Case No.:

PC-REV-27-1958 (Ed Damer)

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Land Law—P re-emption—P re-emption Ordinance, s.5 (a)—Owner of date trees on land sold is a “co-owner.” Pre-emption—Tree-owner on land sold—Pre-emption Ordinance. s. 5 (a)—A “Co. owner.”

The owner of date trees on land sold is a “co-owner of an undivided share in (the) property” within the meaning of Pre-emption Ordinance 1928. S.5 (a) since the trees are “permanently affixed to land” within the definition of property in Pre-emption Ordinance 1928..s. 4 (b).

Judgment

                                                     (PROVINCE COURT)

        AHMED MOHAMED SLJLEIMAN v. EL RASHEED SAAD ANDANOTHER

                                                   PC-REV-27-1958 (Ed Darner)

Osman El Tayeb P.J. September 24, I958: —in this case plaintiff and applicant applied to exercise right of pre-emption in respect of some land sold. His application is based on ownership of date trees in the plot sold. The learned District Judge decided that this is not a ground for claiming pre-emption right and dismissed his case.

The question to be posed and that the learned District Judge ought to have directed himself to answer is: whether the owner of date trees is a co-owner in that land within the meaning of Pre-emption Ordinance 1928, s, 5 (a). This section provides that the right of pre.emption exists in favour of a co-owner of an undivided share in property.

Property is defined by the Pre-ernption Ordinance 1928, S. 4 (b) thus:

“Immovable property and includes land and buildings and things permanently affixed to land and also an undivided share in such property.”

it seems that this definition includes date trees. So it may be concluded that the owner of date trees on land sold is a co-owner in an undivided share in that land. Another fact in support of this proposition is that date trees on land are inevitably irrigated by the same sagia or other means with which the land is irrigated.

I have expressed this same opinion in another case Fad! El Mula El Hussein v. Omer ALI. Omer, PC-REV-88- (Ed Darner) (1962) S.L.J.R.

41. In this case the purchaser was the co-owner in date trees grown on the land sold to him, and the co-ownership of the date trees was in undivided shares with the owner of the land. It was decided that this purchaser is co-owner in the property sold and so no right of pre-emption exists against the sale made to him, in accordance with the meaning o Pre-emption Ordinance 1928, S. 7 (d).

There is an application for revision from the decision in the latter case to the Hon. Chief Justice, and until that application is decided, we have to accept the above opinion as the binding authority on the subject.

The decree of the District Judge, Berber, dated September 13, 1957, 1S set aside and the case is sent back for retrial.

Editor? Note. —The opinion of the Province Judge relied on in this

case, FadI El Mula El Hussein v. Omer Au Omer, PC-REV-88-I957 (Ed

Darner) (1962) S.L.J.R. 4 was reversed on appeal Omer Au Omer v.

Fad! El Mula El Hussein, AC-REV-64- (1962) S.L.J.R. 41, 43 (Babiker

Awadalla J.).