(COURT OF APPEAL)*

AHMED HADRA AND OTHERS V. KHOGALI EL MAHI

(AC-Revision-99- 1959)

EL FADEL EL ABBAS AND OTHERS v. KHOGALI EL MAHI

(AC-Revision- 100-1959)

Principles

·  Land Law __Prescription of unregistered land may run even against the Government

·  constitutional law—Statutes—A legislatise provision derives no legal effect or   validity from being included in the laws of the Sudan “ unless it has in fact been enacted and is still in force. (

i) Prescriptive title to unregistered and unsettled land may be asserted and. if proved, established even against the Government. But this does not apply if the land has been registered as being Government land: Prescriptior and limitation Ordinance. s. 6A/1

(ii) Where a provisional order has not been confirmed by the legislature, its inclusion in the later editions of the laws of the Sudan by error does not give it any legislative lone.

Revision 

Advocate: R. boutros…    for applicants

June 23, 1959 4hu Rannat C: -—The facts are as follows:

Khogali El Mahi brought an action in the Khartoum District Court on March 13. 1952, claiming ownership of an unregistered and unsettled piece of land comprising 0-45 feddans by right of long possession. This , action started by Civil Suit No. 1363/1952 against

1. Ahmed Hadra

2.El FadeL El Abbas Ali

3.Abdel Muta’al Abdel Wahab

4.The Sudan Government.

The plaintiff (Khogali) stated that the first three defendants resisted him when he wanted to complete a boundary wall over this small piece of land in July It is admitted that this piece of land is adjoining plaintiff’s house which was built in 1952 and the plaintiff claims that he has been in uninterrupted possession of this land for thirty-two years. Before Civil Suit 1363/1952 was instituted, a Native Court in Khartoum heard the dispute between plaintiff and the first three defendants

Court M. A. Abu Rannat C.J.. Sitting summarily. The cases were disposed of together.

This case shows the sidenote to s. 6A: “No prescription against Government:

To be too widly expressed—Editor.

North, whicn passed a decision in favour of the plaintiff. The decision

Was reversed by District Commissioner, Khartoum North on September

29 1951and the plaintiff was directed to raise an action in the CivilCourt as the Government appeared to be a party to the suit.

On July 9, 1952, the District Judge served the Advocate-General with a notice under Civil Justice Ordinance, s. 109, and on July 14, 1952, the Advocate-General replied that no action could he allowed against the Government for a claim for ownership in iesv of the provisions of Pro visional Order No. 2 of 1952, which amended the Prescription and Limita tion Ordinance. This Provisional Order reads as follows:

“Section 3A. Every action in respect of unrcgktcred land by or against any person who is or is deemed to be a usuiructuary thereof shall be conclusively deemed for all purposes to be an action con cerning the usufruct and not an action concerning the ownership of such land and the Government shall not in its capacity of prescriptive owner of such land be made a party to any such action.”

On the above submission by the Advocate-General, the District Judge, Khartoum, dismissed the plaintiff’s claim on December 15. 1952. Section 3A was embodied in Provisional Order No. 2 of 1952. Parliament refused to confirm this Provisional Order, and therefore section 3A lapsed and it was embodied in the new edition of the laws of the Sudan by mistake. As a consequence of the disappearance of section from the law, the plaintiff can claim ownership by prescription against the Government.

On January 4, 1953, the plaintiff instituted Cisil Suit No. 81/1953 against the same parties claiming ossnership of the same piece of land. The Government, which was joined as a party, admitted that plaintif! Had and still has a house on the eastern part of the claimed land, but it denied that he had a right to build on the claimed land and resisted the claim. The case was heard and the District Judge dismissed plaintiW claim on the ground that there was interruption in 1951. On an applica tion for revision, the Judge of the High Court reversed the District Judges order dismissing the claim, and ordered that the piece of land comprising 0.45 feddans be registered in plaintiff’s name as owner. The Judge of the High Court in my view was right in finding that plaintiff has acqu a prescriptive title to this piece of land. Against this decision there is no application for revision by the Government. But there is an application by the first three defendants, who contend that the case was not fully heard.

The litigation in these suits started in 1951 and defendants were given every opportunity to adduce evidence in rebuttal of plaintiff’s evidence that he had been using the land fot storing firewood and charcoal and building a wall on part of it for more than twenty years. These defen dants had no title to the land as it was never registered in their names. Furthermore, there has been no interruption since the plaintiff brought action immediately after their interference both in the Native Court and in the Civil Court.

In my view the applications are without merit.

                                                           (Applications summarily dismissed)