(COURT OF APPEAL)

AMNA OMER HUSSEIN V. BESHARI HASSAN EL MALIK AND OTHERS

AC-REV-511-1964

Principles

Land Law—Native lodging area—It is tenancy at will and does not create a right or interest in the land

Native lodging area is included within the boundaries of the municipality and divided by the Government into plots and allotted to individual citizens. allowing them to construct therein temporary buildings and occupy. The legal position between the Government and the allotees creates what is known as a tenancy at will, which does not by itself create a right or interest in land.

Advocate El Hadi Saleem        for the applicant

Judgment

Osman El Tayeb J. November 20, 1966 —This suit concerns the plot known as No. 163 Deim Musa, Port Sudan Town, which is shown in the Municipality records to have been allotted to one Alawia Musa. The said allottee died in about 1958 Plaintiff who is the mother of the decease4 Alawia and one of her heirs, instituted a suit against her co heirs in which she alleged that she had built, in or about 1952 a sandaga ( room built of timber) and a kitchen; that she had occupied that plot ever since until 1958 when she was evicted. She applied for a declaration that she is entitled to ownership of the sandaga and kitchen and compensation for the eviction, assessed at the rent of £S.10.000m/ms. which she paid for another house. She also claimed the sum of £S. I 7.520ms/ms. alleged to. have been paid by her in respect of local rates for the same house. The defence was that the sandaga and kitchen were built by n provided by deceased, and also that the local rates were paid by her. The claim was accordingly denied in toto.

The learned District Judge heard- the evidence and found that the money spent on the buildings and on the local rates was paid by plaintiff out of her own funds. He granted her the declaration sought for ownership of the buildings. He decided that the local rates were money had and received and recoverable by plaintiff and he so ordered. He, lastly, decided that plaintiff was wrongfully evicted; and in her capacity as a co-owner, by virtue of being a co-heir, she was entitled to occupation or to a share in the rent of the house in dispute; and in the result she has to be compensated the rent she -actually paid for hiring another house for her occupation

An application for revision to the learned Province Judge was dismissed by him on the grounds (a) that the statement of claim was not complying with the Civil Justice Ordinance, s.55 , and (b) that the plot in dispute lies in the native lodging area, and that it was allotted on conditions, the most important. of- which is that upon the death of the allottee the Commissioner has the right to retake possession or to transfer it to one of the heirs. It was added that the court did not consider these matters.

Before this court appeared advocate Gamal El Din for the plaintiff, and one of the defendants appeared for himself and on behalf of the others. On the first point about complying with the provisions of the Civil Justice Ordinance, s.55, we agreed with the advocate that there was no serious deviation and the statement of claim was not had. The second point is of great importance; it is about the nature of the interest: which both parties have in the plot in dispute.

The area in which the house in dispute exists, whether it is called native lodging area or Deims, is- an area included within the boundaries of the Municipality but not classified under the Town and Village Planning Act Such an inclusion in the Municipality must have bee followed by a land settlement in order to establish the ownership of the Government to it. The Government divided it into plots and allotted them to individual citizens, allowing them to construct therein temporary buildings

- and occupy. No tenancy agreement was made, prepared and executed by the parties, i. the Government and the allotted.

The legal position between the Government and the allottee is, it seems to me, what is known in English law as a tenancy at will. The main features of this ten are that (1) it is determinable by the lessor at any time without notice; and (2) it is de by the death of the lessee. In either case the lessor generally allows the lessee or his legal representative to remove anything of value found - on the plot. The tenancy at will, being as described does not, by- itself, create a right or interest in land that has to be protected by law for the protection- afforded to a person in possession as- against trespasser.

In this case plaintiff is asking -for declaration :to the effect that she is entitled to the ownership of ‘the sandaga in the- plot; more appropriately put that she is entitled to possession of the sandaga. On asking the learned ‘advocate ‘of plaintiff what would be the outcome of that declaration he replied that on the strength of it plaintiff’ would be -‘entitled to return to occupy the sandaga as she is intending to do. He means to say that plaintiffs by being allowed by the allottee to build the sandaga and to occupy it, acquired an interest or right in that plot, viz, a right of occupation. This is based on a misconception of the nature of the tenancy. The tenant against whom plaintiff is trying to assert a right of occupation had, before her death, - a i1tnii and restricted right of occupation that—was ot capable of being transferred or alienated. So also is the position the same with regard to the defendants, the heirs of the deceased allottee. They have no right in the plot devolving on them by succession since the tenancy to the deceased tenant has automatically, been determined by her death; and if the Government, the lessor, allowed them to remain in occupation it means that they have become tenants at will.

The learned advocate for plaintiff argued that the Government is not taking any steps to determine that tenancy, and has been allowing it to Continue for many long years, and so is the case with the present plot. This is immaterial since the question is whether the tenancy has remained a tenancy at will or has changed to another kind of tenancy that would have created an interest or right in the land. He made no submission

in that direction.

- If we can give plaintiff any right, I should think that it is - her right to enter and remove the sandaga and kitchen built by her, and take their timbers. A declaration for possession that would permit her to go into Occupation has no legal support and it cannot be made. Secondly, the sums of money that plaintiff -paid for local rates and rent to the Municipality were paid during her occupation of the plot, at the time when the authorities - were looking to her- as the tenant. It is not clear that these sums were paid- by her on an implied contract with the allottee. Thirdly it was said that -plaintiff was entitled to compensation for her wrongful eviction from the plot. There was no wrongful eviction, since she had no right or interest to remain in occupation, as it is explained above.

In conclusion the two decrees of the learned Province Judge and of the- learned District Judge are both set aside; and decree for the removal of the sandaga and kitchen and taking their material away has to be given in - favour of plaintiff, with costs assessed- at £S.5.000m/ms

Salah Eddin J.  November 20, 1966:- I concur.

I entirely agree with the whole -judgment and reasons thereof hut I think there is a gap in the- law and I wonder what would be the legal Position if applicant now, in pursuance of our decree, enters the pr to remove the sandaga and then changes her mind and- decides to -remain there in occupation with the other heirs. That remains to be seen.