Land Law - Pre-emption - Degree of cousanguinity - Computation thereof.

Lund LliW - Pre-empLioa.- When right arises - Date of sale - Detennillation
 thereof - ilunlen of proof. "

§tlltute - Interpretetioll - .Bearing of Civil, Common, Callon and Shada L'aw
011 l're-ernpti on Orliinanpe 1928.

Words alld Ph r e se s - .';Rc ltlti ve to fourth degree. 11

L\SillC~ the Pre-emption Ordinance 1928 fo.Llows the ci vi I 18w,
two per SOilS who nregreat-grandsons of the same ancestor are

r e La t i ve s, to the sixth degree and 8 sale of land between them
g i ve s right to a right of pre-emption.

·2.Prirna faciefhe date of sale is that 01 the sale deed,
but it may be shown tlt't; i IS not so and that the actual sale
was c o.up l e t ed by ((1; sal'e and (b) ent.ry into possession on

s o.n e O~;l(!i' ,.Cite.

AUJeL ~ariw Ali Mu1ah v. Heirs of Medina Mohamed Idris₁
J Sud an Law Reports (Civil) 1945, AC-APP-4-L\)44.

Pre-empLion Ordinance 1918.
Pre-emptioll Ordinance hl28, s , 7 (c).

Maclagl:lfl, C.J.

fhis is a cuse under the

He failed in the Shendi District

Cr. u r t., '),; :,,0 ~I ·,;,,,16 t.h a t he could n o i pro ve that his purchase from Sitt8na wa$

prior to that of Omar B1 Hag'l purchase from um Kaltoum..And he

failed again in the Nor~heru Circuit High Court on the ground. tbat U. Kaltou.
and Omar Bl Hag were relative. to the tbird degree, and that therefore, in
accordance witb I.ction 7 {c} of the Pr •••• ptioD Ordinance, 1928, no right

of pre-empt! 011 aroe ••

In our view, thil latter decilion wal clearly wrong.

between vendor and purchaser muet not exceed the fourth degree.
is this relationlhjp determined?

Now how

rhere is no dispute a. too the family tree, the comPion ance.tor of the
firlt and second defendants is Hag Ahmed Abu Dabba, wbo w •• the great-grand

  father of each.  I'he learued Judge of the High Court, on the advice of the

Sh~ria Kadi, held that the defendant I were relativel to the third degree (of

   BIir.;Ahmed Abu Dahba,Thi. il true enough; but it is UQt the problem

   before t.he Cour We are al~ed to say within tbe lIeaning of the Pre...,emption

Ordinance, what is the degree of rela.tionship between o..ar and Om :l(altoum.

Weblter'. Ney International Dict~on8ry puts it 88 folloW8 I

"The degrees of lineal con8anguinity are reckoned as
one degree for each person in the li~e of delcent,
exclusive of him from whom tbe computation begin ••

 I'hi. i. so ar the Ci vil; Canon and Commoll Law. At

tbe Civil Law, the degree of consanguinity between
col1aterala is recknoned by proceedi.ng from one up ro the

 common allcestor and then down to tbe other.At the

.CommoD and the Canon Law the degrees between collaterals
are found by takinl the number from the commou ancee.tor to
ei ther, or the more remote of them Ito

If therefore the dearee of relationlhip rehrred to in the Pre-emption

o rdillance ia to be detenni ned by the Ci vil Law, tben Omar and U. KaltoU!ll are
relatl vea of the Ii xth degree, and plainti ff'. chill is Dot barredl but if it
ia to be d.tenained by the Common or Canon Law, then they are relativ~1 of tbe
third d'ire.~and he i. barred.

!niland recognins no riaht of pre-emption, .0 that tbe drafterl of our
Pre-emption Ordinance "ere not following any precept of English Civil La;". '

What then il the hi.tory of our Pre-emption Ordinance  We bave before

u. dicta from no lesser an authority than Sir Wasey Sterry"dated November
28, 1904, declaring t.hat no right of pre-emption 'Was recognised in the Sudan
except for tne purp08e of dealing with undivided owner.hip of land, and tben

it abould be dealt wi th a. an acti on for, parti ~i on. 'HoweYer, there Clan

be 10 doubt tbat the Sudan Co'urts did, recognise 80me right. of ,pre-emption,
and in order to ootain 10lle measure of uniformity some regulations 'Were is.ued
ill 1913. These regulation. were ba.ed on the provilion. of tbe
ElYptian Decree of March 23, 1901, and they were the forerunner of our
Pre-emptioo'Ordinance of 1918.

Now, as we followed the Egyptian Law, ~t might appear that our
intentioD was to determine this question of the degree of relationship

by the Sharia Law and not by the Civil Law, in which ca.e the Tiew of the

   learned Judge of the High Court, Northern Circuit would be ript.We

   caD, however, state with some confidence that this is not .0. To

begin with the Sharia Law, 80 we are in!ormed, does not reco,nise any
right of pre-emption between relatives, but only between co-owners and

 adjoining owners So that, in stating the degrees of relationship to

the learned judge, the Sharia -adi was dealing with the law of inte.tate

succession and not that of pre-emption.To continue, owing to a

purely fortuitous circumstance, we are left in no doubt at all a. to the

intention of our legislators.
Ordinance read.

 "Sales betweeu  relatives to the third degree

do not give rise to 11 right, of pre-eI'lptinn".

The word"third" was crossed out and IIfourth" substituted, with the
mar~iri81 nol1e that tlQ~,~~rwise it would not inclUde first cousins". Under
the Canon. aud Common Law relati ves of the third degree includes second

cousins, whereaa under' the Civil Law first cousins are relatives of the

fourth degree.

There is therefore DO doubt at all that our Pre-emption Ordinance
follows the Civil Law, and the learned High Court Judge was wrong in finding
that Un KaltoUIII and Omar were relati vea to the thi rd degree. They are:'
relatives to the .ixth degree, so plai'ltiff's right of pre-emption cannot be
excluded under section ,l,,(c) of the Ordinance.

It remains to deal with this case on ita _erits.

Under the Pre-emption Ordinance 1928 the right of pre-emption only arise.

   "upon aale" of the property ill que.tioll.    (See the judpent of the learn~d

Advocate General Mr~ Ma~t~~ordato, in Abd,l Karim Ali Mulah v. Heirs of

   Medina Mohamed Idria, AC-APP-4-1944, (unreported).      The aole issue before

the Court is therefore "waa the sale b7. Sittana to Ahmed W~tar prior in time

   to that by U. Kol toUIII to ~",r EI Hag?"   If it waa, then phi nti ff must'

• ucceed.If it ~as not he fail •Now how i. th, date of aale to be determined ,?

Al though thi a is

registered 'land, neither the date of regi.tration n~r the date of applicati~n
f6r regi atrati OD is much pide, for the laud was formerly karu land, whi eh,

to f'aci li tate cui ti vati on, was expropri ated by the Sudan Government and, aft er

being split up into regular ahaped hawaahaa, was reallotted to the original

   owner. on long leave.       This, of course, p~t a great deal of work on

the Land Registry and aalea, SUch as the~e, could not be registered on demand                                          .

   as the·aIYotmenC-to-_'the-Tendor_h.ad. Dot·been registered. It i. therefore

for the Court to decide a. a fact whi eh of these two salee was the fi rat in
time.

The burden of proof 'Was in the first place on plaintiff to show that his

purchase from Sittana was before tha~ of Omar II Hag trom um K.ltoum. He

hils been able to .hi ft that burden by .howing that the date of hi s nati ve
deed of sale and the date of his eventual registration were prior in time to

those of Olllar 1:1 Hag.'Was, in fact, the earlier.

It was then on Omar 11 Hag to prove that his sale'
In the District Court he was successful, for

he called evidence thet he had both paid' for and, through oue Mohamed Fadlalla,
ta~en possession of hi s land pri or to the date of plai nti ff' s nati ve deed of
sale.

Before this Court plaintiff has alleged that, ill fact, he paid for his
land lOllg before in Omdul'Inall, snd entered into posseasion through one Saleh

   Ahmed Il'RufaL His deed of sale being held up till he visited Metemma,

and was able to execute it before the vendors relations.

Plaintiff further