only. We have carefully gone through the issues and satisfied ourselves that those issues involve the determination of points of law. In our law such a situation is governed by Civil Justice Ordinance, Ord. VII, r. 2, in the first schedule of which the right to begin is granted to a defendant. In English law the old rule was what was known as demurrer and at present is an objection in point of law. Ord. 25, r. 3, provides:

“If, in the opinion of the court or judge, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counterclaim or reply therein, the court or judge may thereupon dismiss the action or make such other order therein as may be just.”

See Odgers, Pleading & Practice (17th ed. 1960), p. 149. See also Bullen and Leake, Precedents of Pleadings (11th ed. 1959), pp.55-56 It is provided by Ord. 25, r. 2, that:

“Any party shall be entitled to raise by his pleadings any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the court or a judge on application of either party, the same may be set down for hearing and disposed of at any time before the trial.”

See Bullen and Leake, Precedents of Pleadings (11th ed. 1959), p. 670 to say:

“Any point of law which necessitates legal argument, as for example, the validity of a custom or a question of jurisdiction.. . etc., may be raised under this rule. . . . Where the point is going to be decisive of litigation it should be raised under this rule.”

Again though it may be true that the defendants did not admit all the material facts in this case, yet it is equally true that the plaintiffs have agreed not to put forward any evidence concerning the same or any other material facts. In such a situation the defendants also have the right to begin.

“Where both parties allege affirmative issues, or where the onus of proof on some issue or issues is on one party and on another issue or issues on the other party (as in the case before us), then if the plaintiff undertakes not to adduce evidence upon any issue, the onus of proving which is upon him, the plaintiff is entitled to begin.”

See Vol. 15, Halsbury; Laws of England (3rd ed. 1956) p. 271.

As stated above the plaintiffs did not undertake to adduce any evidence at all.

Accordingly it is clear now that the right to begin was on the defen dants. So there was no mistake calling on the court to invoke its power of review with a view to amend its order dated September 22, 1968. This is enough to dispose of the present application.

It can also be said that where the subject-matter of a party’s allegations (whether affirmative or negative) is peculiarly within the knowledge of his opponent it lies upon the latter to rebut such allegation. In this case the dissolution of the Constituent Assembly and the reasons that led to it were matters peculiarly within the knowledge of the defendants.

“Where a statute forbade an act to be done without lawful excuse, the burden of proving the excuse was held to rest on the defence.”

See Phipson, Evidence (10th ed. 1963), p.55 .

However, it can further be said that this dispute concerns a cause or matter to which advisably strict rules of pleadings should not be applied. It is a cause connected with the interpretation and construction of the constitution. The rules concerning this subject lays it down that the rules of the Civil Justice Ordinance should be applied as far as possible. See paragraph 6 (1) of Order XXV of the Rules as to Question As to Member ship of Parliament. In English law such matters are started by what is known as “Originating Summons.”

“In any division of the High Court, any person claiming to be interested under a deed, will or other written instrument may apply by originating summons for the determination of any question of con struction arising under the instrument, and for a declaration of the rights of the persons interested.” So may “any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of a statute. . . . The question to be determined must be clearly stated in the summons, itself. . . it must be a question of law, not of fact. . . . The parties generally agree on a statement of fact…."

See Odgers, Pleading & Practice (17th ed. 1960), p. 6.

It can safely be said therefore, that under such a situation where the strict rules of pleadings are relaxed, there would be room for the agreement of the parties to displace such rules. As I see it the agreement between the parties concerning the right to begin was proper. Accordingly even if the right to begin was on the plaintiff the defendants would have been bound to begin.

In the case before us the parties substantially agreed on all the facts in issue, they have consented to the issues as framed, the defendants agreed to begin, which was in law their right, agreement or no agreement. But after the lapse of two weeks they put in their unnecessary and dilatory application. Accordingly the pungent remark by the court concerning their way of conducting these proceedings was well deserved. For even if the right to begin was the plaintiffs, the plaintiffs had waived by their agreement this right and conferred it on the defendants, who consented thereto. It is most astonishing that they should go back on their word and repudiate the agreement—which could have amounted to an equit table estoppel had the right to begin been with the plaintiffs—because the plaintiffs would have then suffered an obvious detriment in not presenting their case in the best form they could—except for delaying the action, and their reasons given in this respect are otherwise inconceivable.

"It seems to me,” said Brown L. J. in Knowles v. Roberts (1888) 38 Ch. D. 263:

“that the rule that the court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleadings which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice. embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right.”

in this case the court did not dictate anything. What it did was to give effect to the parties’ agreement which was in perfect accord with the

correct rules of pleadings It was the defendant who offended against these rules.

For the above, I think this application should be dismissed with costs.

El Rayah El Amin C.J. November 29, 1968:—I concur.

M. E. Mobarak J. November 29, ‘1968:— I agree.

Mohamed Yousif Mudawi J. December 16, ‘1968:—I agree.

Galal Ali Lutfi J. December 9, 1968 :—I agree.