MAJOR COURT CONFIRMATION

SUDAN GOVERNMEN’T v. BAKHTAN BAYU BAKHTAN

AC-CP-468-1966

 Principles

·  Criminal Law—Grave and sudden provocarjon—p Code. 5. 249 (1) Test is that of reasonable man of same class as accused

“Crave and sudden provocation” under Penal Code s. 249 (1) is to be judged by the standard of the reasonable man of same c1a as accused, i.e., taken into consideration the normal life, mentality and standard of the locality of accused,

Judgment

Advocate: Abel Alier…………………………………….. For the accused

Salah E. Hassan J. (By authority of the Chief Justice). September 4, 1966: —The case has been well tried and the judgment well reasoned and beautifully written by A., Shido.P.j, President of, the Major Court. The facts which are not in dispute and are upported by ample ‘evidence

Accused brother nd two ethers were, brutally niurdeted muti and shockingly burnt by fire. This was done by the rebels. The sight of the three dead bodies was so disgustingly shocking that accused suddenly lost his reason and self-control and stabbed deceased whom he suspected, whether rightly or by mistake, to have participated in the killing of his brother and the others.

What constitutes such provocation as to bring the case within the excep tion is a question of fact, which depends upon the circumstances of each case.

The question is psychological and questions of social morality are irrelevant. The court rightly found that the sight of the lead bodies including accused’s brother was provocative in the circumi ances.

.The exception further requires that the provocation must be grave. It is said that no provocatkrn can be grave uhles it would cause a reason able man to act as the accused, did. A man of excitable teniptram quick t anger and easily offended cannot claim and benefit of his exception by virtue of his psychological defects. The Indian cases followed b the Sndan courts suggest that the reasonable man in this context, must be a man of the same class as the accused and thç court must consider the general standard of self-control in that class’; as well a. its i arid feelin A case in point is Sudan Government v. El Baleila Balla Baleila and others (1958) S.L.J.R. 12, where some Arabs were driving their cattle over a railway line when a train came round a curve and ran into them, killing twenty animals and injuring B, a relative of A, a young man of twenty, helping to drive the cattle, which he would naturally regard as the main item in the family’s wealth. The other railway servants ran away but the driver hid itt a compartment until pulled out by. A and others and speared to death. It was held that in considering the gr of the provocation, the real test was whether the ordinary Arab of A’s status would have been provoked to act as A did and the answer must be in the affirmative.

In this case judging upon the standard of the reasonable, man taking into account the normal life, mentality and standards of the locality of accused the gravity of the provocation is unquestionable Th fact ot seeing his brothçr’s dead body brutally cut and wounde and severely burnt by fire taking into consideratton that this v. as done by the rebels whose repeated acts of aggression and violence in the locality must have created a reservofr of ac provocation in the breas and, feelings of ever law-abiding citizen indeed the accused was subjected to the utmost degree of provocation that human imagination can foresee.

I therefore confirm the findings of guilty under Penal Code, s. 253, but I have decided to reduce the sentence to imprisonment for two years only taking into consideration the state of security in the south and the repeated incidents of cruel aggression carried on by the rebels and last but not least the seventy of the provocation in this case.

(COURT OF APPEAL)*

ABDO RABO IBRAHIM v. KHATMI ABDOUN

AC-REV-27-19ó6

Civil Procedure— Appointment of a receiver—Civil Justice Ordinance. s. i is discretionary for the court to appoint a receiver from the circumstances of the case

Civil Procedure—Removal of a receiver—Civil Justice Ordinance, . 146—Same court can remove a receiver appointed by it and appoint another one in his place

i. To appoint a receiver under Civil Justice Ordinance. s. 146, the court has judicial discretion to do so according to the circumstances of the case; even though without initiation of any party to the suit.

ii. Same court, which appointed a receiver, can revoke such appointment of a receiver and replace him by another one when the receiver fails to comply with the order of the court or has done an act of bad faith.

Advocate: Ibrahim Ahmed lbrahim for applicant

El Fatih Awouda 1. September 5, 1966: —This is an application for revision from the order of the learned Province Judge Attieg, summarily dismissing an application to him to revise the decision of the court below that it, after having appointed a receiver ex parte, can on hearing an objection from the other party to such appointment, cancel the appoint ment or revoke the powers of a receiver appointed by it and replace him by another receiver.

Applicant instituted CS-1445-1965 in Khartoum District Court claiming dissolution of a partnership in respect of a public service lorry and taking of accounts. It seems that at the time of institution of the suit the lorry was in the custody and under the management of respondent. Before the date fixed for respondent (defendant) to appear and answer, applicant by his advocate applied to the court to appoint a receiver of the bus pending final adjudication of the claim. Applicant was made to take an oath to substantiate his contention that appointment of a receiver was necessary for hotter custody or management of the lorry, the subject of partnership. Consequently the court issued an order appointing a certain Ali Momhamed Stti a receiver under Civil Justice Ordinance, s. 146, pending final determination of the suit. Respondent who was not present at the time, applied to the court to have the order appointing the receiver annulled on the ground that he was not given the opportunity of being heard on the matter. The learned District Judge resolved that respondent should be given such opportunity and the court can, if the objection is accepted, annul the appointment of a receiver.

Before us the learned advocate for applicant argued that once the court has made an order appointing a receiver under section 146 that appointment is final as far as the court making it is concerned and that the only way of setting aside that order is by way of revision.

Civil Justice Ordinance, s. 146, referred to runs as follows:

“Whenever it appears to the court to be necessary for the realisa tion, preservation or better custody or management of any property movable or immovable, the subject of a suit or under attachment, the court may by order appoint a receiver of such property and may grant him such fee or commission, and entrust him with such powers and subject him to such conditions as the court thinks fit.”

From the wording of this section it becomes quite evident that appointment of a receiver is a discretionary power of the court and not a right of the parties. It can adopt that measure without the initiation of any party. But that power being discretionary it should be exer cised judicially. The words “Whenever it appears to the court to be necessary” denote that the court, being a court of justice, should, before taking a decision whether to appoint a receiver, satisfy itself that such a measure is in all the circumstances necessary inasmuch as appointment of a receiver is a serious interference with the possession of the defendant. and for that very reason justice requires that he should be heard on the matter before resolving to appoint one. But this does not mean that the court cannot act without hearing him. Circumstances do arise where the need for appointment of a receiver becomes so eminent that an urgent appointment becomes necessary. In such cases the court may exercise the discretion after satisfying itself whether by affidavit or otherwise that such an appointment is necessary.

If a party alleges that the discretion was wrongly exercised then the only way to set aside the order consequent thereupon is not by way of application to the same court that made the order but by way of revision.

Can the same court, which appointed a receiver whether on hearing the defendant or without hearing him revoke the appointment of a receiver and replace him by another receiver? Both our Ordinance and the Indian Code are silent as to that. II Mulla, Code of Civil Procedure, 1 (12th ed.; 1953), says:

Removal of a receiver—A receiver should not be allowed to con tinue in office if he fails to comply with the order of the court to submit his accounts. Applications for removal shouldbe made to the court whith appointed him.”

A receiver is an officer of the court that appoints him. It vests him with powers and subjects him to certain conditions for the purpose of realising, preserving or for better custody of property. If he fails to perform the duties assigned to him or if his character is being assailed, I do not see why the same court that has appointed him cannot itself remove him and appoint another officer in his place.

Respondents say that they have nothing against the person already appointed as a receiver.

In the result this application is allowed with costs.

Osman El Tayeb J. September 5, 1966: —I agree. The appointment of a receiver under Civil Justice Ordinance, S. 146, is a matter requiring the court to exercise its judicial discretion on the material before it. In the exercise of such discretion, the court has to satisfy itself, by any evidence, that it is necessary in the circumstances of the matter, that .a receiver shall have tq be appointed. Having done so, the court cannot, at the instance qf the other party, because he was not heard to contra dict the necessity for the appointment of the receiver, open the matter with a view to cancel its order of appointment of the receiver. This can only be done by an application for revision to a superior court on the ground that the court appointing the receiver had exercised its judicial discretion wrongly.

I think there is no dispute on the point that the court appointing a receiver can on the application of any one qf the two parties, revoke his appointment, if it is satisfied that the receiver has done an act of bad faith, or an act contrary to the interests f the parties or generally committed breach of any of the terms of his appointment.

This revision is allowed and the order of District Judge, Khartoum, dated July 14, 1965, is hereby set aside with costs.