(COURT OF APPEAL)

ABBA YAZEED IDRIS HAMAD v. YASSIN EL DALEEL AND OTHERS

AC-REV-502-1966

Principles

  Civil Procedure—Revision——Application for made out of time—Civil Justice Ordinance, S. 2 14—Court may extend time when there is sufficient cause

  Civil Procedure—Findings of fact of court below—When to be disturbed by appellate court

  Prescription—Adverse possession—Reputable of family relationship—Effect of son-in- law of brother-in-law of original occupier—Whether can prescribe

(i) When an application for revision is made out of time, the court may enlarge the time specified by the Ordinance so as to accept such revision, when there is sufficient cause put forward by the applicant under Civil Justice Ordinance, s. 214.

(ii) The general rule is that the appellate court does not disturb a finding of fact arrived at by the court below except when such finding is manifestly erroneous or glaringly defective.

(iii) The son-in-law of the brother-in-law of the original occupier of the plot of land—all dwelling upon it—cannot prescribe as his relationship is one that raises a presumption against adverse possession.

Advocates: Henary Riad …………………….for applicant

                   Ahmed Kheir …………………..for respondent

Judgment

Mohamed Yousif Mudawi J. September 18, 1968 :—This is an application by advocate Henary Riad on behalf of appellant Abba Yazeed Idris Hamad against the judgment of the Judge of the High Court, Khartoum, upholding the decision of the settlement officer in favour of respondents Yassin El Daleel and Others. The settlement officer dismissed the claim of ownership by way of prescription asserted by appellant in respect of plot No. 208 Block 2, Abu Saad.

The objection to the decree of the High Court is based on the following points:

1. That the decision was arrived at against the weight of evidence.

2 . That the fact that appellant is married to the daughter of the sister-in-law of the original occupier of the land does not affect adverse possession.

.3 That the agreement between the two parties which constituted one of the reasons on which the judge based himself was broken by respondents and should no longer be binding.

Advocate Ahmed Kheir on behalf of respondents pointed out the following arguments:

1. The application ought to be dismissed because it was made out oftime, i.e., the order of the province Judge was issued on August 10, 1966, and the application for revision was lodged on October 16,1966

2.The main argument of appellants is based on the allegation that the decision was made against the weight of evidence. But the Court of Appeal does not and should not easily disturb a decision based on a finding of fact which is arrived at through scrutiny of deposition of witnesses and not through logical inference.

.3 The relationship between the parties, i.e., the fact that appellant is married to the daughter of the sister-in-law of El Daleel is sufficient to bring the matter within the principle laid down in the Prescription and Limitation Ordinance, s. 4 (3).

4 . As for the agreement between the parties advocate Ahmed Kheir intimated to the court in his oral argument that he did not dispute claim of respondent that it was no longer binding.

The court proposes to deal with these points in the following order.

1. The procedural point, i.e., the application for revision was made to the Court of Appeal out of time.

2.The right of the Court of Appeal to disturb decisions made by the court below against the weight of evidence.

.3 Whether the relationship of the parties in this case brings the matter within the Prescription and Limitation Ordinance, s. 4 (3).

As for the question of procedure it is on record that the decision of His Honour the Province Judge was issued on August 10, 1966, and that the application to this court was entered into the records of the court on October 16, 1966, i.e., about 66 days later. In accordance with the Civil Justice Ordinance r. 1, Ord. XII, every application for revision of a decree should be made by petition to the court concerned within fifteen days of the date of the said decree. On the other hand the Civil Justice Ordinance, S. 214, empowers the court for

“sufficient cause and on such terms as to costs as it thinks fit either before or after the expiration of the time appointed by this Ordinance or fixed or granted by the court for the doing of any act to extend the time for the doing of such act.”

The above enactments read together give the court discretion to extend the time prescribed for applications for revisions provided that the applicant is in a position to satisfy the court that he has sufficient cause for the delay. This implies that an application to extend the time must be duly made to the court concerned; the court must give it proper consideration and must give the other party an opportunity to be heard; then a reasoned decision should be recorded. The court has a discretion but it is a judicial discretion which should not be arbitrarily exercised. It should be based on reasonable grounds put forward and proved by the applicant. Rustomji in his Commentary on Limitation (6th ed. 1958) p. 50, stated in respect of the Indian Limitation Act 1908, S.5 , which is more or less congruent with our section 214 that

“‘sufficient cause’ should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. If sufficient cause is shown the court has to exercise its discretion in favour of the appellant. The true guide for the court in its exercise of such discretion is whether the appellant has acted with reasonable diligence in prosecuting his appeal or application. But the circumstances of each case must be examined to see whether they fall within or without the terms of this general rule.”

Again on page 52 of the same book it is stated:

“The general rule is, that where a litigation has been adjudicated upon the successful litigant has upon the termination of the time allowed for appealing a vested interest in his favour of which he ought not be deprived in the absence of special circumstances.”

Going back to the case before me, it is evident that no application to extend the time was made; and therefore, the court did not consider this point let alone giving an order enlarging the time. In my judgment, time cannot be extended automatically or by conduct. There must be a clear, express and unequivocal order properly made to extend the time for revision or appeal otherwise the matter cannot be entertained.

In view of this, I conclude that the application for revision was made out of time and ought not to have been entertained.

Though the court could have disposed of this case on the point discussed above, yet I think, for the sake of completeness. I ought to tackle the other points raised by the parties.

The next point put forward by advocate Ahmed Kheir concerns the extent to which an appellate court may interfere with a conclusion of fact arrived at by a lower court. The general rule is that the Court of Appeal does not disturb a conclusion of fact arrived at by the court below unless such conclusion is reached by way of inference. As to the facts based on the credibility with them except when the finding is manifestly erroneous or glaringly defective. In this case the court is bound to put matters right.

The oft-repeated reason behind this rule is that the trial judge enjoys the advantage of being on the spot, observing the witnesses in the flesh, studying their behaviour and the manner in which they gave their evidence. An experienced trial judge in many cases develops what may be termed a sixth sense; that is the sense of evaluating the testimony of witnesses with a high degree of precision not only by scrutinising the words uttered by the witness but also by close observation of the manner in which such words were uttered.

The case of Thomas v. Thomas (1947) A.C. 484, a House of Lords case, exhaustively discusses this point. Viscount Simon in his judgment in Thomas v. Thomas states:

“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law . . . an appellate court has of course jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution.”

Viscount Simon cited with unqualified approval the words of Lord President Inglis in Kinnel v. Peebles (1890) 17 R. 416:

“A Court of Appeal should attach the greatest weight on the opinion of the judge who saw the witnesses and heard their evidence and consequently should not disturb a judgment of fact unless they are satisfied that it is unsound.”

The same principle is embodied in the law of the Sudan in the case of Kattan v. Kattan (1957) S.L.J.R. 35.

Having reviewed the principles of law above, I am of opinion that there are no sound grounds on which the interference of this court in the findings of fact can be justified.

The last point to be dealt with by this court is connected with the interpretation of the Prescription and Limitation Ordinance, s. 4 (3). According to the evidence adduced appellant Aba Yazeed entered into possession of the land round about 1943 when he got married to the daughter of a certain Mohamed Hamad Idris who was living in the household of El Daleel because he was his brother-in-law, i.e., the brother of El Daleel’s wife. Since 1943 Aba Yazeed became a member of the household by virtue of his marriage. The question is: does this relationship raise a presumption against adverse possession? i.e., is this the sort of relationship that makes the possession of appellant a possession on behalf of respondent?

The general rule is that when public, peaceable and uninterrupted possession is proved, then a presumption of adverse possession is created

                                       in favour of possessor. But it is a presumption that can be rebutted by proof of a relationship, blood or otherwise, which according to local custom makes the possession on behalf of the owner. Proof of such relationship does not create an irrebuttable presumption, i.e., it does not irrevocably destroy adverse possession. It can, in its turn be rebutted by evidence, e.g., of gift or sale, etc. (See Stanley-Baker J. in Heirs of Osman Ahmed v. Heirs of Babiker Ali, p. 678 of Thompson, vol. III, The Land Law of the Sudan Cases and Materials. Also see Stanley-Baker J. in Heirs of Babiker Mohamed Rahama v. Heirs of El Hassan Mohamed Rahama, p. 68o of Thompson, vol. III, The Land Law of the Sudan Cases and Materials.)

In the opinion of this court the relationship of Aba Yazeed and El Daleel is the sort of relationship that raises a presumption against adverse possession. Households in the Sudan are normally very large. In many cases they include a retinue of cousins, nephews, relatives of the husband, relatives of the wife and in-laws of all degrees. It is no wonder that an in-law such as Aba Yazeed is by custom allowed to live in El Daleel’s house.

In view of the above the revision is dismissed.

No order as to costs.

M. E. A. Gassouma J. September 18, 1968:—I agree.

Salah Eddin Hassan J. September 21, 1968 : —I agree