Case No.:

AC-rev-161-1962

Court:

The High Court

Issue No.:

1962

Principles

·  Prescription—Relationship—Prescription and Limitation Ordinance, s. 4 ( an illegal relationship—Cannot be a defence in prescription action

Plaintiff claimed land by prescription from defendant who pleaded that on the basis of the relationship of defendant and plaintiff as master and slave, plaintiff held the land on behalf of defendant pursuant to Prescription and Limitation Ordinance 1928, 5. 4 (s).
Held: because slavery is prohibited in the Sudan, it is an illegal relationship and cannot be pleaded under Prescription and Limitation Ordinance 1928, 5. 4 (3), as a defence to a prescription action.
 

Judgment

(HIGH COURT)

AHMED SULIMAN AND OTHERS v. MADENA ABDEL SAFI

AND OTHERS

AC-rev-161-1962

Advocates: Motasam El Tagalawi for defendants-applicant Abdel Wahab El Khidir ... for plaintiffs-respondent

Dafalla El Radi Siddig D.J. November i6, 1961, CS- (Omdurman): - plaintiffs brought this action for rectification of the registration record of the house 2-2-406 in their names. The house is now registered in the name of the defenders. The plaintiffs based their claim on prescription.

It is admitted that the plaintiffs have been in possession for more than to years.

The issues were framed:

(1) Are the conditions for a plea of prescription present, the maxim “longa possessio jus pant”?

(2) Were the plaintiffs in possession of the house peacefully, publicly and without interruption?

There is the following evidence to prove the factum for prescription:

(i) Evidence of plaintiff Madeenah.

(2) Evidence of plaintiff Nasia.

(3) Testimony of Basheer Bedawi that the plaintiffs reside in the house for over 40 years and they paid the rates and maintained the house and that no one of the defendants raised any objection.

(4) There is the version of Ali Abu el Gasim and Fade! Moula to the effect of the above.

It is evident from the evidence adduced before this court that the plaintiff occupied the premises for over 10 years peacefully and to my mind there is not the scantiest evidence to back the issue No. 2.

The defence of unpeaceful possession is to be proved by the defenders. Even defendant Ahmed Suliman, on behalf of the other defenders’ version, supports my conclusion. He said: “The plaintiffs were considered as part of the family because they were slaves, and they were not asked to leave the house.”

The evidence is quite sufficient to support the reaching of the conclusion that Bracton’s maxim, “longus usus nec per vim nec clam nec precario” is satisfied. See Cheshire, Real Property 473 (9th ed. 1962).

The defenders’ counsel seems to have based his argument solely on Prescription and Limitation Ordinance, s. 4 (3), on the plea that there is a special relationship, namely, that of a master and slave. He said, to quote his own words:

“The mother of the defendants raised the two plaintiffs and took care of them and their mother. The plaintiffs were her slaves at the time when slavery was socially recognized and although later emancipated they nevertheless remained dependants and had no individual possession.”

Upon the above quoted paragraph the whole case of the defendants seems to cling.

The defendants want to say that the plaintiffs are their slaves, and as such they cannot own real property. If my assumption be true, to my mind this case of the defendants is based on a wrong footing, since there is no legitimate system of slavery in the above sense in this country. In Roman law, the plebeians, the common multitude or slaves, could not own property, a privilege confined only to the noble and rich strata of the Roman society, the patricians, so they are called. But even Roman law had undergone changes in this respect after the Institutes of Justinian. I am glad to say that even the defendants’ counsel put it expressly in his

submission that no system of slavery is existing nowadays. This admission I believe defeats his own purpose since the special relation he is pleading under Prescription and Limitation Ordinance. S. 4 (3), is said to be one of slave and master. It follows logically from the defendants’ own admission that since the plaintiffs are no longer slaves they are free citizens and so they can prescribe.

I would rather go further and submit that if we assume for argument’s sake that there was a sort of sentimental tie or motherly sentiments between the plaintiffs and the late Hagi that relation should end with the death of the late Hagi because sentimentalities cannot be inherited between people being a matter of personal judgment and taste. I take it that the plaintiffs, and the defendants as well, presumably know the law and that after the death of Hagi the defendants kept silent knowing that the plaintiffs were occupying the house and did not move a finger at the time to their own peril. Equity will not aid a person who does not take prompt action to safeguard his rights.

As far as I can see things from the evidence adduced, the factum of prescription is abundantly established and on the other hand there is not a shred of evidence to disprove the peaceful possession for over to years.

Ergo, judgment is entered for the plaintiffs together with the costs of this action.

A. M. Imam .1. April 25, 1962, HC.REV-161-1962: —This is an application for revision submitted on behalf of defendants-applicant against the decree of the District Court Omdurman, dated November 16, 1962, by which plaintiffs-respondent were to have transferred to their names 211 square metres known as plot No. 2—2—406. Omdurman, which they had claimed by way of prescription.

The one point in this application to be considered is whether or not the relationship of an ex-slave to his ex-mistress or master is such as to bring him under Prescription and Limitation Ordinance, s. 4 (3). In other words whether this relationship is such as to lead a court to the finding that his possession must be deemed to be on behalf of another.

As I see it this application must fail for two reasons. First, by the internal laws of the Republic slavery is prohibited. Some of these laws are penal, e.g., Sudan Penal Code, s. 313, and similar sections. Again by International Law adopted by the Republic slavery is condemned, e.g., the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery (Ratification) Act, 1957. To allow defendants-applicant to plead this relationship is to allow them to plead an illegality. They cannot benefit from an illegality.

Secondly, even if they be allowed to plead this relationship, in the

particular circumstances of this case, they should fail; as Hagi, the ex mistress of plaintiffs-respondent died about i years before the institution of the suit. The presumption is therefore weakened because of the severance of the said relationship. It lies on the heirs of Hagi to prove the contrary that such relationship continued even after the death of their predecessor in title. The record shows no such evidence.

Babiker Awadalla J. July 22, 1962: —Application for review has no merits and is hereby dismissed.

Editors’ Note. —But see Heirs of Urn Gadein khaIil and another V. Abdin Morgan and another, AC-REV-27 (1964) S.L.J.R. (Babiker Awadalla J.).