Case No.:

(HC-CS-150- 1959)

Court:

High Court Khartoum

Issue No.:

1960

Principles

·  Land law—Land held under Government lease—Prohibition to transfer without consent of the Governor—Such consent may be requested by the Court Ifl order to decree specific performance Civil practice and procedure—Specific performance, circumstances for granting

Where the purchaser of land under a contract has been put to special expense, e.g.. In constructing a building on the land in question, mere damages are not usually a sufficient remed and the court will if at all possible grant adecree of specific performance. Where the Governor’s consent is necessary for a transfer of title in land, this is not a mere formality (Sabila Fad! v. Ahmed Abdalla Abmed (1956) S.L.J.R. 62 followed), hut the court may itself request such consent, at any time before a decree is passed, if this is necessary in order to enable it to grant the proper remedy of specifi performance.

Judgment

                   (HIGH COURT, KHARTOUM)

EL KHIDIR EL HAG OMER v. ALLA MAANA FARAR MASSOUD

(HC-CS-150- 1959)

Action

Advocate: Haroun Shawgi - - - - for defendant

May 4, 1960. T. S. Cotran Acting I.: —The facts as I believe them to be are as follows: Plot 14 Block H. Burn Darraisa is registered in the name of the Government and leased to the defendant for a period ending on December 31, I975 On June 21, 1958 the defendant purported to sell the plot to the plaintiff for £S.50, £S.25 to be paid immediately and the balance on registration. A document, Exh. P.2 was drawn up between the parties. The defendant, who was represented by an advocate, did not go into the witness box nor were any witnesses called on her behalf. I find as a matter of fact, that the agreement between the parties was a sale. Ihere is not one iota of evidence to substantiate the defendant’s allegation in her statement of defence that the £S.50 were loaned to her son by the plaintiff and that she only mortgaged the plot as security for the debt. The plaintiff paid the defendant the balance of the price, and then constructed buildings on the plot in question. When the defendant failed to register, the plaintiff brought this action asking for specific performance, or alternatively damages for breach of contract.

The plaintiff, who was the purchaser of the plot, either at the time of sale or shortly afterwards must have realised that the sale, to be effective, must have the sanction of the Govern of Khartoum. He and the seller went to consult the Sheikh of the Hillat, Abdul Rahman El l--laj Ahmed (PW. 3), who is also a lay magistrate on the Khartoum Town Bench. The Sheikh of the Hillat explained to the parties that Government leases cannot be transferred without the consent of the Governor. In the opinion of the Sheikh if the lessee of the plot constructs a building thereon he can register the plot in his name in the Land Registry and he can subsequently sell the building. In that esent it will not be necessary to obtain the (oflsent of the Governor of Khartoum. The consent is needed only when the land is sacant that being the view of the Sheikh, and in order to t. effect to the intention of the parties, he wrote or caused to he written the memorandum at the bottom of the saie agreement which is to the effect that the plaintifl will build on the plot himself: and that sshen it is finished it will be registered in the defendant’s name, and that the defendant, will hen undertake to t ransfer t hr house to him (Exh.p.2).

There is not the slightest doubt that the defendant is in breach of this agreement, and I propose, if possible, to grant the plaintiff specific per formance. The Natives Disposition of Lands Restriction Ordinance, 1918. S. 2, provides:

“(i) No native of the Sudan shall sell, mortgage, charge or otherwise dispose of, nor agree to sell, mortgage, charge or otherwise dispose of any land or any right or interest in or over the same, unless with the written consent of the Governor of the Province within which such land is situated;

(2) Provided always that such consent shall not be required to a devise by will or a lease for a period not exceeding three years;

(3) Provided also that a native of the Sudan may enter into a written agreement bearing the date on which the agreement is made to sell, mortgage charge or otherwise dispose of any land or any right or interest in or over the same made subject to the written consent of the Governor being applied for within one month of the date of such agreement.” Section 4 provides:

“Every sale, mortgage or other disposition by a native of the Sudan of any land or any right or interest in or over the same and every agreement for the sale, mortgage, charge or otherwise disposi tion of the same (except a devise by will or lease for a period not exceeding three years) to which the consent in writing of the Governor has not been expressed or is not subsequently expressed under sections 2 or 3 of this Ordinance shall be null and void.”

The Court of Appeal decided in Sabila Fadl v. Ahmed Abdalla Ahmed (I956) S.L.J.R. 62, 63 that the consent of the Governor was not a mere formality. But there is nothing in this judgment to show why the court itself should not, under section 3 of the same Ordinance, write to the Governor asking him to give his consent to the transfer. If he does, a decree of specific performance will be issued. In my opinion damages cannot in this case be an adequate remedy though, of course, if the Governor withholds his consent, the court will proceed to assess those under the proviso to section. Here the plaintiff has built on the land and is now living in the house which he built. It would not be fair to oust him. Section 3 lays down:

“Notwithstanding the provisions of section 2, the Governor of the Province may in his discretion give his consent in writing at any time …”

In my opinion. “At any time” means what it says. i.e.. At any time before a decree is passed.

For these reasons I direct that a letter be sent to the Governor, Khartoum

 Province, as follows:                                                              URGENT

The Commissioner

Khartoum                

   Sir,

On June 21, I958 the defendant Alla Maana Farah Massoud who is a lessee from the Government of Plot 14 Block H. Bum el Darraisa sold the plot to the plaintiff, El Khidir El Hag Omer. Your consent as required by section 4 of the Natives Disposition of Lands Restriction Ordinance, 1918, was not obtained at the time. Both parties were not, in my opinion, fully aware of the law. Both of them are natives of the Sudan. The plaintiff has now built a house on the land and he occupies it.

Under section 3 of the same Ordinance you may at any time give your consent to such a sale.

I shall be much obliged if you will indicate to me whether you consent to such sale or not.

If you do not I shall be most obliged if you will assess or cause to be assessed the value of the buildings erected on the said plot by the plaintiff..

(Signed)

T. S. Cotran,

      DISTRICF JUDGE, HIGH COURT,

       KHARTOUM CIRCUIT.

May 4, 1960.

The Commissioner, Khartoum, vide his letter Number C.K./Lands/38 G. 2.4/2 dated May 12, 1960, has now approved the sale of the above plot to the plaintiff El Khidir El Hag Omer on payment of a premium of £S.3o to the credit of Khartoum Province (Khartoum Town Premium Reserve Fund).

I therefore, for the reasons that are mentioned in my order of May 4, 1960, do order the specific performance of the contract between the plaintiff and the defendant made on June 21, I958 and order that on plaintiff paying £S.3o premium to the Khartoum Province (Khartoum Town Premium Reserve Fund), plot No. 14 Block H. Burri Darraisa be registered in plaintiff’s name.

The defendant to pay the cost of this action.

(Judgment for plaintiff)