Land Law-Usufruct-Whether applicable when Government has absolute
ownership

• Court: Halford J .

•• Court: Bell C.J., Owen and Hamilton-Grierson JJ.

Limitation of Actio~Fifteen 'years rUle-A4miJtratiVe Regulatio1ll ruk tip- .
plied-s-Time of cause of action arising can be before publication date of .
Administrative Regulations

When the Government acquires land in 1905 under the Land Acqui-
sition Ordinance 1903, and publishes a declaration to that effect, any claim
is barred by the limitation of actions rule found in the Administrative Rep-
lations when the claim is not raised until 1923. Further; since the Gov-
ernment therefore acquired absolute title in 1905, the rules of usufruct
found in the Civil Code of the . Egyptian Native Tribunals are not ap-

                 plicable. -                                                                             

Bank of Egypt, Ltd. v, Administrator of. the ~state of Surial Saad and
Elias Debbas AC-APP~38-1916; 1926 Digest 37.

Emmanuel Saad v. Elias Debbas and Gabra Hanna AC-APP-37-1917,

 Land ACquisition Ordinance 1903, ss. 7, 9. and 29.

                 Egyptian Civil Code, s. 204.     

Egyptian Civil Code of Native Tribunals, ss. 27, 28, and 29.

Action

December 10, 1926. Halford J.: The plaintiff Emmanuel An-

-tanios Saad purchased through his father, Antonius, under Ilamat S2
and 186/1904, 'a; plot. of land numbered 321 in the Mudiria land
Office, of an area, of 2 [eddans, 7 kirats and 8 sahms , situate at the
Mogren, from Awlad EI Hag EI Garkok for the sum of £E.13.

This plot has been identified as forming part of a block of land
acquired by the Government in 1905 under the land Acquisition. Ordi-
nance 1903, the prescribed declaration relating thereto having been
duly published in Sudan Government Gazette No. 75 and dated

       13th April, 1905. .                                                    .

In January 1923 plaintiff instituted these proceedings against the
Government claiming £E.9754 compensation alleged to be due to-him .
at the jate of £E.1 per square metre on 9754 squaremetres repro-

      sentit)~f the superficial area of his plot. '.

He bases his claim on the allegation that he never received the
notice prescribed by' section 7 of the Land Acquisition' Ordinance. of
1903 nor was he compensated. He .admits that he-took no steps, to
assert his rights until the date of his petition'

The Government contends that plaintiff's claim is barred by lapse':
of time; . that although there is no evidence that plaintiff receiv~

compensation, it must be assumed that the provisions, of the 1903 Ordi-
nance were' complied with in their entirety 'and that it is for the, plaintiff
to rebut this presumption.

The Advocate General for the Government puts in a voluminous
file from which it appears briefly that:

, (1) Plaintiff's father received compensation in respect of land
acquired by the Government under the same declaration of
1905 although there is no evidence that plot 21 was com-
prised in those in respect of which compensation was paid.

(2) Sir Wasey Sterry recollected that compensation was fixed by
a commission at the rate of £E.8. per .ieddan for the land
acquired by the Government under the, declaration, against
which Antonius Saad '(plaintiff's father) had objected.

(3) The Mudiria Land Office Records showing the history of plot
321 taken over by the Land Registry in 1909.

Both parties are agreed that the preliminary issue of limitation of
action shall be first determined. The Advocate General relied on the
15 years rule, referred to in the Administration Regulations, page 86,
and contends that this is a stale claim.

Plaintiff admits; so far as it is possible to understand' him, that a
15 years old claim is barred by the practice of the courts but argues
that the period can only run 'from 1910 fo~ the two reasons tJ.tat:

( a) The Government did not enter into possession till that year,
although he admits he is not in a position to prove this; and

(b) The Administrative Regulations were published then and are
not retrospective in effect.

He also maintains that the Administrative Regulations provide
that in such cases the Civil Code of the Egyptian Native Tribunals is the
law applicable and argues that under sections 27, 28 and 29 'Of this
Code," the Government as usufructuary has not only been responsible
for "improper uses of the premises but has failed to fulfill the purposes

, jor which the land was acquired; apparently in the alternative' he main-
/ tains that by reason of non-use by the Government, 'the usufruct has
lapsed which entitles him to re-entry.

He appears to base his contention that the Government was a
usufructuary and not owner on the ground that .it failed to comply with
the provisions of sections 7, 9 and 29 of the 1903 Ordinance.

There is no substantive law in this country by enactment in the
matter of the limitation of actions, but the invariable practice of the
courts has been to follow the rules indicated by the Administrative
Regulations. These rules are based on the Egyptian Civil Code and
although it has been held by the Court 'of Appeal that the courts are
not bound to apply the 15 years rule in every case which does not
come within one of the shorter periods mentioned in the Administrative
Regulations (cf. AC-APP-37-1917 cited in the Digest pages, 35 and
36), yet the provisions of the Code will be applied in a proper case
(cf. AC-APP-38-1916 cited in the Digest at page 37).

The maximum period which an action can lie is clearly' contem-
plated at 15 years as the prescriptio longissimi temporie and I do not
propose for the purpose of the determination of this issue to decide
whether a shorter period is applicable to the circumstances of this
case for the good reason that it is obvious on his admissions that the
plaintiff has largely exceeded the maximum limit. I agree with the
contention of the Advocate General that under these circumstances a
presumption of discharge; is created in favour of. the Government
(Egyptian Civil Code, sec~ion 204).

The necessary assumption after a lapse of 18 years is that the
provisions of the 1903 Ordinance were complied with, and I refuse to
accept the plaintiff's sworn evidence, which he proffers, to a cont effect.                                                                                   .              .                   .

The proper and in fact only inference which can be ctfawn' is .
that the land acquired vested in the Government under section 23 of .
the Ordinance in or about the year 1905: Sir Wasey Sterry's statement
goes far to confirm this inference as a fact. .

This being so, the Government became absolute owner, and not
usufructuary a~ the plaintiff contends, and entitled to use the .land as
it pleased. Under these circumstances it is unnecessary' to deal. with .
plaintiff's arguments based on Sections 27, 28 and 29 of the Code.

 tam decidedly of opinion that the rules of the English law of
limitation cannot be applied by this court; if applicable, they would
be to a still greater extent adverse' to plaintiff's case; while his argu-
menf that the period should run from the date of the publication of the
Administrative Regulations is puerile; many claims have been.dismissed
by this-court as stale in which the cause of action 'arose at a date long

        prior to such publication.                 

. I have no hesitation in holding that plaintiff's claim is stale and
barred by lapse of time. It will be dismissed.

In my opinion the action from its inception was of a frivolous
and vexatious nature. The plaintiff will accordingly pay the full scale
percentage fees on his claim of £E.9754 as well as the costs of the
Government.

Action dismissed

Appeal

February 13, 1927. Bell C.J.: After stating the facts' already
given by Halford J. continued:

It remains to examine the arguments put forward by the appellant.
He contends that the provisions of the Land Acquisition. Ordi-
nance 1903 were not carried out and that therefore, the acquisltlon
and occupation of the land by the Government was wrongful ab initio.
This being so the land is still his and' he is entitled to delivery of it.
The answer to this is that it must be presumed that all the necessary
formalities were complied with. The burden of proving illegality lies
upon the appellant. No evidence to this effect has been produced and,.it
is obvious that after such a lapse of time it would be exceedingly'
difficult to produce any evidence of value.

, Quite apart from the question of acquisitive prescription by the
Government the appellant's claim in trespass has to stand or fall by
his success or failure in proving illegality.

No illegality has been proved and the result is that the land
vested in the Government absolutely under section 23 of the' Land
Acquisition Ordinance 1903 in or about the year 1905. The Govern-
ment being the owner of the land all reference to sections 20, 27, 28
and 29 of the Egyptian Civil Code which relate to usufruct is eQ.tirely
irrelevant.

The appellant next asserts that he was never "paid any compen-
sation. Even allowing to the appellant the- longest periq,d of pre-
scription, namely 15 years', it is obvious that his claim is barred. For,
his right to compensation accrued in 1905 or tl\e~abOufs and his firIi

. claim was made in 1922. ' His argument, that prescription could not
begin to run until 1910 because the. rules of prescription -were ,not '
published until that year is fallacious. The 'rules to which -he refm
merely declared the law for the, guidance of ~'courts. There Wa;l".