Principles

·  Contract—Compensation for theft—Notes made and given direct to victim resulting in premature release are enforceable

If a thief of gold, sentenced to imprisonment for one year and a £S.300 fine or two years in default, the fine to go to A from whom the gold was stolen, writes notes to A for part of that amount which A accepts as full compensation. the subsequent premature release of the thief, whether legal or illegal, is immaterial to the determination of the legality of the notes, and the notes are enforceable.

Judgment

      Advocates: Abdel Wahab El Khidir….for plaintiff-applicant

      Babiker Awadalla J. May 18, 1964: — May 12, 1959, respondent Awad Adam broke into the house of applicant in Omdurman and stole gold valued at about £S.332.5000m/ms He was arrested, prosecuted and on July 15 1959, sentenced by a minor court to imprisonment for one year and £S.300 fine or two years in default. There was an order by the court that should respondent pay the fine or any part thereof the amount so paid should go to applicant by way of compensation.

      On May 28, 1961, and while respondent was still in prison, he gave to applicant eight promissory notes each for £S.10, the dates of maturity of which extended from July 1, 1961, to February 1, 1962.

      On September 3, 1961, applicant submitted to the honourable judge of the High Court, Khartoum an application stating that he had been paid his compensation and requesting the release of respondent accordingly That application was withdrawn on October 1, 1961, because the Honourable Chief Justice had already by that date ordered the release of respondent on the ground that applicant had given up his claim to compensation. The order of the honourable Chief Justice appears as an endorsement to the sentence sheet.

The present suit was instituted on December 18, 1961, for enforcement of the above securities. The defence was that applicant had, by his own consent, abandoned his right to compensation or, alternatively, that the notes are not backed by any consideration. Further oral statements were made from which it appeared that applicant had also received in cash a sum of £S.20 and respondent contended that the said amount was paid by way of full and final settlement of all claims on the securities. Applicant on the other hand claimed that the sum of £S.20 received in cash was part of the compensation agreed to be paid to him by respondent. Issues were accordingly framed. Applicant supported his claim by independent evidence but respondent adduced no evidence to show that there was any new agreement under which the claim for the value of the notes was given up by applicant in consideration of his receiving £S.20.

      The learned District Judge found in favour of applicant on the facts, i.e., that the compensation agreed to be paid to applicant was £S.1000. He also found that there was nothing wrong in the declaration of applicant to the authorities that he had received his compensation because in fact the cash paid plus the promissory notes were meant to be given in complete satisfaction of applicant’s claims. He accordingly gave judgment in favour of applicant.

      Respondent applied to the honourable judge of the High Court for revision and his application was allowed. The honourable judge of the High Court, in allowing application and setting aside the judgment of the learned District Judge said:

      “After having heard both parties orally on the application and having read the record I think this application should succeed for the reason that the agreement entered into between the parties and in consequence of which the applicant was released from serving his term in default is illegal. In my opinion such person could not be released unless through actual payment into chest; to hold otherwise will flout the purpose of the penal law and will open the door wide open for improper agreements and consequent civil litigation. Even if such agreement was legal the respondent is estopped by record.”

      It is against that decision that applicant is now seeking the help of this court.

      In my view this application should be allowed. The honourable judge of the High Court seems to me to have judged the legality of the securities by a subsequent event which has nothing to do with the agreement under which the securities were given. Here we have a case of a man being deprived of valuable property worth more than £S.300 by an act of sheer theft agreeing, after the thief is duly prosecuted and convicted, to accept

only one third of that amount in complete satisfaction of his rights against the thief; on what grounds can such an agreement be said to be illegal? It contains no element whatsoever of any sordid interference with the course of criminal justice, for justice had already run its course. The mere fact that that agreement helped subsequently to bring about a premature release of respondent is of no consequence whatsoever and is absolutely immaterial for determining the legality or otherwise of the agreement.

      For the above reason, I think that this application be allowed with costs and the decree of the learned District Judge restored.

      M. A. Abu Rannat C.J. May 18, 1964:—I concur.