(COURT OF APPEAL)*

OMER MOHAMED IBRAHIM v. EL MUBARAK ABDEL GADIR

AC-REV-10-1966

 Principles

·  Civil Procedure—Frarning of issues—Civil Justice Ordinance, s. 72 (3)—Court con frame or amend the issues at any stage of the proceedings before passing a decree—Such discretionary power must be exercised without prejudice to any one of the parties

·  Civil Justice Ordinance, s. 72 (3) gives the court discretionary power to amend or frame new issues at any stage of the proceedings of the suit before passing a decree. The court must exercise such discretionary power without prejudice to any one of the parties.

Civil Procedure—Frarning of issues—Civil Justice Ordinance, s. 72 (3)—Court con frame or amend the issues at any stage of the proceedings before passing a decree—Such discretionary power must be exercised without prejudice to any one of the parties

Civil Justice Ordinance, s. 72 (3) gives the court discretionary power to amend or frame new issues at any stage of the proceedings of the suit before passing a decree. The court must exercise such discretionary power without prejudice to any one of the parties.

Judgment

Advocates: Abdalla El Hassan and Abdel Wahab Abu

Shakiema………………………………………………..for applicant

El Fitih Awouda J. September 11, 1966: —This is an application for revision from the order of the Acting Province Judge, Blue Nile, sum marily dismissing a similar application to him from the decree of District Judge, Wad Medani, dismissing applicant’s, claim for recovery of £S.949.000m/ms., £S.300.000m/ms of which was part payment of his share in the capital of a joint-venture and the balance as general damage for breach of the partnership agreement.

Applicant in his statement of claim in the court below alleged that there was between him and tespondent verbal agreement whereby they) would jointly send a consignment of- ‘dura to Awiel to be sold there’ and that profits and losses would be shared equally between them That respondent badb at th time the greement was made, a quantity of dura valued at: £S.1, 080.000m/ms. According to the terms of that agreement he paid respondenx £S.300.000m/ms. as a part price of half the and the balance was’ payable on arrivaliof the necessary railway wagons at Dindir station and that he had actuaily the £S.300.000m/ms. On arrival of the wagons he endered payment of the balance but respondent refused to accept. In his reply repondent theex partnership agreement but admitted being indebi to applicant in £S.294.000m/ms. being balance of accounts in another transaction.

The necessary issues were framed after the ckis of pleading. Applicant called his evidence on the issues as framed and closed his case. Respondent then entered upon his defence. He admitted what he denied in the stag of pleadings, i.e., he agreed with applicant to be partners in respect of the quantity of dura sent to and sold at Awiel but that he avoided the partnership agreement for failure on the part of applicant to fulfil a condition precedent, i.e., that applicant would provide the railway wagons for transportation of the dura within seven or eight days from the date of the agreement.

In his judgment the learned District Judge said :

“After having heard all the evidence it became clear to me that it would be impossible to give a fair decision unless the issues are amended

I accordingly amend the issues as follows:

Was it a condition for the partnership agreement to take effect that applicant should have provided the railway wagons within seven or eight days from the date of the agreement’

He then proceeded to decide that issue on the evidence already adduced by respondent in that connection.

Civil Justice Ordinance, s. 72 (3), by virtue of which the District Judge amended or rather framed that additional issue, reads:

“The court at any time before passing a decree may amend the issues or frame additional issues

The power to amend the issues or frame additional issues lies within the discretion of the court. That discretion should be exercised in such circumstances and in such a way, as none of tbe parties will be prejudiced thereby.

The issue framed by the learned District Judge after applicant had closed his evidence was a mixed issue of law and fact and is one that cuts at the root of the claim. Applicant had not had the opportunity of adducing evidence in rebuttal that there was such a condition precedent and whether, if there was such a condition, it was a material term of the agreement the non-performance of which gave respondent the right to avoid the agreement. The proper thing, which the learned judge ought to have done, was to give applicant an opportunity of calling evidence to rebut the evidence adduced by respondent in relation to that issue. That not being done I think that applicant was thereby prejudiced.

This application is allowed in part and the decree of the learned District Judge dismissing applicant’s claim is hereby set aside.

The suit is sent hack for rehearing in the light of this judgment.

Osman El Tayeb J. September 11, 1966: —I agree.