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 Re: ظلال واشجان في مسيرة القضاء السوداني بقلم الفاتح ميرغني / طوكيو (Re: saif addawla)
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اخى الفاتح ميرغنى
لك باقة من الود والتحايا وخالص الامتنان لتنزيل اروع سابقة قضائية (نجمة)
اخي حيدر حسن ميرغنى شكرا للوصلة والمتابعة امتعك الله وايانا بمشاركة مولانا سيف الدولة حمدنا الله الذى نامل في تواجده الدائم معنا رغم علمي بحجم مشغولياته ومكوكية تحركاته .
الاخ على عبد القادر - ما اروع ان نفتح البوست ونقرا القصيدة . ما كنت احسب في بلادنا حب مستصحب بهذا العمق من الثقافة الادبية .
مولانا سيف الدولة وجودك وفكرك ويراعك جميعهاعناصر خلاقة تكاملت هنا لصناعة مؤشر يرفع من قيمة هذا البوست ( كلام بورصات لا؟)
اعزائي :
لمزيد من التشويق لما كانت عليه مسيرتنا القضائية ، اليكم وقائع وحيثيات اروع السوابق القضائية ( قضية قطران) مثّل فيها مولانا مهدى شريف النائب العام وعتباني ممثلا للادعاء وقاضيها في محكمة الموضوع هو مولانا محمد يوسف مضوى الذى اثنى على ما بذل فيها من مرافعات من قبل المحامين . اساس القضية مجرد حفرة في شارع البلدية بالخرطوم لم تكن مضاءة بواسطة سلطات البلدية ولهذا السبب سقط عليها المدعى ( الشاكى )وانكسرت رجله وقد اقام دعوى ضد البلدية( حكومة السودان) مطالبا بتعويض .
يقال ان واحد من الطلبة السودانيين اراد ان يعد رسالة الماجستير في سابقة قضائية واختار هذه القضية لما بها من موروث قانوني ضخم فقال له المراقب ال ( superviser ) ان ما كتب عن قضية قطران في قامة الهملايا وان مستر تنن بوم عميد كلية القانون بجامعة الخرطوم و الذى خلفه الترابي قد كتب عنهاكثيرا . وقد صارت هذه القضية سابقة عالمية للمسئولية التقصيرية وصارت مرجع يهتدى به في اغلب كليات الحقوق في العالم .
اليكم وقائع القضية مع خالص اعتذاري لعدم توفر الترجمة بالعربية وان تسمحوا لى ان لم تكن الاسماء التى اشرت اليها صحيحة:
(COURT OF APPEAL)•
KHARTOUM MUNICIPAL COUNCIL vs. MICHEL COTRAN
(AC-Appeal-31-1958)s
Principles
• Highways-Drain adjoining highway-Whether part of highway-Duty to users of highway.
• Statutory authority- Local Government Ordinance 1951-Discretionary powers to provide drains-Unlit, unguarded drain-Whether danger-Whether local authority under duty to give warning of danger
• Negligence-Duty to users of highway-Standard of care-Contributory negligence-Apportionment-Law Reform (Contributory Negligence) Act,1945
• Damages-Quantum of damages-Appellate court-Grounds for interference with finding of Lower Court-Irrelevant factors-Effect of injury to foot on calling a Judge or Advocate-General damages-Unreasonable award.
In the exercise of the powers granted under the Local Government Ordinance 1951 the Defendant had dug a drain between 4½ and 5 meters from the side of and unlit road in a residential area in Khartoum. The drain was uncovered, unlit and unguarded , but on the night in question there was some dim light shed on it from nearby. The Plaintiff, a District Judge, and his companions arrived in the road by car to attend a party at the Iraqi Embassy and were obliged to Leave the car about 150 yards from their destination. The Plaintiff left the road in order to avoid a traffic jam and in attempting to take a short cut fell into the drain. As a result he suffered injuries to his left foot involving a surgical operation (arthrodesis) and considerable pain and suffering. The final outcome was a stiff painless useful foot amounting to a 70 per cent, disability.
The Judge of High Court Khartoum found that the Defendant was guilty of negligence and awarded £S.332.850m/ms damages, £S. 2.332.850m/ms as special damages and £S.5.000.000m/ms damages. Defendant appealed against liability and against the assessment of general damages in case liability was established.
Held:
1. The author of a danger immediately adjoining a public highway owes a duty of care to lawful users of the highway, whether or not the danger is in law part of the highway.
2. The immunities attaching to a private owner who dedicates a highway to the public do not extend to Public Authorities acting in pursuance of statutory powers or duties.
3. An unlit, uncovered and unguarded drain 2½ meters deep immediately adjoining a highway does not constitute an insignificant danger to which the defence de minims no curate lex can apply.
4. The power given to the Council was permissive and discretionary, but there was nothing in the Ordinance or warrant to over-ride the Common Law presumption that the power when exercised should be exercised with due care. The Appellant owed a duty to users of the highway and having failed to exercise reasonable care was liable in negligence.
5. According to the principles laid down by the Law Reform (Contributory Negligence) Act 1945 the Respondent was contributory negligent to the extent of 50 per cent, and damages should be reduced by that amount.
6. The question of damages is a matter to be fixed by local considerations and English and other foreign cases should not be taken as guides. Court below except (a) where there was a mistake of law as to the factors properly to be taken into account, or (b) where the amount was such as no reasonable court would have awarded.
7. The Lower Court was wrong in taking into account the personal history of the Plaintiff in assessing damages arising from an injury Judge or Advocate was too negligible to be considered.
8. The award £S.1.500. Both general and special damages being reduced by 50 per cent., the total amount awarded to the Respondent was £S.1,916,425 m/ms.
Judgment
Appeal:
The facts are fully set out in the judgment of M.Y. Mudawi J
Advocates: The Attorney-General…for Applicant
A.M. Atabani …for Respondent
23rd March 1959. M.Y. Mudawi J. :- This is an appeal from the judgment delivered by Soni J. (28th July 1958) on the trial of an action before him in which the Respondent (and Plaintiff) Michel Cotran, a District Judge of Khartoum, claimed damages in respect of injuries arising out of his fall in a drain dug by the Appellant (and Defendant).
The facts as stated by the Court below are as follows:- “On the 2nd of May 1957 the Iraqi Embassy gave a party in Khartoum in the evening. It was timed 7.00 o’clock. The Iraqi Embassy extended its invitation among many others to the Plaintiff, his wife and daughter and to Mr. And Mrs, Tewfik Cotran. The Embassy building where the party was held is situated on the eastern side of the 47th Avenue, not far from the Gezira Road end. It is occupying House No. 68, known as kyriakos’ house. 47th Avenue runs from West to East –House No. 68 being on north side of the road. The 2nd of May 1957 was also the 2nd of the Higira month of Shawal so that even tiny slice of the new moon was hardly visible that evening and was about to set- the moonset being at 7.16 p.m. the sun had already set the evening at 6.09.p.m.
47th Avenue is an unlit road. In the middle of the road towards the northern side where Iraqi Embassy is housed there is a deep strom-water channel whose nearest edge from the Iraqi Embassy (northern) side of the road is between 4¼ and 5 metres from that side. The channel or drain is between 2¼ and 2½ metres wide. It is about 2 metres deep. It was then totally uncovered. The Avenue has an asphalted surface, the whole width of the road is divided as follows:- Along the southern side there is an unmetalled portion about 4 metres wide, then comes the asphalt portion beween 5¾ and 6 metres wide, then comes an unmetalled surface, the whole width unmetalled portion which as already said was between 4½ which as already said was between 4½ and 5 metres wide.
The Plaintiff, his wife and daughter and Mr. And Mrs. Tewfik Cotran came to attend the party, all travelling together in one car driven by Mr. Tewfik Cotran… (and reached) the vicinity about 7.45 p.m.
There are two ways of getting to the Iraqi Embassy-one from the western side and the other from the eastern side. The Plaintiff’s party came from the eastern side. They had not travelled any great distance on the 47th Avenue when they were stopped by a traffic policeman who told them that it would not be possible to park their car near the Embassy building and adivsed them to park the car nearabouts where they were and then to walk up to the Embassy. This was done. The car was left to be parked by Mr. Tewfik Cotran about 150 yards from the Embassy. The Plaintiff and Mrs. Tewfik Cotran walked ahead. After parking the car Mr. Tewfik Cotran and the other two ladies followed at a short distance behind. It is said that they walked on the asphalt on both sides of which were stationary parked cars of the guests of the Embassy. When they had walked much of the distance they noticed a traffic jam opposite the Embassy entrance- two trucks from opposite sides having come on-and the traffic police were trying to clear the jam. Seeing this jam the Plaintiff and Mrs. Tewfik, who were walking (Mrs. Tewfik being in the rear), went through the space between two stationary parked cars and had not walked more than a couple of metres when they thought it would be better to make a short cut to the Embassy entrance as they were already late. They had never been ont this road before and did not know of the existance of the drain there. They thought they were walking on solid level ground when suddenly the Plaintiff found him self lodged in the deep drain.
Dr. Bayounmi (who was among the guests) came at once and found him in agony taken out of the drain. He took the Plaintiff in his car to the hospital and kept him there for the night. From the next day to 25th May the Plaintiff remained in Khartoum in his own residence, greatly suffering and disabled, attended to for all kinds of his needs by his wife and looked after medically by Dr. Bayoumi.
A Government Medical Board advised the Plaintfif’s departure for London accompanied by his wife to be attended to the by the Sudan consultant there-Dr.Pratt. the Plaintiff reached London on the 26th May. Dr. Prat put him in charge of an orthopaedic surgeon, Mr. Broomhead. X-ray photograhps of his (Plaintiff’s) foot which had been injured by the fall were taken in Lond and Leeds an also in Khartoum. The Surgeons told the Plaintiff that his foot had been very badly damages and that his injury will be followed by painful arthritis and he was advised to have a surgical operation. while in England the Plaintiff heard of an eminent Austrian surgeon, Professor Bohler of Vienna. He decided to have his opinion also on the matter. The Plaintiff saw Professor Bohler in Young and Broomhead and also advised the operation. This operation is called arthrodesis and is a major operation. It involves doing away with immobile but the pain which arthritis was bringing on would cease. The foot would remain permanently immobile. The Plaintiff was on medical leave for 173 days after the 2nd of May. He returned to Khartoum in october. He decided to wait before he underwent the operation.
The Plaintiff has told the Court of the pain and suffering he has undergone, of his helplessness which was relieved by the attention he received from his wife and his nurse, of the pain which he still suffers from, of his very great disablity in walking, of his not being able to enjoy what social pleasures he used to have and of his great discomfort while having to do his work as a Judge.
It might be mentioned that the Plaintiff stated that ??? fell a distance of 11.60 metres from the Emabassy entrance. This is the diagonal distance as given in the Plan P.1. the distance alongside the drain to opposite the Embassy entrance is given in the Plan as 9.40 metres.
It was found as a fact that the road came into being first and it was only in 192 that the drain was dug. It is also found as a fact that at the time of the accident the drain was uncovered, unlit and and no fringes. There were also no pillars on the sides of the part of the drain where the accident took place. After the accident pillars properly painted white and evenly spaced were put in to prevent accidents to the diplomatic community who live round about in considerable numbers; and later the drain was covered to make it immune from danger.
There was some flood-lighting on the building with two searchlights-S.2 on the right, to the east as one entered on the left into the Embassy building and S.1 on the left to the west of the furthest end of the buiulding directed to the law where the party was held…There is a hedge around the Embassy where there were cloured lights. It was the western side which got most of the lighting. There were two white bulbs of only 15 watts each at the entrance gate.-one 40cms.from the gate and the other 80 comes.from the gate directed purposely towards the bridge of the culvert to shed light on the bridge and not on the drain. It is difficult to judge the extent of the lighting. There was some visiblity away from the entrance but how much is difficult to say.”
As to the extent of the injury, the pain and suffering the Court below found as follows: “While the Plaintiff was still in the Sudan before he left for England his pain was so great that he had to have sedatives given to him; he had to be lifted into the plane by a hydraulic lift. His leg was in plaster for 24 hours and since the accident he had been helpless in bed. The medical report made on Plaintiff by Mr. Young after his examination on 17th May 1957 gives the nature of the injury as a cominuted freacture of the oscalis involving the subastragloid and the oscalis cuboid joint.”
The Report which was admitted by Defendants goes on the to describe the state of the foot at the time (17th September 1957) in detail. “The left foot shows much swelling extends to some extent up the leg to just below the knee. There is a deformity of the foot, the hee itself being-broadened and the whole foot being flatter than normal. The anlke joint has about half the normal range of movement and the subastragaloid joint has only a flick of movement which is painful. The mid-trasal joint is grossly limited.” In my opinion Judge Cotran suffered a very fracture involving the mid-trasal and subastragaloid joints. This will inevitably lead to considerable permanent disability in that he will always have a limp and he will be unable to woalk on uneven ground without pain. It is probable that an arthritis of the sbastragaloid/mid-trasal joint will develop at a later date and indeed it is pretty certain that such a process has already commmenced in view of the very marked limitation of movement at both of these joints and th distortion of the joints as shown on the X-ray. This arthritis may give him sufficient pain to make it nevessary for an operation will entail arthrodesis of the mid-tarsal/subastragaloid joints. This will almost vertanly relive his pain at the cost of permanent immobility of these two joints. Mr. Young estimated the disability in the region of 70-75 per cent or higher . Mr. Broomhead of Leeds gabe nearly the same report but estimated the disablity of the foot at 65 per cent. Professor Bohler of Vienna confirmed the opinions of Messrs. Young and Broomhead in his report dated 10th October 1957 and put the disability at “75 per cent.at least.”. Mr. Tahir Abdel Rahman and Dr. Bayoumi’s statement that the Plaintiff will have “ a useful painless stiff foot.”
“The Plaintiff wil have to undergo the arthrodesis operation and as a result he will on the sick list for 4 to 6 months. Out of this period Plaintiff will have to be in a hospital and/ or a nursing home for a period of from two to three weeks-not more than three weeks.”
The Court below gave the judgment for the Plaintiff and ordered that he be paid £S. 2.332.850m/ms out of this sum were given as special damages and £S.5.000.000m/m as general damages for the shock of the injury, for physical pain at the time of the accident and afterwards, for pain present during and subsequent to the operation (which is a major operation involving the patient’s foot being in plaster for four to six months), for his inability to be as useful to himself and to others as before, to remain always somewhat dependent in many ways through small, and for the loss of the joys of life.
The Plaintiff was born in 1905 and he is only 53 years old now. He has, let us hope, plenty of years of usefulness berfore him. His contract of service with Judiciary expires in less than two years’ time. He will then have to fend himself. He may have to practise at the Bar as a lawyer in which case his ‘considerable’ permanent disability will be a handicap his social life has no doubt been affected. He can not dance. He can not easily go out- as was said in an English case- for a stroll with his favourite dog. He can not join in many social functions easily.”
The Appellant do not challenge the special damages and the appeal is directed against the general damages in case liability is established. The Court below had stated the facts of the case with neatness and lucidity and subject to the remarks mentioned below we fully agree with these findgings.
The first obeservation concerns the part dealing with the amount of light emanating from the Embassy building and shed on the place of the accident. The Court below was not very clear on this point and we do appreciate the difficulty in which it found itself owing to the conflicting evidence given on this point by men of standing on both sides. However, memories are short and innocent misrepresentation can not be excluded. This much is clear and here we quote the Court below:-
“There was some floodlighting on the building with two searchlights. S.2 on the right to the east as one entered on the left into the Embassy building and S.1 on the left to the west at the furthest end of the building directed to the lawn where there were coloured lights. It was the western side which got most of the lighting. There were two white bulbs of only 15 watts each at the Entrance Gate. There were two white bulbs of 200 watts each on the eastern side of the gate- one 40 cms.from the gate and the othere 80cms from the gate directed purposely towards the bridges of the culvert to shed light on the bridge and not on the drain.”
This passage quoted from the judgment gives a clear picture of the state of illumination in and outside the Embasssy gate. Such a number of bulbs, white and coloured, including two searchlights-albeit they were inside- two 200 watts lamps and two 15 watts lamps, all on the gate, is bound to illumine a considerable area in the locality and especially the palce of the accident which is about 10 metres from the large bulbs and the bridge, where the light was said to be concentrated.
It is a matter of common knowledge that light has the property of being easily reflected and diffused so as to illuminate areas that are not originally intended to be lit. Generally speaking, light can not be easily hardnessed and kept focussed on one object to the exclusion of all other objects. Hence even if the Embassy electrician intended to light the bridge alone he is bound, whether he likes it or not, to illumine the area reasonable close to the point where his interest lies, i.e., the bridge. We are therefore clear in our minds that there was some light shed on the place of the accident and it gave some indication as to the existence of the “tank trap” as the drain was described by Counsel for Plaintiff.
Another point concerning the facts is whether the disability of the Plaintiff affects him in his calling as a Judge or an advocate. The Court below has said that:
“ Though the Plaintiff would be affected in performing his duties as a Judge now and will be affected later, he should not be more greatly affected after the operation. But if he were to practise as a lawyer he would be more affected than if he were to continue as a Judge.”
This is what the Court below has said. From common experience and after scrutinising the reports of the various doctors heard by the Court below, we can say that if there is any effect at all on the calling of the Plaintiff it will be negligible and slight and should not worry this Court. The calling of Judges and Advocates- and we don’t say this in any emotive sense- depends largely on the tongue and the wits and if these are untouched Advocates and Judges need not be substantially handicapped.
The Court below also criticised the statement of Dr. Bayoumi that the Plaintiff will have a “stiff, painless useful foot”. We think the criticism is a little unfair. The Attorney-General has explained this term to our satisfaction. A foot can be stiff and yet it can be useful for walking.
The Court below failed to put clearly the percentage of the disability, though it quoted opinions of various doctors. We think we can strike a mean between the opinions of Mr.Young and Mr. Broomhead and put it as 70 per cent.
Having straightened out the facts of the case we now proceed to discuss the law. The legal issues on which we are goining to decide the case are as follows:-
1. Was Defendant liable in negligence?
2. If so was Plaintiff guilty of contributory negligence? And what was his share in the responsibility?
To begin with we must first dispose of some preliminary points raised by Defendant. The first is the attempt of Counsel to prove that the drain is not part of the highway, and in order to bring home this point he cited is two cases, namely, Hanscombe v. Bedfordshire County Conucil (1938) 1 Ch. 944 and Cornwell v. Metroplitan Commissiners of Sewers (1855) 10 Exch. 771. Counsel for Plaintiff in an endeavour to prove the opposite also put before us a number of cases including Attorney-General v. Roe (1915) 1 Ch. 235; Barnes v. Ward (1850) 9 C.B 392; Hadley v. Taylor. (1865) L.R. 1 C.P.53.
Most of the cases cited by both parties in this issue are in our judgment irrelevant and have no bearing on the question; and what is even more important is that the issue itself is not essential for the decision of this case. We belive the answer to the question, whether the drain is part of a highway or not, does not affect the situation either way and we must admit that we are surprised that the learned Judge of the High Court. Counsel for Plaintiff and Counsel for Defendant have spent so much time and effort on it. It is obvious that if the drain which is proved to be at least adjacent to the commonly used part of the highway is dangerous, then the author of the danger can not absolve himself from responsbility by proving that the drain was not part of the highway especially, as it the fact in this case, if trespass is not put forward as a defence.
In Barnes v. Ward where the owner of land abutting on a public footway in course of building a house on such land excavated an area which he left unfenced whereby a person in passing along the way fell into the area and was killed, it was held the owner of the land was liable, again in Attorney-General v. Roe, Sargant J. stated in the course of his judgment that “ it seems clear that there a common law obligation on the possessor of a dangerous exacavation by the side of the highway to keep it fenced whether the exacavation was or was not there before his possession began.”
Dean William Prosser, the Dean of the Faculty of Law in the University of California, sums up the gist of the law on page 429 of his classic work on Tort: -
“The status of a user of the highway has been extended to those who stray a few feet from it inadvertently or in an emergency or even intenionally for some casual purpose arising out of the travel.”
Before leaving this point we must reproduce a brilliant passage in the submissions of Counsel for Plaintiff :-
“The Defendants can not have it both ways. Eihter the drain is part of the highway in which case their argument fails, or it is not part of the highway in which case there are liable because the drain is by the side of the highway.”
This being the case we see no reason to attempt a decision on whether the drain is part of the highway or not. We leave the question open.
Counsel for Defendants also put forwards as a defence the intereseting principle in Fisher v. Prowse (1862) 121 E.R. 1258. in that case Defendant was the owner of a house adjoining a street at Deptford. The house had a cellar belonging to it; the mouth of the cellar opened into the footway of the street by a trap door which was open during the day but was closed at night by a flap which slightly projected along the footway. The cellar had existed in this condition before the Defendant had anything to do with the house and the flap had been in the state described as long as anyone could remember. The Plaintiff coming along the footway at night stumbled on the flap and sustained an injury. It was held that the Jury ought to draw that the dedication of the way of the public was with the cellar flap in it and subject to its being continued there; and therefore the Defendant was not liable as the maintenance of such an ancient cellar flap was not unlawful.
The Judges in Banc had stated the principle as follows:-
“ The law is clear that if after a highway exists any thing be made so near to it as to be dangerous to those using the highway, this will be unlawful and nuisance. But the question still remain whether an erection or excavation already existing and not otherwise unlawful becomes unlawful when the land on which it exists or to which it is immediately contiguous, is dedicated to the public as a way, if the erection prevents the way from being so convenient and safe as it otherwise would be or whether on contrary the dedications must be taken to be made to the publicv and accepted by them subject to the inconvenience or risk arising from the existing state of things. We think the latter is the correct view of the law.
If the use of the soil as a way is offered by the owners to the public under given conditions and subject to certain reservations and the public accept the use under such circumstances there can be no injustice to holding them to the terms on which the beneift was conferred. On the other hand great injustice and hardship would often arise if when a public right of way has acquired under a given state of circumstances to his won disadvantages and loss and to make further concessions to the public beyond the scope of his original intention.”
To put this principle in its right prespective we should mention in passing its historical background or road construction in Britain. In the olden days in Britain highways usually came into existence when a lord of a manor or a country squire or any other landowner dedicated, i.e. gave as a gift, part of his lands to the public to be used as a highway. The King being the paramount landlord used on many an occasion to make such dedications or gifts to his subjects and in those days there was no dividing line between the official and private possessions of the Crown- all were the King’s private propery. Dedication means offer and acceptance, that is the dedicator offers the use of his land to the public and the public are free either to accept or reject it. If the dedication is accepted then the right of user, that is, the right to pass and repass, vests in all the King’s subjects subject to the reservations laid down by the dedicator.
However with the increase of population and the growth of large towns in Britain, highwasy were taken more seriously by the State; and Statutes regulating highways were introduced. They gave powers to highways authorities, local authorities and governement department to construct and maintain roads and also gave them the power to use public funds to attain these objectives. This is an outline of how highwasy came to exist.
Bearing in mind this historical background we are of opinion that the principle in Fisher v. Prowse is of very restricted application. It must be confined to cases where private persons dedicate part of their property to the public to be used as a highway. Persons are prefectly entitled to offer the use of their property in any maner they like, with all sorts and reservations and obstructions; and if the public accept the offer then they must accept it as it is with its advantages and disadvantages, with its goods parts and bad parts. The status quo is frozen at the time of acceptance and no one can be heard to complain of any impediment or obstruction that was dedicated with the road. Surely the dedicator may be liable if at any time after dedication he changes for the worse the state of the original obstruction. There is, of course, no obligation on the public to accept the gift and therefore if it is not to their liking they are prefectly entitiled to reject it as a whole.
We are of opinion that this principle taken in it right context is very logical and very fair to the individual who for charity’s sake or for any other reason gives away some of his rights to the public. It would be most unfair if the public accept the highway as it is and at the same tims sue to the dedicator if they are injred by a defect they had already accepted. It will be like keeping their loaf and eating it at the same time. Moreover English Courts were bound to protect the dedicator, for if they do not do so highway development will be stifled as landlords will very logically not indulge in a practisce that will ultimately lead to trouble and litigation. It is safe for them not to dedicate at all.
On the other hand it will be equally unfair if local authorities which are empowered by Parliament to make and maintain roads for the public and to spend public money for that purpose are allowed to use the principle in Fisher v. Prowse as a license to perform their statutory duties negligently and dangerously. That simply can not be accepted.
A passage in Baxter v. Stockton-on-Tees Corporation (1958) 2 All E.R. 675 to which our attention has been by Counsel for Plaintiff throws much lights on the point. Lord Jenkins who read the judgment of the Court of Appeal said at p.680 per curiam:-
“ We think that it is plain that when a highway authority constructs out of public funds a new road for the use of the public under statutory powers delegated to the authority by the Minister pursuant to section 10 of the Development and Road Improvement Act 1909 and opens it to the public on completion, there is no question of the dedication of the road to the public by the constructing highway authority in any relevalent sense of that expression. The highway authority in such a case constructs in exercise of the delegated statutory powers a road which constructed as it is under these powers can not from first to last be anything else than a public highway and comes into being as such. The immunity afforded to a private owner of land who dedicates it as a public highway, in our view has no application to such a case. On the contrary there is authority to which we will refer later for the propsition that a highway authority constructing a road for the use of the public under statutory poweres is under a positive duty to take reasonable care to construct it properly.”
In view of the above we reject the defence straightaway and decide that the principle in Fisher v. Prowse has no place in cases of this nature. Indeed we will be sinning against all the rules of logic, fairness and common sense if we decide otherwise.
The learned Attorney-General also brought to our notice the case of Margan v. Leach (1842) 10 M. & 558. this is a case concering the Highway Act 1835. the Court decided in that case that a surveyor could not be convicted for failing to comply with a justice’s order under section 73 to remove dung from a highway and failing to fence a pit adjoining a highway. We are of opinion that Morgan v. Leach is not relevant to the present case. It is a criminal case and anyway it deals with ancient ditches.
Attorney-General also set up the defence of de minimis no curate lex, i.e. if the drain was dangerous the danger or obstruction was “slight, inappreciable or insignificant”, and also quoting Attorney-General v. Wilcox (1938) 1 Ch. 934 the Attorney-General states “ it is a technical obstruction which does not substantially interfered with if an unlit, uncovered and unguarded drain 2½ metres wide, 2 metres deep and immediately adjacent to the highway, if not part of it, does not interfere with it, we need not waste much time on this point.
Now we proceed to discuss one of the major contentions of the learned Attorney-General, that is, as he alleges, there is no liability on the Municipality because the digging of the drain was specifically authorised by statute. In our judgment the general rule with regard to the defence of statutory authority is that when a statute authorities an act to be done, which otherwise unlawful, such authorisation could be a good defence and no one is entitled to recover damages in case an injury flows as a the outset, the defence of statutory immunity is subject to the general limitation imposed by the common law, that the person on whom the statutory authority is conferred must exercise such authority with due care and skill; though if it is proved that the resultant damgae is inevitable, and will flow regardless of reasonble care, then he will in our opinion avail himself of the statutory defence; for when the Legislature authorities an act it persumed to authorise the inevitable consequences, otherwise the powers granted may be negatived and rendered inffective. The task before the Courts is such cases is to interpret the statute concerned to find out the exact intention of the Legislature- to find out whether the intention is to grant immunity in respect of all injures flowing from the authorised act, or whether it is to give the authority subject to th exerise of reasonable care and skill- the Court, of course, always bearing in mind the established presumption that the principles of common law are seldom wiped away by aside wind. Generally speaking if there are several modes of doing an authorised act, some of them being are, the Legislature is presumed to have granted the authority with the provison that only the safe modes are to be followed; but if in the circumstances there is only one mode of performance and that mode is inevitably, is rendered lawful.
In expounding these principles we have behind us the support of number of English cases dating from the nineteenth century. The first and most authoritative case is Geddis v. Proprietors of Bann Reservoir (1878) 3 App. Cas. 430. It was decided by the House of Lords in 1878. Lord Hatherley is reported to have said in this case at p.450. :-
“I apprehend that the true construction of all such powers given to Companies is this: You may carry out your work to its fullest extent and in some case you must carry out its fullest extent in the manner provided by the Act , but in so diong you shall not creat any needless injury- you shall use those precuations against injury to yourself in carrying on a similar work and if we find that in carrying powers which you can exercise shall be exercised for the prevention of mischief.” Lord Selborne in his judgment in the same case at p. 452 gives his view of the law in the following quotation:-
“ It appears to me to be clear that if, by the Act of Parliament, power is given to the defendants to convey by this particular channel to the river Bann a supply of water which would not otherwise in the same manner naturally pass down that channel and to do all things proper and necessary for the conveyance and regulation of such supply of water that power does not enable or authorise them to flood the lands of the neighbouring proprietors unless it would be impossible to avoid or prevent such flooding by any reasonable and proper use of their statutory powers. For this proposition I don’t think it necessary to cite authority; but I may say that it appears to me to be consistent with all the authories which have been referred to, and to rest upon very evident grounds of reasons, justice and law.”
At p. 454 Lord Blackburn reiterates the same principle:-
“ For I take it without citing that is so throughly well established that no action will lie for doing that which the Legislature well had authorised if it be done without neglience, although it does occasion damage to anyone; but an action does lie for doing that which the Legislature has authorised if it be done negligently.”
The Second case, Metropolitan Asylum District v. Hill (1881) 6 App. Cas. 193. was decided in 1881 also by the House of Lords.
The circumstances of the case as follows:- The Metropolitan Poor Act 1867 authorises the formation of Districts and District Asylums for care and cure of the sick and infirm poor, creates corporations for that purpose, gives authority to the Poor Law Board to issue directions to the corporations to enable them to pruchase land and erect buildings for the purpose of the Act. But it does not by direct and imperative provision order these things be done. The authority concerned erected a hospital in Hampstead for the reception of persons suffering from smallpox and other infectious and contagious disorder. Sir Rowland Hill and two other gentlmen who resided at Hampstead and had property there brought an action alleging that the hospital being erected near to their properties consituted a nuisance.
The contetions of Defendants included, inter alia, the defence that even if the maintenance of the hospital was a nuisance to the Plaintiffs as owners and occupation of adjoining property such that if it had been maintained by private persons the Plaintiffs would have been entitled to relief., the Legislature has thought fit to deprive them of that relief. It is intersting to not that exactly the same defence is put forward by the Attorney-General of the Sudan in this case. This contention was rejected and the Court held that the District Board could not set up the statute nor the orders of the poors law under it as an answer to an action or to prevent an injunction issuing to restrain the Board from continuing the nuisance. Lord Blackburn at p. 208 of the report states:-
“But the question, as I see it, is whether there is an intention shown on the part of the Legislature to authorise the erection of an asylum where it is a nuisance to owners of the adjoining property if the Poor Law Board thougth it a fit place either mistakenly thinking the asylum would be no nuisance there or perhaps rightly thinking that there was no other place in which it could be erected without being a greater nuisance that if erected there.
It is clear that the burden lies on those who seek to estalbish that the Legislature intended to take away the private rights of individuals to show that by express words or necessary implication such an intention appears. There are no express words in this Act and I think that the weight of argument is rather against than in favour of such an implication.”
Lord Watson at p. 212 in the same case states the principle with even more clarity :-
“ I do not think that the Legislature can be held to have sanctioned that which is a nuisance at common law except in the case where it has sanctioned the use of a specified building in a specified position which can not be so used without occasioning a nuisance , or in the case where the particular plan and locality not being prescribed it has imperatively directed that a building shall be provided within a certain area and so used, it being obvious or established fact that nuisance must be the result. The Defendants must prove two propositions- in the first place that such are the imperative orders of the Legislature and in the second place that they can not possibly obey the orders without infrining private rights. If the order the Legislature can be implemented without nuisance they can not in my opinion plead the protection of the statute. Where the terms of the statute are not impretive but premissive, where it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put into execution or not, I think the fair inference is that the Legislature intended that discretion to be exercised in strict comformity with private rights and did not intend to confer a licence to build in any place which might be seltected for the purpose.”
These two case in our judgment lay down the principles of law clearly, unequivocally and with confidence. They were followed by eminent English Judges in McCelland v. Manchester Corportation (1912) 1 K.B. 118, Mrrioson v. Sheffield Corporation (1917) 2 K.B. 866 and Fisher v. Ruislip U.D.C (1945) 2 All E.R. 458 (see Lord Greene’s characteristically instructive judgment).
The learned Attorney-General brought to our notice a number of cases which he considered to have ordred the principle in Geddisv. Proprietors of Bann Reservoirl. His first case is Great Central Railway Company v. Hewlett (1916) 1 A.C. 511. In our opinion this case did not add anything new to law. it only said that if the specific wrong was existing and was authorised by Parliament after the even, then it ceasaes to be a wrong. That is perfectly understandable. In that case the posts and gate were wrongly placed in the highway. In 1901 they were judicially held to be an obstruction. Then the Railway Company obtained an Act of Parliament which legalised the obstruction and in effect Parliament said that although the posts might in future keep them as they were in the same form, in the same place without lighting or guarding them. it is a case where Parliament gave a full and absolute licence to the Company.
The Attorney-General also pointed out with regard to Morrison v. Sheffild Corporation that the Act of Parliament had specifically provided that the powers were to be exerised subject to private rights. There is nothing wrong about that. It only meant that the Legislature wanted to make assurance doubly, sure and therefore it preferred to declare and embody the comon law principle in the statute. We hope we are not being asked to believe that if an Act of Parliament embodies a principle of the common law then that principle shall not thereafter apply unless it is specifically provided for by statute. If that be what the Attorney-General means, then we completely disagree with him.
The learned Attorney-General also brought to our notice three very interesting cases, i.e. Wodehouse v. Levy (1940) 2 K.B. 561; Lyus v. Stepney Borough Council (1941) 1 K.B. 134; Fox v. Newcastle-upon-Tyne Corporation (1941) 2 K.B. 120.
Those cases were deciding in the Court of Appeal in 1940. the Wodhouse case was decided by Lords Justices McKinnon, Luxmoore and Goddard who unanimously reversed the judgment of Mr. Justice cassels in which he followed the geddis case. The Lyus case was decided by Lords Justice Scott, Mckinnon and Luxmoore, who also unanimously reversed the judgment of Mr. Justice Humphries in which he followed the Geddis case. Fox’s case was decided by Lord Justices McKinnon, Luxmoore and du Parcq. It reversed, du Parcq dissenting, the judgment of Judge Richardson who followed the Geddis case.
It is very interesting to note that nearly the same Judges of Appeal sat in all three cases excluding Lords Justice Scott. Goddard and du Parcq, that in all three cases the Court below was reserved, that all three cases were deciding during the first years of the War (1940 and 1941) when Britain was undergoing the most bitter experience of her history, when the blackout meant so much to the existence of Britain , when the German Air Arm was dealing blows the like of which had never before been known to the history of the human race, and that all three cases deal with the duty of corporations to light obstructions on the highway. Against this background we now go on to discuss these cases one by one.
Wodehous v. Levy: An infant was injured on the night of 1st September 1939 when travelling in a taxi-cab which was driven by defendant Pirie and owned by defendant Levey. The cab collided with an unlighted bollard on a refuge in the middle of the road. The refuge had been placed by St. Management Act 1855, section 108 and the street was ordinarily lighted by the Council in accordance with section 130 of the Act. But the Lighting (Restriction) Order No. 1098 of 1939 which came into operation on 1st September 1939 provided (in para.1) that subject as thereinafter provided no person should show any light during the hours of darkness;
And this general prohibition was not to apply (inter alia) to lamps indicating obstructions upon the carriage-way of any road provided that they are a candle power not exceeding 1.0 and so screened as to prevent light being thrown upwards. Lords Justices McKinnon, Luxmore and Goddard unanimously decided that the local authority was not liable.
So far as we could gather the decision rested on the following grounds:-
1.That the Local Authority were given the right to put the refuge in the middle of the highway and, if there is any obligation to light the refuge that also must be discovered from the statute, And that no duty could exist unless it was imposed by statute.
2.Even if there was a duty there was in the circumstances no lack of reasonable care on the part of the Local Authority.
It is the first ground that seems to push forward new concepts of law inconsistent with the estavlsihed principles of the common law; namely with the decisions of the House of Lords in the cases of Geddis and Metropolitan Asylum District v. Hill. Here the Court of Appea ignored completely the deeply entrenched principle, that unless the statute expressly or by implication provides otherwise,a statutory authority should be exercised with due care. The great Lords Justice in fact reversed the position of the common law and prsumed that there was no duty of care unless it be imposed by statute. They also seemed to have confused the general duty to take care by whatever reasonable stepts with the specific duty to light. The duty to light is one measure among many and the fact that lighting is prohibited does not in the least affect the general duty to take reasonable care. We emphatically disapprove of this case which purorts to explode sky high a most venerable principle of the common law; and we are not alone either, Lord Justice Green in Fisher v. Ruislip had in no moderate language repudiated Wodehouse v. Levy.
“ I feel bound to point out” the Lord Justice stated on p.606 of the Report “ that if the views expressed in wodhouse were correct and Local Authorities in the Metropolitan area had acted upon it (which happily they did not) the streets of London would have been litered with smashed vehicles and the bodies of their occupants. Moreovcer the argument is quite inapplicable in a case such as the present lying outside th earea of compulsory lighting. Is it to be said that if a Local Authority outside that area chooses not to exercise the premissive power of lighting its streets it is entitled to leave street refuges unlit? If so it would be sheer murder.”
The Lyus case had exactlyTHE SAME FACTS AND THE Court of Appeal had unanimously followed its decision in Wodehouse repeating the same line of argument. We disapprove of this case on the same ground that persuaded us to disapprove of the Wodehouse case.
The next case is Fox’s case. It deals with the same statute and has the same facts as the previous two cases, except that the erection here was made afte the prohibition. Lords Jutstice Luxmoore and McKinnon naturally follwed Lyus and Wodehouse- but Lord Justicse du Parcq who took no part in the previous decisions gave a long dissenting judgment in which he steered a middle course accepting Wodehouse but distinguishing it from Fox and at the same time asserting the authority of Geddis v. The Proprietors of Bann Reservoir.
However we feel that these three cases were unhappily decided and one may tempted to rermark that perhaps the sober voice of the common law was temporarily dronwed by the explosions of bombs and can not balls, and the perhaps the conditons of war were the inarticulate major premiss” on which the Lords Justices base their decisionl. It is very fortunate that Lord Greene in Fisher’s case had cleared the position and the Geddis case had emerged with all its former vigour.Now having fully discussed the law we turn to the nature of the powers granted to the Municipal Council. The Khartoum Municipal Council is a statutory creature- a body corporate with perpetual succession-erlying for its excistence on the Local Government Ordinance 1951 and also on the warrant which by virtue of section 7 of the said Ordinance may confer upon the Coucil all or any of the powers set out in the first schedule, and any powers which under any Ordinance or Regulation may be conferred by Warrant Council. The Khartoum Municipality Warrant had conferred-inter alia- the power to provide drainage for the area convered by the samid Muncipality. This power is in Schedule (1) Part 5, Clause 1. The Ordinance and the warrant read together provide that “the Council shall have the power to provide…drainage…”. It is significant that neither the Ordinance nor the warrant has laid down how, when or where, or in what shape the drains are are to be dug. All this is left to the sole discretion and absoulute choice of the Municipal council. “ The Council decides whether to make a drain or not “ as the Town Clerk told the Court below.
Indeed we venture to state that acording to this piece of legislation the Municipality can with aboslute impunity choose not to exercise their powers at all and not to dig any drains in any part of khartoum. They may if they so elect fold their arms and watch the beautiful city of khartoum overwhelmed by the deluge! The Courts will not and can not move to compel them to act. The Ordinance does not allow it. But surely if a Municipality maintains-this form of masterly inactivity then they will call upon themselves the wrath of the State and the citzens alike and their powers will rightly and inevitably be withdrawn. This is in our opinion the correct interpretation of the powers of the Municipality-premissive and discretionary.
Moreover the Ordinance does not suspend the underlying common law presumption that the power should be exercised with due care nor do we fell that we will be justified in deciding that the provision of drains is an invitably hazardous operation and will cause damage regardless of whether due care was observed or not.
Basing ourselves on the above we are of opinion that it is the manifest intent of the Legislature that the Municipal Authority be given power to provide drains subject to the provison that reasonable care is observed in the provess of digging and after completion and that the Legislature never intended to deprive the citzens of their common law rights.
Next we proceed to discuss the issue whether defendants are laible in neglignece or nto-whether th ediging of the drain in the way it was done taken with all the circumstances attending it amounted to an act of negligence. Negligence in broad lines involves a duty on Defendant to take care, a breach by Defednat of that duty and damage resulting to Plaintiff from such breach. The first task of any court is to try find out whether in the circumstancves a duty to take care exists. And this is not an easy thing; for the sort of relations that create a duty on defendant in favour of Plaintiff are not limited nor are they confined to precedents. Every day new relationships come up, new situations arise and change and in the light of these changing relationships the Courts have to examine and assess cases coming before them, each on its own merits, to find out whether in the particular circumstances a duty is cast on the Defendant to take reasonablecare as regards the Plaintiff. A workable test had since the beginning of the nineteenth century been formulated by English Judges and had been developed and evolved with the experince of a century or so behind it. The test is based on the paratical comon experiecne of everyday life and takes into consideration human wisdom, human knowledge and human frailties. The Defendant according to this test is not placed in the position of an insurer to be resposible for every injury, ever wrong, that happens to occur. If this be the case life willl be practically intolerable. A man is to guard only against risks of injury that could be reasonably foreseen. Once this reasonable foreseeability is establisheed a duty to take care in case on the Defendant and he should consequently take reasonable stepts to protect persons within the sphere of the danger.
This test has been elucidated in many cases. Chief among them is Donoghue v. Steveson (1932) A.C. 562. Lord Atkin has stated in his often repeated judgment that:-
“there mnust be, and is, some general conception of relations giving rise to a duty of care of which the particular cases found in the books are but instance. The liability for negligence whether you style it as such or treat it as in other systems as a species of culpa is no doubt based on a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure can not in practical would be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complaint and the extent of their remedy. The rule that you are to love your neighbours becomes in law: that you must not injure your neighbour; and the lawyer’s question Who is my neighbour? Recieves a restricted reply. You must take reasonable care to avoid acts or ommissions which you can reasonable foresse would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be- persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts, or omissions which are called in question.”
In Bourhillv. Young (1943) A.c 92 another House of Lords case. Lord Macmillan remarked:-
“The duty to take care is the duty to avoid doing or omitting to anything the doing or omitting to do which may have as its reasonable and probable consequences injury to others and the duty is owed to those to whom injury may reasonably and probabley be anticipated if the duty is not observed.”
The dicta were almost to the letter repeated in Owens v. Liverpool Corporation (1939) 1 K.B. 394, Woods v. Duncan (1946) A.C. 401, King v. Phillips (`1953) 1 Q.B. 429, Lewis v. Carmarthenshire County Council (1953) 2 All e.R. 1405, and in many other cases. They were universally accepted and approved and if there were any criticisms they did not go beyond the surface. Taking these dicta as our guiding principles let us make an attempt to find out whether Defendants’ act of digging the drain casts upon them in the circumstances a duty of care towards the users of the highway and if a duty existed did Defendants take reasonable steps to protect such users.
Here is a drain on or imediately adjacent to the highway, at least two and a quarter meteres wide and about two meteres deep, unlit and totally uncovered- the highway being in a residential area. These facts, in our opinion, are in themselves proof that conditions in 47th Avenue are not altogether safe and especially during dark moonless nights. A reasonable man studying these facts is bound to foresee the danger. It is a danger that could be reasonably foreseen. 47th Avenue runs through a residential area occupied by foreigners and Sudanese- rich people with servants; and diplomats who hold many evening parties. These facts taken together Cast in our opinion a duty on Defendants to take steps, reasonable steps, to protect the public against the unsafe conditons created by the existence of the drain in 47th Avenue. The argument of Counsel for Defendants that 47th Avenue is not a busy street does not impress us. As long as a road lies in a residential area there is always a minimum of pedestrian traffic suffeicient to warrante a duty of care to protect them- even motorists can not be left unprotected.
Counsel for Defendants argues that injury to the public is in the circumstances not reasonbly foressenable and he cites in support of his argument three recent decisions: Bolton v. Stone (1951) A.C. 850; Roe v. Minister of Health (1954) 2 All E.R. 131; Rich v. London County council (1955) 2 All E.R. 376.
Bolton v. Stone is the Cricket Ball Case in which an exceptionally strong batsman hit a criket ball so powerfully that is struck Plaintiff who was then using the highway. The Plaintiff raised his action against the Cricket Club and lost it. It was proved in that case only six balls went out of the field in 28 years and that cricket has been played on this ground for about 90 years and no ball has been proved to have struck anyone on the highway near the ground until Respondent was struck nor has there been any complaint to the Appellant.
Lord Porter was reported to have said: “ It is not enough that there is a remote possibility that injury may occur; the equestion is would a reasonable man anticipate it?” Lord Oaksey in the same case stated; “ The standard of care in the law of negligence is the standard of the ordinary careful man but in my opinion an ordinarily careful man does not take precautions aginst every foresseable risk.” Lored Reid had hammered on the same point and capped his argument by quoting Lo9rd Dunedin’s telling remark in Fardon v. Harcourt- Rivigton (1932) 146 L.T. 391: “People must guard against reasonable probabilities but they are not bound to guard against fantastic possibilities.
There is in our judgment nothing new in this case. It did nothing more that to apply foresseability test to the facts of the case before it. The Court came to the conclusion that nor reasonable man could have forseen that a cricket ball could be so powerfully hit as to go beyond tha ground and strike a user of the highway. That was a fanstastic possibility and no one is bound to guard against it. The gist of the case is that the facts did not satisfy the test of reasonable foreseeability and so they fell on the other side line-let us call it the safe side of the line. We may be tempted to remark that if the action in Bolton v. Stone was raised against the particular batsman who hit the ball and if it was proved that he knew or had reason to know the magnitude of his physical strength and the distance between the wicket and the highway then he might be found liable by the very test that absolved the Cricket Club from responsibility.
The next case is Roe v. Minister of Health. In 1947 Plaintiffs underwent a surgical operation at the Chesterfild and Derbyshire Hospita. Before the operation in each case a spinal anesthetic consisting of nupercaine injected by means of a lumbar puncture was adminstered to the pateint by Second Defendant – a specialist anaethetist. The nupercaine was contained in glass ampoules which were prior to use immersed in phenol solution. After the operations the plaintiffs developed spastic paraplegia which resulted in paralysis from the waist donwwards. It was found that phenol contaminated the nupercaine by percolating through molecular flaws or invisble cracks in the ampoules. The Defendants were found not liable. The underlying ground was that in 1947 the medical profession never knew that there was a risk of phenol percolating through molecular floaws, and that the risl could not have reasonably been foreseen. We are sue if the facts this case had been repeated all over again at any time after 1947 Plaintiffs would have won the case. This a gain a case that fell on the other side of the line.
The other case is Rich v. London County Council. This case also never deviated from then reaonable freseeability test but is also fell on the other side of the line. These thress cases are but instances of the application of the reasonable freseeability test-mere instances of risks that could not have been reaonably foreseen.
The next point raised by the learned Attorney-General is in Attorney-General’s own words that “ the drains are essentail to the life of the whole population. Wihtout them people will die and suffer from diseases. Their house 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 matintened at any rate than to refrain from them altogehter because of the accompanying risks of injury to some individuals.” This is the picture drawn by the learned Attorney-General . it is undobtedly a picture of horror drawn by a lawyer of exceptinal ability and high literary taste with the inteniton of putting before our eyes the destruction, the woes and sorrows that will overcome us if drains wer not dug. But 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 confrot them with the bogey of the deluge unless they bow down and accept its negligent acts with servile submission.
The learned Attorney-General also contended that there were few accidents in the history of the drain which was dug in 1952. The is type of evidence was admitted in Bolton v. Stone to the advanatge of Defendant. Bolton v. Stone was a borderline case and the Cour found it necessary to examine the previous accidents involved. But the drain in 47th Avenue in
The circumstances attending in at the time was a danger per se and even if it was proved that it was not involved in any accident such proof would very much surprise the Court and would go against the natural and logical course of events. This point however did not succeed in affecting our line of thinking.
Having established the duty cast on the Municipality to take reasonable care to protect users of 47th Avenue against the dangers of the drain dug by them, out next tasks is to find out whether this established duty has been discharged. The drain in 47th Avenue which is not a lighted Avenue is, as already mentioned, about 2 metres deep 2¼ - 2½ metres wide, and it is adjacent to the highway. It is unlit and uncovered. The Court below found as a fact that the drain had no raised edges and no pillars were made to give a clue of its existence and even the witnesses who gave evidence in favour of the Municipality and testified to the existence of the pillars stated they were cement colour. These established facts tell us in no ambiguous or uncertain language that the Municipality did nothing to bring the notice of the public the existence of the drain. All that the Municipality had done was to dig a dangerous drain and then to fold its arms and stand away motionless, in semi-sleep, and without a modicum of interest in the safety of the citizens. Indeed the Municipality proved to have neither the will nor the intention to do its duty as regards the safety of the public. In these compelling cicumstances we have no alternative but to decide that the Municipality did not take reasonable stepts to protect the public and as a resutl they are liable in the tort of negligence.
In arriving at this conclusion 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 not intention to impose Municipalities duties in any way out of proportion with their financial standing; we have not intention to impose on them a duty to take steps unreasonable in their circumstances; 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 curatin-we use the phrase in no poitical sense- closing his eyes, and putting his hands on his ears, neither hearing of nor seeing the civic, econmic or social relaities of Sudanese life. We don’t want for one moment to be in that position. Indeed we believe that if 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 that Court.
We don’t insist on covering nor on complete lighting. But even these minimu stepts were not taken by the Defendants. This is a most disheartening attitude. Our growing Local Coucils should from their cradle be trained to apprecaite with complete awareness their privileges and their rights as well as their duties and responsibilies. They should not expect Powers without responsiblities usually creat arrogance and rot and will ultimately be the caluse of moral deterioration and disintegration. Our legal institutions, we hope, should not be allowed to sink to that level.
Liability of the Municipality in negligence being proved we move on to the issue of contributory negligence. Contributory negligence arises as a defence when Defendant proves that though he is negligent, the other party, i.e. Plaintiff, is also negligent and had contributed by his acts to the damage caused. The word “negligence” in “contributory negligence” bears a slightly different meaning from negligence as a cause of action. It is not necessary in contributory negligence that a duty should be owed by Plaintiff to Defendant . it is enough to show that the Plaintiff did not act in the circumstances as a prudent and reasonable man would act, i.e. Plaintiff did not care to look after himself and that his carelessness had contributed to the damage cause to him. The standard of care expected from Defendatn. He is expected to behave reasonably in the circumstances and to protect himself against reasonably foreseeable dangers always reckoning the possibility of others being careless. However the whole question is one of fact and each case depends on its own merits. Precedents and previous views of Judges are not binding though they are and indeed must be viewed with respect deseved.
In Nance v. British Columbia Electric Railway (9151) A.C. 601 at p. 611, Lord Simon, reading the advice of the Judicial Committee of the Privy Council, states:-
“All that is necessary to establsih such a defence is to prove to the satisfaction of the Jury that the injured party did not in his own interests take reasonable care of himself and contributed , by his want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation satisfy the whole of the Plaintiff’s claim the principle involved is that, where a man is part author of his own injury he can not call on the other party to compensate him in full.”
These are the broad principles of the defence of contributory negligence. The Law Reform (Contributory) Negligence) Act 1945 has made drastic changes in the consequences of this defence. Before the Act, once contributory negligence was established, the whole basis of liability fell and the Defendant rode free on Plaintiff’s negligence. But the Act introduced a new and more fair principle-eacth is to pay for the share he contributed to the accident. Section 1 (1) of the Law Reform (Contributory Negligence) Act 1945 provides as follows:-
“Where any person suffers damages as the result partly of his own default and partly of the fault of any other person or person, 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.”
Going back to the facts of the case let us try to find out whether the behaviour of Plaintiff in the circumstances amounts to contributory negligence, i.e. amounts to failure to take reasonable steps in his own interest and to his own safety. On 2nd of May in the evening at about 7.45 the Plaintiff, his wife and daughter, Mr. And Mrs. Tewfik Cotran came to attend the Iraqi Embassy party in the Ambassador’s residence in House No. 67 (Kyriakos’ house) on the northern side of 47th Avenue. Plaintiff and his party entered 47th Avenue from the eastern end. They had not travelled any great distance on 47th Avenue when they were stopped by a traffic policeman who told them it would not be possible to park their car near the Embassy building and advised them to park nearabouts where they were and then walk up the Embassy. This was done. The car was left to be parked by Mr. Tewfic Cotran, about 150 yards from the Embassy. The Plaintiff and Mrs. Tewfic Cotran walked ahead. After parking the car Mr. Tewfik Cotran and the other two ladies followed at a short distance behind. It is said that they walked on the asphalt on both sides of which were stationary parked cars of the guests of the Embassy. When they had walked much of the distance they noticed a traffic jam opposite the Embassy entrance-two trucks from opposite sides having come on and the traffic police were trying to clear the jam. Seeing this jam Plaintiff being in the rear-went through the space between two stationary parked cars and had not walked more a couple of metres when they thought it would be better to make a short cut to the Embassy entrance as they were already late. They had never been on this road befere and did not know of the existence of the drain there. They thought they were walking on solid level gournd when suddenly the Plaintiff found himself lodged in the deep drain.
Those are the facts relevant to the allegation of contributory negligency. It may be added that Counsel for Plaintiff admitted that the cars parked at least on the drain side were parked in line and not diagonally. Diagonal parking is a habit of khartoum motorists. Also the Court inferrred from the evidence that there was some light- albeit dim- that might enable a carefully looking out pedestrain to suspect the existence of the drain.
Now let us have a look at the circumstances attending Plaintiff in his journey as he reached the eastern end of 47th Avenue where it touches on the Gezira Road. The distance between the Gezira Road and the Iraqi Embassy is assessed by its Court as 300 yards. Plaintiff was sitting on the front seat on the left of Mr. Tewfik Cotran who was at the wheel. Were assume that the headlights were on. The drain starsts from the Gezira Road almost at the same point as 47th Avenue and they go on side by side towards the west keeping a space of about 5 metres between them. We believe that Plaintiff, being at the front seat and the headlights being on, had in the circumstances a reasonable opportunity of surveying the geography of 47th Avenue with its drain, tarmac, etc., specially at the moment when the car turned to enter the Avenue. The party travelled for about 150 yards in 47th Avenue when they were stopped by the police. Plaintiff as stated descended and travelled on foot. We feelt that his journey from where the car stopped to the point where he fell should give a reasonable many an opportunity to know what was going on in 47th Avenue. As the learned –Attorney-General told us, the fact that the cars were parked a distance from the hedge and in a stratight line and not diagonally according top practice ought to have rung a bell in the mind of Plaintiff. He ought to have asked himself the question “why were these cars so peculiarly parked?” Had he addressed himsefl to this question he would have undoubtedly come to the conclusion that there must be some obstacle, sometheing unusual block that side of road. That in itself should make Plaintiff more careful. We agree with the learned Judge of the High Court that there is no duty on Plaintiff to glue his eyes to the ground but he should have had a general look-out- a glance a head-especially when he was about to emerge from between the two stationary cars. Had he done so, as he ought to have done he could by the help of the dim light coming from the Embassy have seen the drain and avoided it. These facts and circumstances make it clear in our minds that Plaintiff was guilty of contributory negligence. He did not avail himself of all these opportunities and as a result he contributed to his own injury.
The next point to be tackled by this Court concerns the apportionment of damages between the two parties. This is by no means an easy task. The broad principles of apportionment are laid down in the Law Reform (Contributory Negligence) Act 1945, the relevant part of which provides that when contributory negligence is proved 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 taken into account when apportionment is being considered. Some judges place the emphasis on “fault” some on causation and some on blameworthiness.
In Davies v. Swan Motor Co. (1949) 2 K.B. 291, Lord Justice Bucknill said “ the question was what should be that proportions of blame.” Lord Justice Denning is reported to have said in the same case “ the question involves a consideration not only the causative potency of a particular factor but also of its blameworthines.” In Stapley v. Gypsum Mines Ltd. (1953) A.C. 663 Lord Reid stated “ a Court must deal broadly with the problem of approtionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but the Claimant’s share in the responsibility for the damage can not I think be assessed without considering his blameworthiness.”
The Court 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 ahover on the verge of philosophy . but in our opinion the best way to follow it to take into account all these factors against a background of fairness, equity and justice.
Having regard to these principles we proceed to see the opportunities afforded to Plaintiff to know what was going on in 47th Avenue. As said before Plaintiff could have known the geogrhpy of the Avenue on entering from the east-he being on the front seat. Again he walked for 150 yards or say 140 yards along the avenue with cars parked in a straight line parrallel to the drain and about 7 metres away from the hedge. These circumstances alone ought to have set him thinking. Also at the crucial moment when he entered between the two stationary cars and emerged on the other side he ought in our opinon to have had a general look-out in front of him. Had he done so he could and indeed should have recognised the existence or the drain- the tank trap, as described by Counsel for Plaintiff –especially when it is known that there was some light emiting or diffused from the Embassy building. Taking these opportunities afforded to Plaintiff into account we feel that the fault of Plaintiff in the circumstances is not incosiderable. In spite of these indicators, in spite of these opportunities, Plaintiff utterly failed to appreciate the situation and stepped into the drain with already metioned upleasant consequences. By acting prudently, carefully and with reasonableness , he could have avoided the consequence of the negligence of Defendants. We feel that it will be fair, just and equitable if the damages are reduced by 50 per cent., that is the blame is to be shared between the Defendants and Plaintiff on a 50-50 basis.
Before indulging in the question of damages we should like express our deep gratitude for the tremendous endeavours and efforts put by Counsel of both parties to illuminate the dark corners of this case. They laid before us a weath of cases well analysed and well dicussed. The Arguments be they of law or fact were conducted on a really high level-almost a Himalayan level. We enjoyed every bit of the clim and the credit goes to the learned AttorneyGeneral and the learned Counsel for Plaintiff.
Now going back to the assessment of damages we must first discuss the principles governing the right of this Court to disturb an award of damages made by a Court below. The principle simply put is that the Appellate Court should not intervence and substitute its own judgment for that of the Court below simply because it disagrees with it. But on the other hand it is bound to intervence either if the Court below went wrong in law by taking inot accout matters that ought not to have been taken or by ignoring matters that ougt not to have been ignored; or if the amount was so high or so low that no reasonable Court would have awarded-see Flint v. Lovell (1935) 1 K.B. 354. Lord Justice Birket in Rose v. Willey (1951) C.A. No 221 stated that “ the question for this Court is whether this figure was so wrong in the colloquical phrase. So hopelessly wrong, that I was the duty of the Court to interfere with it.” In McCarthy v. Coldair Ltd. (1951) 2 T.L.R. 1226 Lord Justice Dening stated that “this Court would interfere if it said to itself ‘Good gracious me-as high as that !’ ”.
The Court below in the prsent case awarded Plaintiff £S. 7.332.850m/ms out of which £S.2.332.850m/mss were special damages; the remaining £S.5.000m/ms being general damage. We are relived from making a pronuncement on the part dealing with special damages which part the Attorney-General considered fair and therefore concerned only with the amount of £S.5.000m/ms awarded as general damages. The amount was awarded for “the mental pain and suffering of Plaintiff, for his physical pain and suffering at the time of injury and afterwards, for pain present and subsequent of the operation, for inability to be as useful to himself and to others as before, to remain almost depndent in many wasy, though small, and for the loss of amenities of life- (he can not dance, he can not go for a walk say with his favourite dog, he can not join in many social functions), in future as an advocate. The disability was assessed at 70 per cent.” These ######### of damages are difficult and very elusive to assess. However we feel that we must point out that the Court below had in assessing the quantum of damages taken into account certain matters that ought not to have been considered. The fact that Plaintiff was a refugee from Palestine as we regret what happened and it still happening in Palestine we believe it will be unfair if we allow Defendats’ case to be prejudiced, however slightly, by the atrocious doing of the Jews in that land of peace. The point, in our judgment, is completely irrelevant again Court below seems to have dwelt unduly on the efect of the disability on the calling of Plaintiff. As already pronounced, this type of disability has a very negligible effect on his calling and the Court ought not to have worried itself about it.
Counsel for Plaintiff brought to our notice a host of English cases with a view to guide us in assessing the quantum of damages. Let us make it clear from the outsetn that we refuse to be guided ( or do we say misguided?) by English or any foreign cases in this respect, i.e. the actual amount of money to be awarded. The question of quantum of damages is a particularly local concern touching closely on the local conditions and circumstances of each individual country- depending on the standard of living, the wealth of the nation, the economic realities of the country, and its social philosophy. We will be living in a world of dreams, in a fool’s paradise, if we attempt to ignore the existing differences in conditions of life between our country and the United Kingdom. There is no room for comparison.
In attempting to assess the quantum of damages we must confine ourselves to precedents in our own Courts bearing in mind the realities of Sudanese life and applying Sudan standards and yard sticks. We admit we have not got many cases on this point but that should not deter this Court from discharging its unavoidable responsibility . we are bound to set the pace and lay the foundations. Precedents, valuable thought they are for purposese of comparison and as examples of how other minds work in similar circumstances, are not conclusive and don’t fetter the disrection of this Court in choosing the figure it thinks reaonable. Each case has its own merits, its own circumstances, and its own conditions and not two cases are exactly alike for the simple reason that you can hardly find two injuries identical in everything including the victim.
The learned- Attorney-General brougth to our notice the case of Bastawi Suleiman Musa vs. Mohd. Nur Kheiri (HC/KTM/CSL76/53, p. 11 of Digest income of £S. 200 per annum, lost his right arm in a collision between two lories, one of which was driven by Defendant. The Court apportioning liability found Defendant 75 per cent. to blame for injury to Plaintiff. The High Court considered tow principal ######### of damages: (1) actual pecuniary loss and (2) the more uncertain loss arising from pain, suffering and shock. Plaintiff was given £S.1.333.000m/ms under the first head, i.e. actual pecuniary loss. The disability was 80 per cent. Under the second head, e. pain, suffering and shock, he was given £S.100. these figures are the equivalent of 75 per cent. of what ought to have been given if full compensation was awarded. The £S.1.333.000m/ms mentioned above were awarded mostly for loss of earings as the Plaintiff earned his living as a bricklayer and the loss of his right hand surely drove him out of the bricklaying trade.
However we are here more concerned with the £S.100 given for pain, suffering and shock. The reporting of the case if very inadequate and we don’t know the line of argument that let the Court (Mr. Justice Watson) this conclusion. Be that as it may we believe that this case gives a correct indiation as to what direction ought to be follwed. But we must make it clear that the £S.100 given in Bastawi’s case were not shown to include the loss of amenities of life- dancing, social functions, etc. though we neigther know the circumstances in which the injury took place in Bastawi’s case nor the magnitude of the pain and suffering inflicted upon Plaintiff in that case, we know very well the intense and severe pain and anxiety to which Mr. Cotran was subjected. He stayed in hospitals, flats and nursing homes for well over 170 days. The tale is well-tought sadly- told in the judgment of the Cout below. Plaintiff also will have to undergo antohter operation-a major operation- and God knows how he is going to suffer.
However in trying to weigh in our minds what amount must be given to Plaintiff we must not forget that it is only a rougth attempt to translate in hard cash intangible matters concerning human emotions, of fear, anxiety, etc. also we must not forget the principle that Plaintiff should not expect to draw a profit from his misfortune. He must expect no reward. It is only compensation that he must expect.
Bearing all these principles, arguments and facts in our minds, we feel that the amount awarded by the Court below is too high. This Court was in fact shocked and had to utter Lord Justice Denning’s exclamation “ Good gracious me- as high as that!”. Therefore we had to intervence and reduce the damages.
We feel that in the circumstances £S.1.500.000m/ms will constitute a reasonable amount for the head of general damages. £S.500 out of this is for pain and suffering. £S.1000 for loss of amenities of life, etc. this has to be reduced by fifty per cent., Plaintiff’s share in the responsibility . the special damages £S.2.332.850m/ms should also be reduced by fifrty per cent. in the result the total amount to be awarded to Plaintiff should be £S.1.916.425m/ms. The appeal is allowed to this extent.
The Court below made two declarations. These are to be vaied to this extent:-
1.There will be a declaration that should the Governemnt or the Judiciary claim a refund of any sums fo money paid by it towards air passage allowances for the Plaintiff or his wife, either in 1957 or later, when the operation of arthrodesis is to be performed on him, the Council will rwimburse the Plaintiff half the amount paid;
2.There will be a declaration that should the Governemnt or the Judiciary not pay the Plaintiff any salary or pay him less for any
Period of time when he was on the Sick List in 1957 for the period when he may certified by the Government Medical Board to be properly on the Sick List for his operation and for the period subsequent there to necessary for his recovery the Council will make good to Plaintiff half the amount of loss in salary.
Costs agreed upon £S.112 – to be paid to the Plaintiff.
M.A. Abu Rannat C. J. : - I concur.
M. I. El Nur J. :- I concur
(Order accordingly)
________________________________________
• Court: M.A. Abu Rannat C.J., Babikir Awadalla J.
[1] Section 12: “ Nothingwithstanding anything here contained no person holding money or money’s worth in a fiduciary capacity on behalf of another shall acquire any right to retain the same as against such other by loss of time alone, and the right in respect thereof shall not be extinguished as against the person for whom or for whose benefit the same is left.”
• Court: M.A. Abu Rannat C.J., Babikir Awadalla J.
• Court: M.A. Abu Rannat C.J., M.I. El Nur and M.Y. Mudawi JJ.
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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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