(COURT OF APPEAL) *

EL NIEMA AHMED KHOGALI vs. NOH and IBRAHIM AHMED

AC-Revision-4-59

Revision

Principles

  Land law—Jurisdiction over land unregistered but following title to registered land Practice and procedure—Resjudicata—Effect of Civil Justice Ordinance, SS. 40, 184

               Where a Court has no jurisdiction over registered land, it has also no jurisdiction over land, at present unregistered, but title to which follows title to adjacent registered land on the principle of Gusad. Where proceedings have taken place in Native Courts without jurisdiction they can be quashed by the Resident Magistrate, but he has no power as to District Judges’ decrees, which can only be dealt with by Province Judges, whose decisions, if given under a misapprehension, can be reviewed by them with leave of the Chief Justice, under C.J.O., s. 184. Effect of resjudicata rule—C.J.O., s. 40—considered.                                                                                          

Judgment

             The history of the proceedings appears from the judgment.                                          

             2nd February 1959. M. I. El Nur J.: —It is quite clear that the application to the learned Province Judge was made against the District Judge’s order dismissing CS/784/1959 on 5th June 1958 on the grounds that the bases of the order of dismissal are no longer valid. The District Judge dismissed the case on the grounds that it was formerly decided by the Khat-El-Wasat Native Court, and advised applicant, if he was not satisfied, to appeal against the Native Court’s decision to the Resident Magistrate. On appeal by applicant to the Resident Magistrate, the latter quashed the proceedings before the Native Court, and said that the case should be heard by the District Court (see his decision of 13th November 1958). Hence arose the application to the Province Judge to order reopening of CS/784/56 as the plaintiff could not start a fresh suit, which would be contrary to C.J.O., s. 40. The papers in the case were so badly filed that the learned Province Judge could not trace the decision by the Resident Magistrate dated I3th November 1958 quashing the proceedings before the Khat-El Wasat Native Court, which was the basis of the District Judge’s decree of 5th June 1958 which applicant was trying to set aside to enable the hearing of his civil suit by the Resident Magistrate. For this reason the learned Province Judge took the application dated 27th November 1958 by applicant as an ordinary application for revision of the District Judge’s decree of 5th June 1958, and summarily dismissed it as out of date. In fact the application dated 27th November 1958 was not out of date, since it was made only                                                                                             

* Court: M. A. Abu Rannat C.J., M. I. El Nur J.

fourteen days after the decision of the Resident Magistrate dated 13th November 1958.   

       The decision of the Resident Magistrate read as follows:                            

    “Whereas this dispute is in respect of registered land and whereas the Khat-E1-Wasat Native Court is not competent to hear and determine disputes concerning registered land, I hereby quash the proceedings concerning this dispute before the Native Court, and order that it should be heard and determined by the Resident Magistrate, Khartoum North.”    

     Though the gerf in dispute does not at present appear in the register, yet the claim by the respondents to it is on the principle of Gusad—that is to say that respondents claim that the said gerf followed the high land above it which is registered in their names. Therefore any decision to be given in this dispute will inevitably affect the register. For this reason I find myself in full agreement with the above decision of the Resident Magistrate.                                                                                                     

      The Resident Magistrate, having made that order, had no power to order setting aside the decree by the District Judge, Khartoum North, dated 5th June 1958, and according to C.J.O., s. 40, applicant cannot start a fresh suit on the same subject. Therefore the only possible solution is for the decree of 5th June 1958 to be set aside and have CS/784/56 reopened. This can only be done by the Province Judge or Judge of the High Court, Khartoum.                                                                                    

      It is clear from the above that the learned Province Judge summarily dismissed applicant’s application dated 27th November 1958 under a misapprehension of the facts explained above and in my view the only possible way is for the Chief Justice to grant the Province Judge leave under section 184, C.J.O., to review his order of 16th December 1958.

11th February 1959. M. A. Abu Rannat C.J.:—I agree. Leave for review is given to Province Judge in respect of his order of 16thDecember 1958.

                                                                                                              (Leave granted)