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 Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو (Re: الطيب شيقوق)
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اتفرجوا هذا كله كتب عن قضية (حفرة) سقط عليها شخص وكسرت رجله وطالب البلدية بالتعويض لاهمالها في اضاءة الطريق .
KHARTOUM MUNICIPAL COUNCIL v. COTRAN
A STUDY IN JUDICIAL TECHNIQUES
It is sometimes said of receptions of English law that the principles of the common law should be received without the artificial qualifications and technicalities that have eroded these principles.1 This doctrine is somewhat uncertain in its application where the Courts are one of the main agents of reception. Does Lord Atkin’s famous “neighbour” principle stand without Candler v. Crane Christmas?2 Or does Candler’s case survive, but without the exception suggested by Sharp v. Avery?3 Is defamation imported without the distinction between libel and slander?4 Or is the distinction one of principle, but not the exceptions to the rule that slander is actionable only on proof of special damage? Or do these exceptions survive, but not the probable English rule that there is a closed class of diseases the slanderous imputation of which is actionable per se? Paradoxically this doctrine may sometimes lead to the result that where English law is settled down to minute details its application abroad may be fraught with uncertainty, because the details that make for certainty may rank as artificial qualifications and technicalities. Conversely the doctrine “we are guided, not bound by English law”5 can be a powerful weapon for cutting a straight clear path through a tangled undergrowth of seemingly irreconcilable decisions
A closely related problem concerns the use of legal history. It is only natural for a Sudanese to ask: “Why should the fact that an Englishman
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1 e.g. Record of proceedings of London Conference on the Future of Law in Africa, p. 40. The Conference recommended that as regards Contracts and Torts where the indigenous law had not evolved rules adequate to modern conditions the general law should as a rule follow the general principles of English law on the matter “but without the refinements and technicalities peculiar to it” (Torts) but without some of the refinements and technicalities peculiar to it” (Contract). See also, Bennett J. in Manios v. Boxall & Co. AC/APP/14/1936 where s. 4 of the Sale of Goods Act 1893 was rejected as an “artificial qualification”. See also, Allott, Essays in African Law,p.25.
2 (1951) 2 K.B. 164.
3 (1938) 4 All E.R. 85, suggesting that there may be liability for negligent misstatements causing physical damage. Cf. Smith v. Harris (1939) 3 All E.R. 960; Old Gates v. Toplis (1939) All E.R. 209.
4 In the Sudan libel and slander are distinguished: Muckle v. Sudan Light and Power. Digest 53—54, p. 55. A more technical and artificial decision it is hard to imagine. But the Courts of India and Aden have rejected the distinction. See Knox-Mawer in (1956) 5 Int. and Comp. L. Q. 282. Ratanlal and Thakore, The English and Indian Law of Torts (16th ed.), Chap. xiii.
5 Owen C.J. in Heirs of Ibrahim Khalil v. Hassan Abdel Moneim (AC/6/1926)
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decided a point one way in 1283 be a good reason for a Sudanese judge to follow suit in 1959?”. And it is not surprising that Sudanese law students rarely show even the slightest interest in English Legal History. Yet it is almost too trite to repeat that no legal system can be understood divorced from its history and the historical method is often the best way of showing not only why some rule is good, but why some other rule is bad or unsuitable for export.6
The lengthy judgment of Mudawi J. in Khartoum Municipal Council v. Cotran7 nicely illustrates the different situation in which a Sudanese Judge finds himself compared with his English counterpart and the different techniques which are available to him. The facts of the case as found by the Court of first instance were briefly as follows: The plaintiff a District Judge arrived in 47th Avenue one evening after dark with some relatives to attend a party given at the Iraqi Embassy. Because of the traffic they were obliged to park some 150 yards from their destination. In attempting to take a short cut the plaintiff fell into the defendants’ open drain, which was between 41/4 and 5 metres from the side of the road and severely damaged his left foot. The learned Judge of the High Court, Khartoum (Soni J.) found as facts that the drain had been dug in exercise of statutory powers by the Municipal Council in 1952 after the road had come into existence and that the defendant had failed to show that any warning of the existence of the drain had been given in the form of lights or white washing of the edges of the drain or the pillars adjoining it. The Judge held that the defendant was negligent and awarded £S.2,332.850m/ms as special damages and £S.500 as general damages. The defendant appealed against liability and against the assessment of general damages.
At first sight the case appears to be comparatively straightforward, but for a series of reasons it developed into what has been variously described as an “epic” “Gargantuan” “marathon” at “a Himalayan level”. In the first place, as will appear, issues of considerable public importance were involved and the Government and local authorities throughout the Sudan awaited the result with trepidation. It was no doubt because of this that the Attorney-General raised seventeen different lines of argument in his written submission to the Court of Appeal and he was opposed on nearly every point by his predecessor in office, who was counsel for the plaintiff.
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6 Cf. Maitland (Collected Papers III, 486—487): “For myself, I happen to think that legal history is a fascinating matter for study. It is pleasant, and I even believe that lt is profitable, to trace the origins of legal rules in the social and economic conditions of a bygone age. But anyone who really possesses what has been called the historic sense must, so it seems to me, dislike to see a rule or an idea unfitly surviving in a changed environment. An anachronism should offend not only his reason, but his taste”. Contrast Holmes: “Ignorance is the best of Law reformers”. See also the judgment of Lord Radcliffe in Patience Kasumu v. Gbadamosi Baba-Egbe (1956) A.C.536
7 (1958) S.L.J.R. 85.
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S.L.J.R.—9
This hard-fought battle between two of the ablest lawyers in the country must have been almost unprecedented in Sudanese legal history and the learned Judge of the Court of Appeal, acknowledging the heights which counsel had reached, felt it necessary to deal in detail with nearly all of the points raised in argument. Matters are further complicated because there is some doubt as to the historical accuracy of the facts as found by the High Court, for it appears that the drain in question was probably dug by the Public Works Department for the Government before I952 and was handed over to the Municipal Council several years after the drain came into existence. If this is true it in no way affects the authority of the decision of the Court of Appeal in the Cotran case,8 but since questions of liability for “inherited” drains may arise where councils have lately come into being, it is relevant to discuss these issues here. This involves the examination of some of the more confused parts of the English law of torts in relation to omissions, public nuisance and the defence of statutory authority.
Fundamentally the whole case centred on an issue of policy raised by a conflict between public and private interests. The Khartoum Municipal Council is a body that provides considerable public services on a tight budget. At the time of the accident the annual budget of the Council was under £S.500.000 .9 Recurrent expenditure on all drains is about 2 per cent. of all annual recurrent expenditure; in recent years capital expenditure on drains has been on average about 25 per cent. of annual capital expenditure, but this is unlikely to be the case for long. It was estimated that the approximate cost of covering all open drains in Khartoum existing at the time of the trial would have been roughly £S.2 million, four times the annual revenue of the Council. The cost of covering the drain in 47th Avenue (which is approximately a mile long) was estimated as £S.30,000 in I954 and costs have risen since then. Yet covering such drains is probably the only effective way of making them really safe. The cost of less effective methods such as raising the edges and painting them white would be “substantial”.10 All unbudgeted items, such as damages and costs incurred from litigation, have to be paid out of the budget surplus, which at the time of the accident was £S.42,000 and is steadily diminishing as revenue has not increased at the same rate as expansion of services. The case is of great public importance in the Sudan, for if insufficient concession were made to public authorities by the law with regard to liability in situations such as
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8 The ratio decidendi of a case is based on the material facts as found by the Court irrespective of the historical accuracy of these facts. It may well be that the English law of negligence is a monument to a mythical snail, which never in fact existed. But see Heuston, 20 M.L.R. I, 2.
9 I am indebted for these and the following figures to the Town Clerk of Khartoum El Sayed Hassan Gubara.
10 Evidence given at the trial.
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this, the capacity of these bodies to expand their services or even to continue existing ones in a satisfactory manner would be threatened. In fact accidents similar to Judge Cotran’s are comparatively common. Evidence was produced at the trial to show that several accidents had previously occurred in the 47th Avenue drain alone, and there are 200 kilometers of rain-water drains in Khartoum. Similar drains exist in towns throughout the Sudan. The fact that more actions have not been brought against the Council is another example of the reluctance hitherto shown by Sudanese to claim their full rights as far as the law of torts is concerned. Probably this factor as much as any other has prevented the problem from becoming even more urgent.
From the above figures it is clear that the Council with its existing financial resources cannot afford to provide safe drains. If some degree of legal immunity were not granted to it, public services of many kinds might be impaired. On the other hand the plaintiff in the Cotran case deserved great sympathy; furthermore it would be impolitic if the law did not exercise some check over the use or abuse of their powers by public authorities, particularly when they are in their formative stage. Such conflicts have to be resolved anew by every legal system in every generation. Soni J. in his judgment quoted with approval a dictum from an American case, Bloomquist v. La Grande 11: “If the city cannot command the funds for the present remedy of defects in its streets, it must at least temporarily, go out of the street business and close its doors, so to speak. It cannot continue in the business as a bankrupt to the hurt of the people who are invited to travel on its public ways and at the same time evade responsibility”. Even English law, which in the eyes of many is over-sympathetic to the individual, has never discussed public authorities in terms so unashamedly couched in the language of private enterprise. It is unlikely that such an attitude would obtain much sympathy in the Sudan. On the other hand critics, such as Professor Friedmann,12 attack the English rules of statutory interpretation which raise a strong presumption against encroachment on private rights. These rules, it is claimed, are an archaic legacy of the age of laissez-faire, unsuited to an age of extended state responsibility. In an interesting attack on Metropolitan Asylum District v. Hill,13 which case was quoted with approval by Mudawi J. in the Court of Appeal, Friedmann says: In short, the rule of Hill’s case needs re-stating. The construction of a statutory power must be determined neither by the form of the power nor by any general presumption that private rights should not be interfered with, but by a balance of the
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11 251 Pac. 252, 254.
12 In Law and Social Change in Contemporary Britain (1951) pp.173-175
13 (1881) 6 A.C. 193 Hill’s case is usually cited as authority for the distinction between “absolute” and “conditional” authority with regard to power to do things which would normally constitute an infringement of the rights of others.
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interests involved. A power clearly conferred in the public interest, such as the authority to build air-raid shelters or tank traps, must take precedence over private rights. But a power conf erred on a local authority’ to rim a bus service, should prima facie be construed differently. It is not necessary to enter into dubious economic theory or political philosophy by saying that the running of transport services is a matter of private enterprise. The borderlines between public and private enterprise are now extremely fluid, and the sphere of generally accepted State functions has vastly expanded, as compared with the period when Hill’s case was decided.” This approach to the problem is more in keeping with present- day Sudanese attitudes, but Hill’s case was one of the main authorities relied on by the Court of Appeal in Khartoum Municipal Council v. Cotran. In fact although Friedmann and Mudawi J. appear to disagree about the desirability of the rule in that case, the disagreement is not necessarily about social policy, but about the appropriate legal head under which the public interest could be taken into consideration.
There are several possible legal techniques for dealing with a problem such as this. In the first place the legislature (or its delegate) can expressly define the extent and limits of liability in relation to the exercise of the powers it confers. It still remains a mystery to judges and academic critics alike why legislative draftsmen are so reluctant to do this. There is no express provision concerning liability in the Local Government Ordinance 1951, nor in the warrant of the Khartoum Municipal Council.14 Thus the responsibility for determining the extent of liability is left to the Courts and the common law. In England the Courts have not found the job an easy one, as is illustrated by the confused jumble of cases that centre on the defence of statutory authority.
A judge faced with this type of problem could allow policy considerations to influence him under one of the following #########:
(i) questions concerning the existence of tortious liability, whether the duty be strict or just to take reasonable care.
In the passage quoted above Friedmann seems to suggest that the weighing of individual rights against the public interest should take place under this head. In English law liability has at times been curtailed by the defence of statutory authority and the rule that “a local authority is liable for misfeasance, but not for non-feasance”15 in the exercise of statutory powers. It is submitted that many of the cases in which local authorities have been exempted from liability can only be explained if it is recognized
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14 S 9 of the warrant enumerates the powers of the Council. This is done merely by listing those sections of the First Schedule of the Local Government ordinance which apply to the Council. The warrant is in Arabic, the Ordinance is in English.
15 Scrutton L.J., Hesketh v. Birmingham Corp. (1942) 1 K.B. at 271, doubted by Denning L.J. in Pride of Derby v. British Celanese (1953) Ch. at 188.
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that policy considerations influenced the application of these two doctrines.16
(ii) questions concerning the standard of care, once a tortious duty has been established.
For instance the confinement of a statutory power might be interpreted to make lack of reasonable care a necessary element in what is normally a tort of strict liability. Furthermore the public interest may be considered as part of the circumstances in the concept of “reasonable care in the circumstances “. This was in fact the main technique employed by Mudawi J. in the Cotran case to allow the financial situation of the Council to be taken into account.
(iii) questions concerning the reduction of damages, for instance by the doctrine of contributory negligence or by allowing the financial situation of the defendant to be taken into account in mitigation of damages.
It is a fundamental principle of English law that the defendant’s ability to pay should not be considered in assessing damages and it would be equally inappropriate if similar considerations should influence a finding of contributory negligence. However the question whether the plaintiff was contributorily negligent in a particular case is a question of fact, not law,17 as is the application of the rules concerning assessment of damages,18 and it cannot be denied that in practice considerations which are not legally relevant have on occasion influenced such findings of fact. In the Cotran case the finding of contributory negligence has been thought by some to be rather harsh, but it would be hard to substantiate an assertion that the Judge was here motivated by a desire to find some means of reducing the amount of damages. Even if this were the case it could hardly be called a “legal technique”, except perhaps by an extreme realist. Accordingly it is the first two ######### which will need further consideration. However, as this article is concerned as much with an analysis of the judicial techniques employed as with the substantive issues in the Cotran case it will be convenient hereafter to follow the order of the judgment in dealing with the various points to be discussed.
After stating the facts at considerable length the learned Judge dealt with some preliminary points raised by counsel. The Attorney-General had argued, relying primarily on Hanscombe v. Bedfordshire,19 that there is a presumption that the ditch does not form part of the highway; having
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16 See Sawer. “Non-feasance Revisited”, 18 M.L.R. 541. Friedmann,
op. cit., 171—177.
17 Stapley v. Gypsum Mines (1953) A.C. 663, 681. See also, Salmond, Torts, 12th ed., 436.
18 What constitute relevant considerations is a question of law (1958) S.L.J.R. at 112, but Courts in the Sudan are not bound by any precedents in the assessment of a figure in the case before them (1958) S.L.J.R. at 113 cf. Admiralty Commissioners v. S.S. Susquehanna (1926) A.C. 655, 661. Per Lord Dunedin.
19 (1938) 1Ch. 944.
117 S.L.J.R.-9*
established this he attempted to connect it with two other propositions:
(i) that the road beside the ditch was dedicated to the public, and (ii) that generally speaking there is a common law duty to protect the lawful users of the highway from dangers and nuisances thereupon. It is difficult to see the relationship between these submissions. Even if the highway had been dedicated subject to the existence of a dangerous erection or excavation, the exemption from liability would arise even if the danger was on the highway or formed part of it. So as to this issue the question was irrelevant. However, as Mudawi J. pointed out, the doctrine should be confined to dedication of highways by private persons and should not be extended to cover public authorities. The passage in the judgment 20 dealing with this provides a good example of historical explanation being used to show the limits of a doctrine, thereby giving the Judge a good ground for rejecting it as inapplicable to the case before him. There was an additional reason for rejecting this quaint doctrine in the Cotran case, for the exemption only covers dangers existing at the time of dedication, whereas it was found as a fact that the road had come into existence as a public way prior to the construction of the drain.
With regard to the Attorney-General’s second contention, if it was intended to suggest that liability in public nuisance only exists for nuisances on the highway this is not supported by the English cases.21 There is liability for dangers adjoining the highway which substantially affect it. In Hardcastle v. South Yorkshire Ry. Pollock C.B. said22 “When an excavation is made adjoining to a public way, so that a person walking upon it might, by making a false step, or being affected with sudden giddiness, or, in the case of a horse or carriage way, might, by the sudden starting of a horse, be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences; but when the excavation is made at some distance from the way, and the person falling into it would be a trespasser upon the defendant’s land before he reached it, the case seems to us to be different . . . we think the proper and true test of legal liability is, whether the excavation be substantially adjoining the way, and it would be very dangerous if it were otherwise,— if in every case it was to be left as a fact to the jury, whether the excavation was sufficiently near the highway to be dangerous.” In this case a reservoir about I0—17 23 yards away was held not to be “substantially
20 (1958) S.L.J.R. 93—95.
21 e.g. Barnes v. Ward (1851) 9 C.B. 392; Att.-Gen. v. Roe (1915) Ch. 235. Cited by Mudawi J. at p. 93.
22 (1859) H. & N. 67, 74. 157 E.R. 761, 765.
23 Accord Casely v. Bristol Corp. (1944) 1 All E.R. I5 (feet). The reason for including dangers “substantially adjoining the highway as public nuisance is said to be that such dangers may reasonably deter people from using the way and thus the full enjoyment of it by the public is, in effect, as much impeded as in the case of an ordinary nuisance to the highway”. Halsbury (3rd ed.), vol. 19, p. 278, and references there.
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adjoining” a public footway and the relatives of the deceased, who had inadvertently wandered off the path and fallen into the reservoir, were unable to recover.
What the Attorney-General might have attempted to show was not that the ditch was not part of the highway, but that by deviating as he did the plaintiff ceased to be a user of the highway. For the duty as regards public nuisance is only owed to users of the highway and where someone deliberately leaves the highway and moves onto the adjoining land, whether as trespasser, licensee or invitee, the duty ceases. Thus in Jacobs v. L. C. C. where a pedestrian left the highway to cross a forecourt to enter a shop and was injured by tripping over a defective stop-cock, it was held that even if the stop-cock has been a public nuisance the owner of the forecourt would not have been liable to her as she was not a user of the highway. Lord Simonds said,24 after distinguishing Barnes v. Ward and Hardcastle v. South Yorkshire Ry.: “But the House was referred to no case and my researches have led me to none where a plaintiff had deliberately left the highway to go elsewhere, and, having left it and having suffered injury upon the adjoining land, had then been entitled to recover upon a claim of public nuisance in respect of which he suffered special damage.” In the Cotran case the plaintiff left the highway for two reasons, first to avoid a traffic jam on the highway itself and secondly to take a short cut because he and his companions were late for the party. The defendant might have been able to show that this deviation meant that the plaintiff had ceased to be a user of the highway and this, according to the English authorities, would have been a good defence on the issue of public nuisance. For this argument it would obviously have been necessary to show that the drain was not part of the highway, but this by itself would not have been sufficient to show that the plaintiff had ceased to be a user of the highway.25 Mudawi J., as he intended to decide the case in negligence, did not deal very fully with this issue, but his quotation from Prosser on Torts suggested that he considered the plaintiff to have retained the status of a user of the highway and he left open the question whether the drain was part of the highway or not.26
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24 (1950) A.C. 361, 377.
25 If the Attorney-General had succeeded in showing that the drain was part of the highway this might have opened up a different line of argument, if he had also shown that the drain was not dug by the defendant Council (infra). For in addition to being the Drainage Authority the Council is the Highway Authority for Khartoum. If the drain was part of the highway the special immunities attaching to highway authorities might have been claimed. See Gorringe v. The Transport Commission of Tasmania, 80 C.L.R.357 But this immunity is under attack in England and it might easily be held to be contrary to “Justice, equity and good conscience” in the Sudan.
26 This finding is supported by the evidence at the trial, but the point was not fully argued. However, one dictum of Mudawi J.’s seems misleading: “. . . the author of the danger cannot absolve himself from responsibility by proving
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I intend to suggest later that by his unorthodox approach to the Cotran case Mudawi J. has made possible a considerable simplification of the English law of nuisance as applied in the Sudan. It may even be that he has created an opportunity for the Sudanese Courts to wipe out completely public nuisance as a tortious category. The above discussion about the concept “users of the highway” has shown some of the unnecessarily technical and artificial distinctions that encumber the English tort of public nuisance and it is convenient here to show another morass into which the learned Judge might have had to plunge if he had tackled the case in an orthodox manner.
The question is whether carelessness is a necessary element of liability in cases of personal injuries resulting from public nuisance on or adjoining the highway. As regards English law both cases and writers are in conflict on the point. The general principle is well-established that in both private and public nuisance liability is strict,27 but this is subject to exceptions. The question is: are personal injuries arising from user of the highway an exception? In Bolton v. Stone,28 the plaintiff conceded that her claim in nuisance depended on proof of negligence and four of the five Judges in the House of Lords appeared to assent to this, only Lord Reid leaving the question open. However this is not a very strong authority, for the case was decided on quite separate grounds and the matter was not argued before the House. In Ware v. Garston Haulage Co.29 the defendant’s lorry and trailer had broken down on the highway; the driver and his mate switched on the rear lights and went for help. During their absence a motor-cyclist crashed into the trailer and was killed; at the time of the accident the trailer’s rear light had gone out. The lower Court held the defendants liable in negligence, but the Court of Appeal in dismissing the appeal suggested that liability existed in nuisance in these circumstances irrespective of negligence. Nine months later in Maitland v. Raisbeck 30 the Court of Appeal tried to “explain” 31 the earlier case away, but all that the later case decided was that a lorry moving along the road after dark without lights does not necessarily constitute a nuisance. Neither of these cases is a very satisfactory authority. Arguments from analogous principles are scarcely more satisfactory. It might be argued that Baron Bramwell’s famous principle in Holmes v. Mather 32 could be extended to cover
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that the drain was not part of the highway, especially as it is the fact in this case, if trespass is not put forward as a defence “. If this means that the normal test of “user of the highway” should be: “Was he trespassing on the adjoining land?”, this is clearly wrong; e.g. the plaintiff in Jacobs v. L. C. C. was a licensee vis-à-vis the defendant but was not a user of the highway.
27 Rapier v. London Tram ways Co. (1893) 2 Ch. 588.
28 (1951) A.C. 850
29 (1944) K.B. 30.
30 (1944) K.B. 689.
31 (1944) K.B. 689, 692, per Lord Greene M.R.
32 (1875) L.R. 10Ex. 261, 267.
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nuisance on the highway as well as trespass: “For the convenience of mankind in carrying on the affairs of life, people as they go along the roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid “. On the other hand the tort of public nuisance is based on the crime of public nuisance. Except for the rather thin protection afforded by section 47 of the Sudan Penal Code,33 there is nothing to suggest that some public nuisances are not strict in the sense that it would be a good defence for the accused to show that the nuisance had occurred despite reasonable care on his part. It would be an unusual, but not unprecedented, situation if the criminal law required a higher standard of conduct in this respect than the law of torts. After all there are some criminal offences for which there is no remedy in tort if injury results. This line of thinking suggests the question whether there is any need in the Sudan for a tort of public nuisance and whether the public interest is not sufficiently protected by the Penal Code and private interests by the general law of negligence.34
After dealing with two minor points the learned Judge proceeded to the defence of statutory authority; this is a topic that has caused considerable trouble to English judges and jurists because of the interplay of several slippery legal doctrines: difficulties have especially arisen from the relationships between statutory powers and statutory duties and between common law duties and statutory duties, as well as from the distinctions between absolute and conditional powers and between misfeasance and non-feasance.35 The defence had argued that there was “no liability because the digging of the drain was specifically authorized by statute”, but this contention was rejected by Mudawi J. He accepted the principle laid down in Geddis v. Proprietors of Bonn Reservoir36 that all statutory powers must be exercised reasonably and without negligence, unless the Legislature expressly provides to the contrary or unless “there is only one mode of performance and that mode is inevitably dangerous”.37 The Attorney-General had cited as having eroded this principle three cases which have created much difficulty in England, Wodehouse v. Levy,38 Lyus v. Stepney Borough Council39 and Fox v. Newcastle-on-Tyne.40 These
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33 “No ,act is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.”
34 See infra, p. 125. There are several cases in which the Sudan Courts have recognized strict liability for public nuisance, and whether these could be overruled by the Court of Appeal at some time in the future is a question that turns on the doctrine of precedent in the Sudan.
35 Cf. Friedmann, 8 M.L.R. 31.
36 (1878) App.Cas. 430.
37 Mudawi J. at p. 97.
38 (1940) 2 K.B. 561.
39 (1941)1 K.B. 134.
40 (1941) 2 K.B. 320. Greenwood v. Central Service Ltd. (1940) 3 All E.R. 389 is another case which could have been cited (facts almost identical to Wodehouse v. Levy).
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are all cases in which Local Authorities were protected by the defence of statutory authority from liability at common law for dangers to the public even in the absence of reasonable care on their part. The three decisions have been generally condemned, 41but it is interesting to compare the English and Sudanese ways of dealing with them. In England it took a fine and well-known judgment by Lord Greene M.R. in the case of Fisher v. Ruislip 42 to displace this legacy of the days of the black-out and he only achieved this by a valorous application of one of the more technical rules of the English doctrine of precedent, a rule which he himself had laid down in the previous year.43 The “black-out” cases were all decisions of the Court of Appeal and Macnaghten J.44 in the Fisher case had felt bound to follow Fox v. Newcastle Corporation.45 When the case came on appeal the Master of the Rolls called into play the rule in Young v. Bristol Aero plane Co. that where two decisions of the Court of Appeal are in conflict the Court may review the earlier decisions and select whichever it considers to be correct. He came to the conclusion that Morrison v. Sheffield Corporation 46 and Foster v. Gillingham Corporation47 were inconsistent with the Lyus, Fox and Wodehouse cases and so it was open to him to reject the three latter cases and follow the former two. On the face of it this seems a legitimate way of arriving at a desirable result, but one feels that had the desirability of the result been more controversial Lord Greene’s interpretation of the cases might have been dissented from. For although he found Foster v. Gillingham and Morrison v. Sheffield and the “black-out” cases indistinguishable and so in conflict, in the Lyus case the Morrison case was expressly distinguished, and in the Foster case it was said with reference to the Wodehouse and Fox cases that “there is an essential difference between those cases and the present one”. Further more Lord Greene used considerable ingenuity to distinguish G. C. R. v. Hewlett,48 an inconvenient decision of the House of Lords, from the facts in Fisher’s case, yet in all three “black-out” cases this decision was expressly relied on. It is beyond the comprehension of the present writer how one recognizes what is “essential” in the similarities and differences between these cases. This does not mean that Lord Greene was at fault in his judgment, which probably deserves the praise it has received; for
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41 See, e.g. discussions in 5 M.L.R. 249, 8 M.L.R. 31, 62 L.Q.R. 4
42 (1945) 2 All E.R. 458
43 For the citation for valour, see 62 L.Q.R. 4. Young v. Bristol Aeroplane Co. was decided 6 weeks after the decision of the High Court in Fisher’s case. Lord Greene delivered the judgment in Young’s case, perhaps an even more notable example of “judicial valour”. See Pollock’s famous lecture “Judicial caution and judicial valour” reprinted in Jurisprudence in Action.
44 (1944) 2 All E.R. 149(K.B.D.).
45 (1944) K.B. 718 (C.A.).
46 (1917) 2 K.B. 866.
47 (1942) I All E.R. 304.
48 (1916) 2 A.C. 511.
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this is the kind of context in which the myth of binding precedent dissolves into absurdity. It is revealing to contrast the dubious metaphysics to which Lord Greene had to resort with the clean-cutting direct frontal attack open to Mudawi j. He observed sympathetically: “However we feel that these three cases were unhappily decided and one may be tempted to remark that perhaps the sober voice of the common law was temporarily drowned by the explosions of bombs and cannon balls and that perhaps the conditions of war were the ‘inarticulate major premiss’ on which the Lord Justices based their decision”.49 And having disposed of this obstacle he concluded that a finding of lack of reasonable care on the part of the defendant would negative the defence of statutory authority.
The action in the Cotran case was framed in both negligence and nuisance, but only negligence was discussed in the judgment. The analysis started in the traditional way: “Negligence in broad lines involves a duty on the defendant to take care, a breach by the defendant of that duty and damage resulting to plaintiff from such breach. The first task of any Court is to try to find out whether in the circumstances a duty to take care exists”50 The learned Judge proceeded to discuss the concept of the duty of care at some length, explaining some of the English cases cited by counsel for the defendant; applying the test of reasonable foresight, he concluded that the defendant owed a duty of care to the plaintiff.
Several points of interest arise from this passage. First the Attorney- General had contended that “consideration of the General Public Good is a defence”, i.e. totally negatives the duty to take care. This is similar to the approach suggested by Friedmann.51 .The argument was rejected in a passage which deserves quoting at length 52: “The next point raised by the learned Attorney-General is in Attorney-General’s own words that ‘The drains are essential to the life of the whole population. Without them people will die and suffer from diseases. Their houses will be flooded. Transport and movement will be impossible owing to the pollution of the rain water. Any good-minded citizen will think that the drains system should be maintained at any rate than to refrain from them altogether because of the accompanying risks of injury to some individuals’. This is the picture drawn by the learned Attorney-General. It is undoubtedly a picture of horror drawn by a lawyer of exceptional ability and high literary taste with the intention of putting before our eyes the destruction the woes and sorrows that will overcome us if drains were not dug. But
-------------------------------------
49 At p. 102.
50 At p. 203.
51 Supra, note 12. Friedmann seems to suggest that considerations of the public good should determine whether the defence of statutory authority should succeed. The Attorney-General seems to have tried to set up a wider general principle not confined to statutory powers. But both wish to make the public interest affect the existence of a duty, rather than the standard of care.
52 At pp. 206—107.
123
nobody ever said that drains could be safely dispensed with. On the contrary our views are that drains should be dug and that they could be dug safely. It is a pity that the Municipality finds it convenient to attempt to horrify the public—to confront them with the bogy of the deluge unless they bow down and accept its negligent acts with servile submission.” This colourful language might suggest that the learned Judge was not very sympathetic to the plea of public interest, but in a subsequent passage the point of view of local authorities was put forward with equal vigour. Considering the question of the standard of care he said: “... we have taken into consideration all sorts of interests and all sorts of factors pertaining to Local Government as a system of government. We have not ignored the fact that local councils are institutions of proved efficiency and usefulness. We have taken into consideration the difficulties under which local councils are labouring, chief among them being the money difficulties, and that is why we have no intention to impose on municipalities duties in any way out of proportion with their financial standing; we have no intention to impose on them a duty to take steps unreasonable in their circumstances 53; we believe that any standard of care taken blindly from English cases will be most unfair and unrealistic, and if we fail to appreciate this fact we will be in the position of a man putting himself behind an iron curtain—we use this phrase in no political sense— closing his eyes, and putting his hands on his ears, neither hearing nor seeing the civic, economic or social realities of Sudanese life”.54 The reason why the Council was held liable was not because it had failed to exercise the amount of care required of a private person digging a drain for his own benefit, but because (the) “established facts tell us in no ambiguous or uncertain language that the Municipality did
nothing 55to bring to the notice of the public the existence of the drain”56
What exactly was the standard of care required in this case? “the municipality raised the edges of the drain and painted them white or if it put white pillars at reasonable distances at the edge of the drain or if it had some hurricane lamps just enough to indicate the existence of the drain, that might have satisfied the Court.”57 This does not give very precise guidance to councils in respect of drains slightly different from this one. Are such precautions necessary for all drains or only for “tank-traps” in unlit roads in areas inhabited by the diplomatic community? Presumably what is required of a drain in Sharia el Gamhuria is not necessarily the same for one in 10th Street? One can sympathize if municipal officials do
-------------------------
53 Italics inserted. Cf. Chicago, B. and Q. R. Co. v. Krayenbuhl, 65 Neb. 889. 91
N.W. 880
54 At p. 107.
55 Italics inserted.
56 At p. 107.
57 At pp. 107-108
124
not get much comfort or guidance from the Cotran case, but the fault is that not of the Judge, but of that flexible but unpredictable concept “reasonable care in the circumstances”, a concept embedded in one principle of English law which is almost entirely free from artificial qualifications and technicalities.
If Mudawi J.’s analysis of the standard of care was refreshingly unorthodox, no less so by modern standards was his decision to base liability on the tort of negligence. The facts indicate a standard situation of public nuisance, and all the cases discussed with reference to statutory immunity were framed in nuisance. Haisbury goes so far as to say that “(there) appears to be no reported case in which the exercise of statutory power has given rise to liability purely in negligence”.58 In Borough of Bathurst v. Macpherson59 although the declaration was framed in negligence the Privy Council held the defendants liable in nuisance. But it is submitted that there is no real reason why personal injuries resulting from dangers on or adjoining the highway should not be dealt with under the tort of negligence. On the contrary it is probable that historically speaking this is the correct way of treating such cases and there are certainly definite advantages to be gained from this approach. Professor Newark, in a deservedly well-known article,60 has shown that the early English cases of personal injuries caused by obstructions or dangers on the highway were all actions on the case, and an examination of the manner of the plaintiffs’ declaring makes it plain that the lawyers of the time conceived of them as actions for negligence. Furthermore, the cases were fought in Court on the footing of negligence and juries were instructed in terms of negligence. In one only of the early cases did a Judge use the word ‘nuisance’, and then merely incidentally”.61 About 1840, almost by accident, cases concerning cellar-flaps, debris on the highway, etc., were dealt with under the ambiguous term “nuisance” and this has led to uncertainty and perplexity, arising mainly out of the blurring of the line between private and public “nuisance”. Is there strict liability in public nuisance? Is reasonable care ever a necessary element of liability in private nuisance? Can damages be awarded for personal injuries arising out of a private nuisance? These problems which have long puzzled students and lawyers arise from the fusion and confusion of private
--------------------------
58 Haisbury, vol. 28, p. 6, note (m).
59 (1879) 4 App.Cas. 256. Negligent failure to repair drain resulting in danger in the highway. The action in East Suffolk Catchment Board v. Kent (1941) A.C. 74 was in negligence, but the plaintiff was unsuccessful. (See infra.)
60 “The Boundaries of Nuisance”, 65 L.Q.R. 480.
61 Ibid. 484—485. Footnotes omitted. The principal early cases cited by Newark
are: Fineux v. Hovenden (1598) Cro.Eliz. 664; Hart v. Bassett (1681) T.Jones 156
Paine v. Partridge (1692) 3 Mod. 289; Iveson v. Moore (1699) 1Ld.Raym. 486;
Chichester v. Lethbridge (1738) Willes 71; Hubert v. Groves (1794) Esp. 148;
Rose v. Miles (1815) 4 M. & S. 101; Greasly v. Codling (1824) 2 Bing. 263.
125
“nuisance “, a tort of strict liability concerned with interference with enjoyment of rights over land, and public “nuisance “, a bundle of diverse unlawful interferences with interests, which includes the breach of a duty to use reasonable care (no higher) to prevent damage being caused to users of the highway or their chattels by dangers maintained on or adjoining the highway. If the Cotran case is interpreted in future as having made this kind of “public nuisance” in effect a part of the tort of negligence, Mudawi J. will have made an important contribution to the Sudanese law of torts. It is to be hoped that such an interpretation will not be impeded by the fact that the learned Judge d not deal with the issue of nuisance in his judgment although it was pleaded.
There is another relevant comment to be made on the part of the judgment dealing with the duty of care. The learned Judge quoted with approval two well-known passages from Lord Atkin’s judgment in Donoghue v. Stevenson 62 and from Lord Macmillan’s judgment in Bourhill v. Young.63. These suggest that there is a general liability for negligent “omissions” as well as negligent acts. But it is well-established in England that liability for negligent omissions is the exception, rather than the
rule,64and it is extremely unlikely that the Sudanese Courts will recognize such a wide liability. In fact these dicta are still cited in the English Courts today and too much importance should not be attached to Mudawi J.’s use of them. It has been pointed out that “the critics have fallen into the error . . . of assuming that Lord Atkin was intending to formulate a complete criterion, almost like a definition in the prolegomena of a new theory of philosophy. Does not such criticism miss the real value of attempts to get at legal principle?65 On the facts as found in the Cotran case no question of omissions arose, but would it have made any difference if, as has been suggested above, the drain had not in fact been dug by the Council? 66 In these circumstances the Council would have done nothing actively to create the danger, they would have only omitted to make safe an already dangerous drain.
This is a complicated problem and to simplify the issues it is useful to look first at the position in English law if a private person was the defendant. As far as nuisance is concerned there is clear authority for the proposition that a person is liable for allowing a nuisance to continue, even though he himself did not create it. This applies to both public and
------------------------
62 (1932) A.C. 562.
63 A.C. 92.
64 See, e.g. Landon, 57 L.Q.R. 179; Wright, 19 Can. Bar Rev.465 East Suffolk Catchment Board y. Kent (1941) A.C. 74.
65 Scott L.J. in Haseldine v. Daw (1941) 2 K.B. 343. 362. See also Heuston, “Donoghue v. Stevenson in Retrospect”, 20 M.L.R.1.
66 Supra, p. 114.
126
private nuisances.67 Most of the authorities concerning continuing nuisance involved occupiers of land, but in the Cotran type of situation there would be no difficulty in holding the Municipal Council to be “occupiers” of the drain for this purpose.68 If, however, the action was framed in negligence, on the face of it there would be in these circumstances no duty of affirmative obligation, hence no liability.69
Where the defendant is a public authority instead of a private person a further consideration becomes relevant. This is the principle that public authorities are liable only for misfeasance and not for nonfeasance in the exercise of their statutory powers. In the nineteenth century the distinction between nonfeasance and misfeasance caused some difficulties in relation to “inherited” drains, and, as has been suggested above, classification into nonfeasance and misfeasance was in some instances probably determined by considerations of policy as much by the nature of the behaviour involved.70 The leading modern case concerning statutory powers and nonfeasance is East Suffolk Catchment Board v. Kent.71 The facts were that the defendant Board exercised their statutory powers under the Land Drainage Act of 1930 to repair a sea-wall which had been damaged by a spring-tide, in such a way that the plaintiff’s lands were flooded for 178 days, whereas if repairs had been carried out with reason able skill the flooding would only have lasted fourteen days. The House of Lords held that in the absence of a duty to repair the defendants were not liable. Lord Romer said: “Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that they would have suffered had they done nothing”.72 It could be argued that the situation under discussion is covered by the principle. A power to “provide drainage” (even if interpreted to include a duty or power to maintain and repair) cannot be the basis for liability for an omission to make safe a dangerous drain dug by some other body. This line of reasoning can, but does not necessarily, point to the conclusion that there would be no liability (even in non- inheritance cases) where a drain originally safe had deteriorated. This to many minds would lead to results contrary to “justice, equity and good
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67 e.g. St. Anne’s Well Brewery v. Roberts (1928) 44 T.L.R. 703; Slater v. Worthington’s Cash Stores (1914) 1 K.B. 488; Att.-Gen. v. Tod Heatley (1897) 1 Ch. 560. As regards the position of the original creator see Thomson v. Gibson (1841) 151
E.R. 845.
68 Cf. Charing Cross Electricity Supply Co. v. Hydraulic Power Co. (1914) 3 K.B.772
69 But occupiers have a duty of affirmative obligation. Infra, p. 128.
70 Supra, p. 116. Sawer, op. cit. esp.543 ff.
71 (1941) A.C. 74.
72 Op. cit. at p. 102.
127
conscience”. On the other hand it could be argued that the discretionary element in such a power is limited to a discretion whether to provide drains at all, and once the power is exercised not only must the original drain provided be safe, but it must be maintained in a safe condition.73 Failure to maintain would be misfeasance as it would be part and parcel of providing unsafe drains. This contention is not inconsistent with Lord Romer’s principle when applied to drains dug by the defendant, but it would be harder to reconcile with regard to “inherited” drains. However, there is an alternative analogy which could be suggested in favour of imposing liability on “inheritors”. It has been suggested above74 that the Municipal Council could be held to be occupiers of the drain for the purposes of liability in nuisance. It happens that one of the examples from the law of negligence (in the broad sense) of a duty of “affirmative obligation” (i.e. a positive duty to act) is the duty owed by occupiers to lawful visitors to their premises.75 The “occupier” analogy could surely be extended to impose a duty of affirmative obligation on a public authority “inheriting” a drain from a predecessor guilty of misfeasance without seriously undermining the basic principle of the immunity of public authorities in cases of non-feasance.76 In the Sudan the position is un settled, but it is clear that if the drain had been found to have been “inherited”, the Court would have had to tackle this problem.
Although the remaining issues appear more simple, there is one that requires a somewhat lengthy treatment. The discussion of the issue of contributory negligence starts with a straightforward statement of the common law principles of the defence and the change brought about by the Contributory Negligence Act of 1945. There is of course nothing remark able in a Sudanese Judge applying an English statute and it is generally agreed that the 1945 Act is more in accordance with “justice, equity and good conscience” than the common law doctrine. However, investigation shows that its application in the Cotran case is another remarkable phase in the strange history of contributory negligence in the Sudan. The account which follows is based on the cases to be found in the two published Digests (of 1915—26 and 1953—54) and in the files of collected judgments of the Court of Appeal from I926—I955.77 In so far as neither
--------------------------------
73 See McClelland v. Manchester Corp. (1912)1 K.B. 118; Sheppard v. Glossop Corp. (1921) 3 K.B.132; Gorringe v. Transport Commission, 80 C.L.R. 357.
74 p.127
75 This is true of both the common law duty of occupiers and their duty under the Occupiers’ Liability Act.
76 A neater way of achieving the same result would be simply to say that “inheriting” an existing defective drain amounts to an exercise of statutory powers—here a misfeasance in “providing” drainage. But this is difficult to reconcile with Lord Romer’s use of “exercise”
77 These files are also called “Digests”, but whereas the published Digests contain summaries of cases, the files contain judgments in full. The 1953—54 Digest contains full reports of six cases, including Habib Ghofril v. Gerald Andrew discussed infra.
128
the files for 1915—26 for the Court of Appeal nor any unpublished judgments of the High Court before 1956 were available, and since these Digests anyway do not claim to be complete, it is possible, even likely, that there may be further cases which might alter the picture. Nevertheless it is worth telling the story from the sources at present available. There is no mention of any case of contributory negligence in the Digest of Dun and Francoudi covering decisions of the Court of Appeal from 1915-26. The first relevant case in the files is the very important decision of Heirs of Ibrahim Khalil v. Ahmed Hassan Abdel Moneim Bros.,78 in which the old doctrine of common employment was rejected. The deceased had been killed by some machinery in an accident which took place during the course of his employment with the defendants. In an action for negligence brought by his dependants, the Court of Appeal gave judgment for the plaintiffs (respondents), Owen J. dissenting on a question concerning the defence of volenti non fit injuria. In discussing the issue of contributory negligence, Bell C.J. (with whom Hamilton-Grierson J. concurred) clearly thought that contributory negligence was a complete defence to such a claim, but since the deceased was found not to have been negligent, these remarks were strictly obiter. In Aziz Kfouri v. Associated British Manufacturers,79 a plea of contributory negligence was again unsuccessful and there was no indication by the Court as to what the effect of a finding of contributory negligence would have been. In Nur el Dayim el Araki v. Tirlock Singh 80 the appellant (plaintiff) had been driving along a main road when he had collided with an Army vehicle which had come out from a side road. The Court of Appeal refused to disturb the finding that the defendant had not been negligent, but added: “Even if this view is open to question the case for the appellant seems to ignore the need for caution on the part of the driver on the main road . . . his imprudence must be considered as having contributed so much to the accident as to disentitle him to damages, whether the respondent was negligent or not. There was an obligation on the appellant to drive with particular caution at this road junction and he failed in that duty”.81 This too must be treated as an obiter dictum. In 1944 a new Road Traffic Ordinance was being prepared to replace the Road Traffic Ordinance, 1940. It was suggested that inter alia an amendment to the law be made, which is now embodied in section 47 of the Road Traffic Ordinance, 1945,82 and which reads as follows:
“(1) In civil suits arising out of road accidents where damage has been caused by the fault of two or more persons the Court shall apportion the liability in the degree in which each party is found to be at fault.
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78 AC/CA/42/26.
79 AC/CA/30/29.
80 AC/APP/8/52.
81 Per Flaxman C.J.
82 In the Laws of the Sudan the date of this ordinance is given as 15.4.1942, but this is a misprint for 15.4.1945
129 S.L.R-10
(2) This section shall apply to all suits arising out of road accidents which occur after this ordinance comes into force.”
In an explanatory note on this section, signed by C. C. G. (now Sir Charles) Cummings, for the Legal Secretary, and dated 10th September 1944, it is said: “A new provision and one which would make a very important change in civil liability in traffic cases. It carries out an amendment of the common law which was strongly urged in England by a very strong Law Revision Committee under Lord Wright in 1939 and which would probably have become law before now had it not been for the war. . . . Besides working injustice there is another objection to the doctrine of contributory negligence and that is its extreme complexity; there seems to be no end to its intricacies and refinements. Compared to trying to unravel these complexities it should be an easy task for our Courts, looking at all the facts, to decide the proportion of blame that attaches to each party”83. There is nothing in the Report of Lord Wright’s Committee suggesting that apportionment should be extended only to road traffic cases. But, their eyes glued firmly to the road, the reformers of 1944 were blinded to the plight of plaintiffs injured in different situations. A month after the Road Traffic Ordinance came into force in the Sudan the Law Reform (Contributory Negligence) Act was enacted in England, providing for apportionment in general.
After the passing of the Ordinance the interesting case of Mohammed Abu Gabal v. Sudan Government84 came before the Court of Appeal. A War Department lorry driven by a servant of the Sudan Government had struck and damaged the plaintiff’s car at a road junction in Sennar under circumstances in which the servant’s negligence had contributed more to the accident than had want of care on the part of the plaintiff. The latter pleaded that he had not been negligent and in the alternative that the defendant had had the last opportunity to avoid the accident. Since the accident had occurred before the passing of the Road Traffic Ordinance, section 47 (1) did not apply. In dismissing the plaintiff’s appeal Creed C.J. said: “In the view of this court both parties were contemporaneously and actively at fault at the instant of the collision and therefore under the law existing at the time of the accident the appellant is not entitled to recover damages “. More significant is the judgment of Mavrogordato J. (as he then was) which needs to be quoted in full:
“I concur, though not without regret, accepting as I do the finding of the learned Judge of the High Court that the primary cause of the accident was that the army lorry was being driven too fast across a cross-roads in Sennar Town. I think it unfortunate that an artificial rule of law should prevent the appellant from recovering any part of the damages suffered
83 Quoted with the kind permission of the Acting Attorney-General.
84 AC/APP/3/1945
130
by him. This rule, though never in my opinion consonant with justice, equity and good conscience, and though now abrogated both in the Sudan (as regards traffic accidents) and in England, was in operation at the date of the accident, and prior o its abrogation was always recognized by this Court. In the circumstances it is of course binding on me,85 and I agree that the appeal must be dismissed.” Platt J. concurred and associated himself with these remarks.
In 1953 Watson J., in another traffic accident case, Habib Ghofril v. Gerald Andrew and Sudan Government,86 delivered an important and interesting judgment in the High Court, Khartoum. In dealing with the issue of contributory negligence he said: “It now falls to me to apportion the degrees of negligence. I have given the matter much consideration and studied the evidence with care; but the conclusion I have come to is that on the evidence I can make no fair apportionment of different degrees of liability, so I follow the accepted practice of the English Courts since the Contributory Negligence Act in applying the rules of Admiralty laid down in the Maritime Conventions Act as follows: ‘If having regard to all the circumstances of the case it is not possible to establish different degrees of fault the liability shall be apportioned equally’. I find, therefore, that plaintiff and first defendant were equally negligent”87 This is no doubt a perfectly correct way of dealing with the question of how to apportion. But the learned Judge nowhere in his judgment quoted section 47 of the Road Traffic Ordinance as authority for allowing apportionment in such cases. Nor did the learned editor of the Digest for 1953-54 the Hon. Mr. Justice Stanley-Baker, refer to this section either in his digest of the case, nor in the index. Thus, except on a very careful reading of the case, the impression given is that the authority for apportionment itself was the English Act of 1945.Since prior to the Cotran case Habib Ghofril V. Gerald Andrew was the only reported case on contributory negligence in the Sudan, it is perhaps not surprising that those who have not looked care fully have fallen into error.88 This misleading impression is fostered by two other cases: in Umberto Valice v. Sudan Light and Power,89 another traffic accident case, Lindsay C.J. apportioned the damages, but did not mention section 47 of the Road Traffic Ordinance as his authority for doing so, although this was clearly applicable. Like Watson J. he mentioned no authority at all. The Digest for 1953—54 contains another case of apportionment, Bastawi Suleiman Musa v. Mohammed Nur
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85 Italics supplied.
86 In Digest 1953-54, No. 32, pp. 47 and 84.
87 OP. cit., p. 90.
88 The present writer must confess to having misled his students to this effect when he first lectured on Torts in the University of Khartoum. But he can claim to have erred in good company.
89 AC/APP/34/54
131
Kheiri,90 but it is not at all clear from the summary whether the accident was due in part to the plaintiff’s negligence, or whether damages were being apportioned between two defendants. The former interpretation seems more likely, but since it concerned a collision between two Lorries this case was probably also covered by the Road Traffic Ordinance although there is no mention of this in the Digest.
In their written submissions before the High Court, Khartoum, in the Cotran case counsel for both sides dealt explicitly with the question whether the plaintiff’s contributory negligence is a complete defence in the Sudan. Sayed Atabani argued that since 1945 the Sudan Courts have been apportioning damages, and he referred to Habib Ghofril v. Gerald Andrew and Bastawi Suleiman’s case. Of the former he said that Watson J. “apportioned damage and applied the Law Reform (Contributory Negligence) Act, 1945”. As we have seen above, both these cases were High Court decisions concerning road accidents. The Acting Attorney-General, quoting Butterfield v. Forrester,91 did maintain that contributory negligence was a complete defence, but since he contended that “the accident to the plaintiff was entirely attributable to his own negligence” he did not press the point. Soni J. found that the plaintiff was not contributorily negligent on the facts, but he remarked obiter: “The English Act of 1945 relating to contributory negligence would be applicable in equity, justice and good conscience, and I would have had to determine the plaintiff’s share of negligence. The Act makes amendments to the English common law which are ‘essentially principles and not artificial qualifications’ to quote the language of Watson J. . . . Section 1 (1) of the English Act embodies principles of justice.”
The Cotran situation is not on the face of it covered by section 47 of the Road Traffic Ordinance.92 Since neither the learned Judge of the High Court, nor either of the learned counsel, nor Mudawi J. seems to have been aware of any of the cases in the Court of Appeal mentioned above,93 and since the Road Traffic Ordinance, if anything, suggests that there is no apportionment in non-traffic cases, we must regretfully conclude that Khartoum Municipal Council v. Cotran was decided per incuriam of authorities laying down that contributory negligence is in the Sudan a complete defence to an action for negligence (and probably nuisance).
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90 Digest, No. 6 at p. 11.
91 103 E.R. 926.
92 See infra, p. 133.
93 To the facile critic it should be pointed out that it is the duty of counsel to bring the relevant authorities to the attention of the Court and it is not the job of the Judges, who are busy men, to research on their own for relevant authorities. But since it is difficult, sometimes impossible, for advocates to have access to the files of unreported cases, the blame cannot really be imputed to them. The remedy for this situation is obvious. See Twining, “Law Reporting in the Sudan
(1959) 3 Journal of African Law, p. 176.
132
What could the Court of Appeal have done if these cases had been brought to its attention?94 It would surely have been artificial and technical in the extreme to hold that the facts constituted a “road accident” covered by section 47 The Ordinance is “an ordinance to provide for the licensing, taxation and control of road traffic” and it reflects no discredit on the distinguished plaintiff to say that it would be far-fetched to suggest that in the circumstances he constituted “traffic” within the meaning of the Ordinance, although provision is made by section 38 for “careless walking, etc.” But even if the Court of Appeal had seen fit to make this interpretation, the general question of contributory negligence in non-traffic cases would have been left open for the future.
A more plausible line, but again artificial and technical, would have been to distinguish all the previous cases. All the cases discussed above were cases concerning road traffic either before or after the enactment of the Road Traffic Ordinance, 1945 with the exception of the Heirs of Ibrahim Khalil v. Ahmed Hassan Abdel Moneim Bros., and in the latter case the remarks on contributory negligence were obiter dicta. This would be perfectly legitimate according to English canons of the practice of distinguishing, but are the artificialities and technicalities of the English doctrine of precedent and the English practices in handling cases to be imported into the Sudan?
This is in fact the crucial issue and it is one which needs to be thoroughly investigated in all its aspects at another time. In particular it is important that there should be a clear answer to the question—is the Sudan Court of Appeal bound by its own decisions? So far no firm legislative or judicial pronouncement has been forthcoming. The indications are that it is open to the Court of Appeal to overrule a single decision of its own and there are several arguments to support this view, of which the parlous state of law reporting is only one. But the situation is not necessarily the same where the Court of Appeal is faced with a series of its own decisions supporting a particular conclusion. If, as is quite possible, Mavrogordato J. knew of any decisions of the Court of Appeal, other than those discussed above, when in Mohammed Abu Gabal v. Sudan Government he said that it was “of course binding . . .” on him to follow the old rule, then this was a proposition with which many would agree. Even in those civil law countries where there is no doctrine of binding precedent the courts are reluctant to diverge from a series of decisions agreeing on a point. Indeed it would be a bold judge who, when faced with a line of
-------------------------------------------
94 I am assuming here that it is generally agreed that the old common law rule is undesirable and that the problem is to find a way of reaching this result which will not have untoward effects on other matters, especially the doctrine of precedent. But it should be pointed out that the old rule has not sufficiently outraged the sense of injustice of people in a number of American jurisdictions to have led them to abolish it.
133
S.L.J.R-10*
precedents of the Court of Appeal and the failure of the legislature, after some consideration, to alter the law completely, would choose in preference the nebulous guidance of “justice, equity and good conscience.”
If however no other cases than those already discussed were known to the Court in this case, then since these only contained obiter dicta on contributory negligence, however persuasive these dicta might be, the statement that it was “binding” on the Court to follow them cannot be construed literally. On this interpretation we have the ironic position that Mohammed Abu Gabal v. Sudan Government is itself the only actual decision of the Court of Appeal conflicting with the judgment of Mudawi J. in the Cotran case. If Mudawi J. had known of this case and had decided to overrule it, he would necessarily have had to decide a fundamental point on the doctrine of precedent in this country. But such an important matter as this should only be decided after careful consideration. It is to be taken for granted that few Sudanese would be enamoured of the argument that although the Sudan Court of Appeal may possibly be bound by a series of its own decisions, maybe even by a single one, such a series can be overridden by legislation of the British Parliament! Yet this is the strange implication to be drawn if the Cotran case is treated as an authority on contributory negligence, and is not interpreted as a decision per incuriam on this point. In view of the embarrassing situations that may soon face the courts it is respectfully submitted that legislation, modelled on the English Act of 1945 or the legislation of some other common law country, should be enacted forthwith.
It is regrettable that the remarks on contributory negligence in the Cotran case will have to be treated at least with circumspection in future, for the learned Judge’s discussion of the basis of apportionment is of some interest. The interpretation of section 1 (1)95 of the Law Reform (Contributory Negligence) Act has occasioned some difficulty in England. Is apportionment to be determined by causation 96 or blameworthiness97 or both? 98 The same question arises in relation to apportionment between joint and several tortfeasors. This involves difficult problems of analysis.99
---------------------------------
95 The relevant part reads: “Where any person suffered damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage…”
96 Smith v. Bray (1939) 56 T.L.R. 200, per Hilbery J.
97 Davies v. Swan Motor Co. (1949) 2 K.B. 291, per Bucknill L.J.
98 Ibid. at p. 326, per Denning L.J. Stapley v. Gypsum (1953) A.C. 663, 682, per Lord Reid.
99 For instance will apportionment based on “causation” lead to different results from apportionment based on blameworthiness or “fault” Hart and Honoré in Causation in the Law, 1959, pp. 208—216. CS 214—216 think that it can. They give as an example a young child being drowned in a pond: if X is sued for negligence in maintaining his pond and Y, the nursemaid, is sued for failing in breach of her
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After quoting some well-known dicta from the English cases the learned Judge “solved” the problem by making it quite insoluble, in any strict sense, by lumping together a collection of concepts which defy precise analysis: “The Courts, as one can see from the quotations above, have used freely all sorts of terms—causation, blameworthiness, fault, responsibility, just and equitable. Some of these terms hover on the verge of philosophy. But in our opinion the best way to follow is to take into account all these factors against a background of fairness, equity and justice.” An honest confession of defeat which deserves to become the classic reductio ad absurdum of judicial metaphysics
The interest aroused by the Cotran case had originally centred mainly on the size of the damages awarded to the plaintiff by the High Court. Indeed by any standards
£ 5,000 general damages in such a case appears to be unusually high. The Court of Appeal was faced with three issues in relation to assessment of damages:
(i) under what circumstances can an appellate Court disturb an award of damages made by a lower Court?
(ii) what authority, if any, do English decisions on the quantum of damages have in the Sudan?
(iii) what authority, if any, do Sudanese precedents have in this respect?
The Court appears to have had little difficulty in dealing with these questions. On the first issue, following English law, it was held that the Court is bound to intervene in two instances:
(a) if the Court below took into account matters which were legally irrelevant, or
(b) if the amount awarded was so high or low that no reasonable Court could have awarded it.
Both these conditions were found to apply to the High Court’s award. The Court of Appeal resolutely refused to be influenced by sympathy for
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duty to try to rescue the child when she could easily have done so, they may both have been guilty of “mere negligence”, but the fact that Y’s act was “more morally reprehensible” than X’s might be taken into account. However if, as the authors admit, degrees of causation (and degrees of blameworthiness) are “inescapably vague”, and if the relations between the concepts of “causation” “negligence” and “blameworthiness” (moral or legal) is both complex and vague, does it aid clarity to distinguish the tests? In the above example Hart and Honoré seem to suggest that a line of reasoning might go: X and Y are equally negligent, but Y is more to blame morally; Y should pay a greater share than X. But it is a big step in the direction of vagueness to say that X and Y are “equally negligent”. Is it any more vague to jumble all three together and base one’s decision openly on a rough reaction to the facts? This brings us to “degrees of vagueness”. Analysis bringing neither clarity nor precision, surely Mudawi’s blunt rejection of philosophy was here justified. There is also some doubt as to whether “blameworthiness” means morally to blame or whether it refers to the standard of “the reasonable man “. Pennington v. Norris (1956) 96 C.L.R. 10.
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the plaintiff’s plight as a refugee from Palestine and it was held that the effect of an injury to a foot on the calling of a lawyer was too negligible to be relevant. Furthermore, applying Denning L.J.’s vivid test: “Good gracious me—as high as that?” 100 the Court found that the sum of £ was so high that it was obliged to intervene and reduce the general damages to £ 1,500 before apportionment.
Both counsel had cited a series of English cases as guides to assessment of damages, but these were rejected as being of no authority whatsoever in the Sudan. This is one of the very rare instances where English authorities have been rejected on the grounds that English and Sudanese conditions differ, rather than because the rejected rule, doctrine or other authority is considered to be undesirable even in England. However it should be noted that counsel for the plaintiff was only able to cite one English
case 101 with similar facts where the award was higher than £5,000, and there permanent disability and diminution of earning capacity were likely. All the other English cases cited by counsel for both sides ended in considerably smaller awards. Thus even by English standards, the award of £5,000 was high. Finally the English attitude towards English awards was adopted by the Court of Appeal as regards Sudanese precedents: cases on quantum of damages are guides, but only guides, and have no binding authority.
The final sum awarded to the plaintiff, after the reduction of the general damages and the 50 per cent. apportionment of the total, was £S.I,916.425 m/ms. and costs, representing approximately one-quarter of the total of the original award. Neither party being wholly satisfied, or wholly dissatisfied, this can be said to be an eminently reasonable result.
It would be unwise to base any general conclusions about judicial techniques in the Sudan on the detailed analysis of one case, however important. Nevertheless the foregoing examination does indicate certain likely conclusions of a wider investigation. In particular it suggests that the doctrine that the common law should be received without its “artificial qualifications and technicalities” 102 seems unclear in meaning and of dubious desirability. If it is meant that the common law should provide the broad structure, but that the details should be worked out afresh in the Sudan, this is sensible with regard to real minutiae, for it is undesirable that judges should be swamped by too many authorities. But where section 4 of the Statute of Frauds,103 and the common law doctrines of common employment 104 and contributory negligence 105 are treated as
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100 McCarthy v. Coldair (1951) 2 T.L.R. at 1228. The test was originally suggested
by counsel in that case.
101 Forcum v. E. Counties Omnibus Co. (19.4.56). 1956 C.L.Y.B
102 Supra, note, 1
103 Supra, note,1
104 Heirs of Ibrahim Khalil v. Ahmed Hassan Abdel Moneim Bros., AC/CA/42/26.
105 Mohammed Abu Gabal v. Sudan Government, AC/APP/3/45, per Mavrogordato J. Supra, p. I05
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“artificial qualifications”, one begins to boggle. If it is suggested that all English authorities should only be considered at this level of generality, the present writer must respectfully dissent. Much of the greatness of the common law lies in the wealth of its detail, detail makes for certainty, and certainty is a prime demand of justice (if not of equity and good conscience) which has so far not been at a premium in the Sudan. However, the judgment of Mavrogordato J. in Mohammed Abu Gabal v. Sudan Government 106 indicates another possible interpretation of “artificial
qualifications”—“artificial” in the sense of “unnatural “, vouos rather than quois. “Unnatural” suggests “contrary to the Law of Nature” and what does Natural Law purport to be but the embodiment of Perfect Justice, Equity and Good Conscience? Interpreted thus the doctrine calling for the rejection of “artificial qualifications” adds nothing to section 9 of the Civil Justice Ordinance. As for “technicalities” (“artificial . . . technicalities”) it has been suggested elsewhere 107 that for the most part the Sudan is receiving only those parts of the common law which can be classified as “lawyers’ law” and that the main demand of the ordinary man of lawyers’ law is that it should be of the highest technical efficiency, reasonably ascertainable and reasonably certain. Lawyers’ law is technical law. “Artificial technicalities” suggests bad technique; it should not suggest that technique or technicality is bad in itself.
Lawyers are familiar with the phenomenon of a Judge relying on some minute distinction or an over-literal interpretation to bring about a desired result in a particular case. Fisher v. Ruislip is an example. The climax of The Merchant of Venice provides an archetypal example. Shylock (villain), relying on the letter of the law, is defeated by Portia (heroine) relying on an even more literal interpretation:
“Tarry a little; there is something else.
This bond doth give thee here no jot of blood;
The words expressly are ‘a pound of flesh’;
Take then thy bond, take thou thy pound of flesh;
But, in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate
Unto the state of Venice.” 108
Whether everyone’s sense of justice is satisfied by the play is another question, but there is no doubt that this illustrates the neglected idea of an “Equity of Technicality “. Of course an excessive reliance on technicality
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106 Ibid.
107 Twining, “Some Aspects of Reception” (1957) S.L.J.R. 229.
108 Merchant of Venice, Act IV, Scene 1. Compare the much more satisfactory
technique of evading an inconvenient rule used by Jesus in the story of the woman taken in adultery. St. John viii, 1—11
137
can as much defeat the ends of justice as too little adherence to the letter of the law. This is one of the perpetual dilemmas of all forms of law. The way out of the dilemma is suggested by the idea of the lawyer as craftsman. Craftsmanship is based on sound technique and every craftsman must be a good technician, but he must be something more, he must transcend technique. Transcendence is a matter which cannot be governed by rules. What is true of lawyers is also true of the laws and legal systems they operate. A legal system devoid of technical detail is vaporous, uncertain and poor; a legal system over-burdened by technicality is inhuman, petty and poor. All legal systems should aim at balancing the demands of thorough, sound, detailed technicality with the need for a spirit of vitality, imagination and wisdom.
Transcendence cannot be governed by rules. This is surely the key to the core of truth in the much-reiterated doctrine about artificial qualifications and technicalities. The doctrine should not be treated as prescribing a definite rule or principle or criterion for assessing the suitability or otherwise of this or that slice of English law, but it should be interpreted as an exhortation to the agents of a reception of English law to adopt a spirit, style and approach to their job, which transcends pedestrian technicality, even in technical matters. Taken this way there is nothing in the doctrine to discourage Sudanese judges from availing themselves of the guidance of the rich detail of English law, yet they can feel free to develop a style and tradition of their own which differs, if needs be, from that which dominates English practice today.
While studying at the University of Chicago, the author, along with other members of the class, was set an exercise which has been a source of illumination ever since. Each student was to select at random any common law jurisdiction and to take three volumes of the Law Reports for that jurisdiction from three different periods during the past 150 years. He had then to read in each volume the first 100-150 pages of judgments of the same Court, not as a lawyer would do, but rather as an historian, to ascertain to what extent a distinctive “period-style” of judging was apparent for each period.109 Obviously not much weight can be given to the findings of students working under pressure on a limited amount of material, but it is worth noting that members of the class were surprised at the great differences between the different periods and at the extent to which it was possible to generalize about the similarities of approach of
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109 The kind of questions asked were: To what extent were the judges looking beyond the immediate dispute before them to the effect of their decision on future cases? What was their attitude to and how did they handle previously decided cases, statutes and writings of jurists? Did they appear to feel free to make law? To speak in general terms? To act as if they had a fairly wide discretion? To what extent did they rely on technicalities and the letter of the law? To what extent did they overtly use such terms as “reason”, “justice”. “natural law”, the “right decision” and so on, etc. etc.?
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different judges working in the same Court at the same period. This impression is confirmed by the findings of more thorough and deeply-based studies of a similar kind.110 In the formative period of a legal system it is particularly important that judges should try to develop a tradition and style of judging appropriate to the special problems that face them. In a reception the predominating contemporary judicial style or styles of the exporting country may not be totally appropriate to the importing country, even if the bulk of the rules (and case law) is suitable. It is worth repeating here what Professor Karl Llewellyn has said about the reception of English law during the “formative era” of American law:
“Borrowing from England there was in substance and techniques; and in that respect the concept of ‘reception’ of the English common law has real meaning, But the style of the then English law was borrowed not at all, and no talk about reception may be allowed to obscure that fact.”111 Whereas in England the contemporary approach was mature, but rather technical, in America at the time it was quite different: “Directness, fluidity, vigour and a surpassing average sense of rightness are the marks. Reason is tool, method, goal.” 112
The main significance of the Cotran case is that it represents above all an attempt to face up to and solve the peculiar problems of judicial technique and style in the Sudan. Most important of all the judgment is based on a careful and accurate study of the relevant English authorities; but it also shows an awareness of the problems of receiving and adapting a foreign law and it represents a vigorous attempt to tackle them. No one can object to colourful language when it is coupled with clear thinking, and it is to be hoped that the “crisp dry air of the Sudan legal system”113
will encourage the growth of a judicial style as well-rooted, sturdy and bright as the judgment in the Cotran case. It has been said of Jurisprudence that it is the only known activity from which all contestants invariably emerge victorious; it could be said of Khartoum Municipal Council v. Cotran that it is a rare example of a case which resulted in an honorable draw between the contestants and an undoubted triumph for the Judge.114
W. L. Twining *
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110 e.g. Liewellyn, “How Appellate Courts Decide Cases”. An Address delivered before the Brandeis Lawyers’ Society at Philadelphia in 1945. The same author is at present engaged on a book on a similar theme. See also his “On the Good, the True and the Beautiful in Law”, 9 U. of Chicago L.R. 224.
111 “On the Good, the True . . .”, etc., op. cit.
112 Ibid.
113 Farran (1957) S.L.J.R. lo
114 Mr. J. W. Davies, Stall brass Law Lecturer of Brasenose College, Oxford, kindly read the major part of this article in draft and made some useful suggestions. My general debt to Professor Karl Liewellyn, my former teacher, will be obvious to all who are acquainted with his work. Needless to say all the opinions, errors and heresies herein are my sole responsibility.
* M.A., J.D., Lecturer in Private Law, University of Khartoum.
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| العنوان |
الكاتب |
Date |
| ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-02-07, 09:45 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-02-07, 09:59 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-03-07, 03:41 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-03-07, 05:30 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-03-07, 08:33 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-03-07, 08:59 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | جلال ناصر | 07-03-07, 08:58 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-03-07, 09:11 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-03-07, 09:19 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-03-07, 09:32 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | يازولyazoalيازول | 07-03-07, 09:42 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-03-07, 09:52 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-03-07, 11:39 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | حيدر حسن ميرغني | 07-04-07, 05:32 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-04-07, 06:21 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-04-07, 06:21 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-04-07, 06:25 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | حيدر حسن ميرغني | 07-04-07, 06:29 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-04-07, 06:50 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | حيدر حسن ميرغني | 07-04-07, 07:18 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | saif addawla | 07-04-07, 07:35 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-04-07, 09:13 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | طارق الأمين | 07-04-07, 09:43 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-04-07, 10:08 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-05-07, 02:55 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-05-07, 05:58 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-05-07, 08:00 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-05-07, 08:47 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | Dia | 07-05-07, 10:02 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-05-07, 10:29 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-05-07, 11:11 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | محمد على طه الملك | 07-05-07, 11:36 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-05-07, 11:49 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | محمد على طه الملك | 07-05-07, 12:34 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | محمد على طه الملك | 07-05-07, 08:51 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-06-07, 07:42 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-07-07, 06:23 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-07-07, 06:37 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | abulinah | 07-07-07, 11:37 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | على عجب | 07-07-07, 03:58 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-07-07, 04:28 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-07-07, 04:34 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-07-07, 05:31 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-08-07, 07:06 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-08-07, 09:52 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | علي عبد القادر | 07-08-07, 01:01 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | حيدر حسن ميرغني | 07-09-07, 01:39 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-09-07, 03:36 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | حيدر حسن ميرغني | 07-09-07, 05:18 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | saif addawla | 07-09-07, 07:08 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-09-07, 09:11 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-09-07, 09:21 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | abulinah | 07-09-07, 10:12 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-09-07, 10:28 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | محمد على طه الملك | 07-09-07, 12:52 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-09-07, 03:57 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-09-07, 04:09 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-09-07, 04:34 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الرشيد شلال | 07-09-07, 04:53 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-10-07, 03:31 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-10-07, 05:14 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | saif addawla | 07-10-07, 06:26 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-10-07, 07:20 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-10-07, 07:39 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-10-07, 07:59 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-10-07, 10:48 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-10-07, 10:58 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | محمد على طه الملك | 07-10-07, 11:19 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-10-07, 03:09 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | saif addawla | 07-10-07, 07:18 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-11-07, 07:24 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | saif addawla | 07-11-07, 03:23 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-12-07, 07:12 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-12-07, 07:15 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-12-07, 07:16 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-12-07, 08:43 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-13-07, 02:17 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-13-07, 03:20 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-13-07, 08:14 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-13-07, 08:18 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-14-07, 06:52 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | saif addawla | 07-14-07, 03:56 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-15-07, 06:48 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | saif addawla | 07-15-07, 07:20 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-15-07, 07:47 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-15-07, 05:56 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-16-07, 04:33 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | abulinah | 07-16-07, 07:10 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-16-07, 08:53 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-16-07, 04:31 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | Amira Osman | 07-16-07, 05:06 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | saif addawla | 07-16-07, 05:16 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | Dia | 07-16-07, 06:24 PM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-17-07, 05:43 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-17-07, 06:06 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الفاتح ميرغني | 07-17-07, 07:08 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-17-07, 11:12 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 07-18-07, 05:06 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | saif addawla | 07-18-07, 06:48 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | عمر التنى | 07-20-07, 07:48 AM |
| Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو | الطيب شيقوق | 09-18-07, 05:55 AM |
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