Equity-Laches--Suit against trustee for breach of trust-Lapse of time-Ad-
ditional factors

Limitation of Actions-Trustee--Suit for breach of trust-Lapse of time

• Court: Creed C.J., Evans R.O.L., and Cumings D.J.

Trust and Trustee-Breach of trust-Suit against trustee-s-Laches-s-Acqule-
scence

Idris EI Nur, who died in 1885 during the siege of Khartoum, had de-
posited the sum of £E.383S odd in the Khartoum Government Treasury
for safe custody. In 1886 an Egyptian Sharia court issued an lIam show-
ing that Orner Idris (then a minor) was the sole heir of Idris EI Nur, and
appointing Sayed Hussein as Orner Idris's guardian. In 1886 the Govern-
ment Treasury at Cairo paid Sayed Hussein as such guardian, the amount
of the deposit made at Khartoum. Orner Idris died in 1896, having attained
his majority. The plaintiffs, the heirs of Orner Idris, in 1901 sent a wakil
to Egypt to claim the amount of the deposit from Sayed Hussein on the
footing that he had never accounted to Orner Idris for the same. Proceed-
ings in the Egyptian court lapsed through lack of prosecution after 1907.
In 1931 Sayed Hussein died in Dongola after many years residence there.
The proceedings in the Khartoum High Court were instituted against his
heirs in 1932. No evidence that Sayed Hussein had paid or accounted for
the money to Orner Idris was tendered by the defendants. The High Court
dismissed the claim.

Held: Sectid'n 12 Prescription and Limitation Ordinance 1928 pro-
vides that lapse of time alone is not a defence to a trustee holding money
or money's worth in his capacity as such. Here, however, there were other
elements. Firstly, the fact that the plaintiffs, though fully aware of the
circumstances, failed to prosecute the claim from the lapse of the Egyptian
proceedings until after the death of Sayed Hussein in 1931 would have
made it inequitable to allow the claim. Secondly, if there were a breach of
trust, the same conduct on the plaintiffs amounted to acquiescence therein.
Addley Bourne v. Swan and Edgar Ltd. (1903) 20 R.P.C. 105, 114 quoted.
Rouchefoucauld v. Boustead [1897] 1 Ch. 196, 212 quoted.

Prescription and Limitation Ordinance 1928, s. 12.

Appeal

April 19, 1938. Creed C.J.: This is an appeal from the decree
of the High Court, Khartoum, by which the plaintiffs' claim to recover
the sum of £E.3835.870 m/rns from the estate of Sayed Hussein EI
Nur EI Khabir was dismissed.

The facts are briefly as follows: Idris EI Nur El Khabir, shortly
before his death at the siege of Khartoum in 1885, deposited the sum
of £E.3835 odd in the Government Treasury of Khartoum for safe
custody. In 1886 an Dam was issued by the Giza Mahkama Sharia
declaring that Orner Idris, a minor, was the sole heir of the deceased,
and appointing Sayed Hussein his guardian. On the strength of this
IIam, Sayed Hussein received from the Government Treasury at Cairo
the sum of £E.3835 odd which had been deposited by his half-brother,
Idris. The plaintiffs allege that this sum was never paid by Sayed

Hussein either to Orner, who died in 1896 after attaining his majority,
or to his heirs. Sayed Hussein died in Dongola, Sudan, in 1931 after
many years residence in. that province. After his death the plaintiffs
instituted the present suit claiming this sum from his estate.

The plaintiff heirs are four in number. They have admitted
before this court that in the year 1901 they personally appointed and
sent a wakil to Egypt to raise a case against Sayed Hussein to recover
this sum. In 1902 the proceedings were adjourned sine die for
reasons into which it is unnecessary for me to enter. The plaintiffs'
wakil apparently took no action on the lines indicated by the Egyptian
court. In 1905 the plantiffs appointed and sent another wakil to
Egypt, and a third in 1907. No result was achieved and the case
lapsed through lack of prosecution. It is thus clear that from the year
1901, at least, the present plaintiffs have been fully cognisant of all
the facts which they now allege as constituting the deceased's breach of
trust. These admissions which were made before this court, are of
great importance in view of the terms of the judgement of the learned
judge of the High Court, to whom no such admissions were made.

There is a finding of fact that the sum now claimed was paid to
Sayed Hussein by the Government Treasury of Cairo in 1886. At this

. distance of time it is obviously impossible to obtain direct evidence as
to whether this sum was ever paid or not to the cestui que trust on his
coming of age. It is urged that the onus of proof of payment lies on the
trustee alleging payment, or in the event of his death, on his heirs,
and that unless this onus of proof is discharged, or the defendants can
show that the plaintiffs have acquiesced in the alleged breach of trust,
judgement should be entered for the plaintiffs.

Section 12 of the Prescription and Limitation Ordinance 1928 reads
as follows:

"Notwithstanding anything herein contained no person hold-
ing money or money's worth in a fiduciary capacity on behalf
of another shall acquire any right to retain the same as against
such other by lapse of time alone, and the right. in respect thereof
shall not be extinguished as against the person for whom or for
whose benefit the same is held."

Care has been taken that the Prescription Ordinance shall not
operate in favour of trustees, and therefore it has been enacted that
lapse of time alone shall not itself bar the suit of a cestui que trust
against his trustee. It is however equally clear that if there are other

circumstances which, taken with lapse of time, make it contrary to
justice, equity and good conscience for the court to grant relief against
the trustee, it should not grant relief.

Not only is this statement of the law consonant with the letter
and the spirit of the law of the Sudan, but it is based on a principle
which is well recognised. It may be well illustrated from English cases.
In the case of Addley Bourne v. Swan and Edgar Ltd. (1903) 20
R.P.C. 105, 114 Farwell J. stated "Delay no doubt may in some cases
be sufficient to prevent an applicant from obtaining relief, but so far
as I can see the only case in which delay ought to have that effect
is when the respondent has been put to serious disadvantage by the
loss of his evidence in consequence of the lapse of time and in con-
sequence of the laches of the applicant."

Another illustration may be found in the case of Rochejoucauld v.

Boustead [1897] 1 Ch. 196, 212 in which Lindley L.J., after stating
that in the circumstances of that case "lapse of time without more"
could not bar the action of the cestui que trust, goes on to state that,
"Even where there is an express trust, lapse of time, coupled with
other circumstances which render it unjust to give the plaintiff relief
against the defendant, will induce the court to refuse the relief, al-
though no Statute of Limitations might bar his claim."

Lapse of time alone is not enough to bar his claim, but are there
other circumstances in the case which, coupled with lapse of time,
render it unjust for the court to grant relief? In my view there are.
The plaintiffs, although fully aware, according to their own admis-
sions, of all the facts which they allege as constituting the breach of
trust, allowed the suit in Egypt to lapse owning to lack of prosecution.
They waited decades until the death of Sayed Hussein before raising
their suit in the Sudan, thereby rendering it impossible for evidence
to be obtained to rebut their claim. It is clear that by their inactivity
when fully aware of the alleged breach of trust they have put the de-
fendants in such a position they are hopelessly prejudiced in defending
the suit. To grant relief in such a case is contrary not only to estab-
lished principles, but also to every dictate of equity justice and good
conscience.

So much for the application of the doctrine of laches, but I go
further. In my view, one inference only can be drawn from the
conduct of the plaintiffs in abandoning their case in Egypt, and their
failure to institute a suit in the Sudan during those decades in which