Case No.:

AC.REV.25o-1962

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Civil Procedure—Limitation of actions—Civil Justice Ordinance s, 56 (d)—Appellate court may dismiss statute-barred action though issue not raised below

·  Civil Procedure—Limitation of actions—Running of period—In action against father’s estate for value of buildings built on father’s land, period begins when right to use contested

Plaintiff built on his fatherland before his father died. When the father’s estate was administered 10 years after his death, plaintiff claimed the money he spent on the buildings. Although not raised in the District Court, the question arose in the High Court whether plaintiff’s claim was time-barred.
Held: (i) An appellate court can dismiss a claim on the grounds that it was statute-barred even though the issue was not raised below. Yassin El Gaily v. Mohamed Abdel Hag (1960) S.L.J.R. 217, 218.

(ii) This is an action for compensation to a usufruct for the value at the date of  istribution of the buildings he built, and has a five-year period of limitation.
(iii) Although the right to compensation to a usufruct for the value at the date of distribution of buildings he built accrues at the time of the death of the father, time does not begin to run under the Prescription and Limitation Ordinance 1928, while the son continues to enjoy what was his usufruct until the son’s right is contested by his co-heirs.

Judgment

                                                (COURT OF APPEAL) *

                      HASSAN SID AHMED v. HEIRS OF SID AHMED HASSAN EL TOM

                                                             AC.REV.25o-1962

Advocates: Ahmed Suleiman .. for plaintiffs-applicant

Hassan Dirawi…. for defendant-respondent

Babiker Awadalla 1. February 12, 1963 is application against the decision of His Honour the Province Judge, Khartoum, reversing that of the learned District Judge, Khartoum North, in CS-I343-1959

The facts of the case are simple. Applicant, plaintiff in the suit, is claiming a sum of £S. being money spent on buildings constructed by him on plot No. 12. BK. 3 M.C., Khartoum North, registered in the name of his father, Sid Ahmed Hassan El Tom. The said buildings are alleged by applicant to have been built some time between I94 the date of the lease, and 1949, when the father died. The father, according to applicant’s contention was a poor man who was supported by applicant himself. After construction, the house was occupied by all the family. Respondents are the brothers of applicant who used to occupy the house together with applicant and their deceased father.

In the administration of the estate before- Sharia Court, applicant claimed the amounts he expended in building the house but respondent5 refused to recognize his right.

The suit was disputed and issues were framed as appear at p. 7 of the record.

After hearing the evidence, the learned District Judge gave judgment for applicant-plaintiff for a sum of £S.39o and costs.

Respondents applied to the Honourable Judge of the High Court and the case was dealt with by Salah Hassan, Province Judge. He allowed the application on the ground that the claim was time-barred, and set aside the decision of the learned District Judge. Hence this application.

The learned advocate for applicant contends that His Honour the Province Judge ought not to have invoked the Prescription and Limitation, Ordinance so long as the point was not pleaded in the court below. This is not correct, for the rule of Sudan law governing the point, as applied, by this court in Hassan Abdel Rahman V. Ali Kambal AC APP 12 I949 is that an appellate authority can dismiss a claim on the ground that it is statute-barred even though the point was not taken before the court below.

The point for consideration by this court now is whether the cause of action in this case is statute-barred. The general rules regarding limitation of actions is that the period of limitation preventing the prosecution of a cause or matter commences from the date on which the right of action accrued to the person claiming such right. This rule received recognition in our Prescription and Limitation Ordinance 1928. s. 8. It is therefore important for the decision of this case to determine two points, (a) what was the cause of action in this case and (b) when did it accrue. I will deal with these two points in their order.

As regards the first point, the matter does not seem to me to be an easy one. Applicant was not represented in the District Court and the short petition written by him personally reads as follows

“AS I had spent £S.400 on the house shown above which was registered as a leasehold in the name of my father who died in 1949, and as I have not been involved in a dispute with my brothers who do not admit that it was I who built the said house out of my own funds, and as. I have evidence to prove that I incurred the whole cost of construction since 1946 and had been occupying the said house with the rest of the family until the death of my parents and until new, I beg leave to institute a civil suit.”

As appears from the petition, it is not clear whether what applicant was claiming was the money he spent on buildings or simply a declaration by the court that he had an interest in the house apart from that passing to him by inheritance. However, when examined on oath at p. 7 of the record he stated that he was claiming the value of the buildings, i.e., the sum of £S.4oo. He does not say on what grounds he thinks he is entitled to a return of the money he had spent. The exact circumstances under which he incurred the expense are not clear and one has therefore to try and determine the matter in accordance with the general principles recognized in this country regarding similar situations. In the case of Heirs of Mohamed Ahmed Abu Shanab and Others v. Ahmed Mohamed Ahmed Abu Shanab, AC-APP-i 1-1944, the facts were almost similar to those in the present one save that the land in the case referred to was freehold and not leasehold. The judgment of the court was written by Chief Justice Bennett who dealt with the point at great length and with such lucidity that I find myself compelled to quote the relevant j thereof in full. At pages 5 and 6 of the judgment Chief Justice Bennett said:

“We have now to consider what are the legal consequences which flow from the findings of facts that the respondent erected some of the rooms in question in his father’s hosh, with the latter’s permission but at his own expense. In the partial settlement in regard to the rooms included in Class i and throughout the judgment and decree of the learned District Judge, those legal consequences are expressed to result in the ownership of the buildings in question. I cannot help feeling that that was merely loose phraseology and was not intended either to confer all the incident of ownership or to recognize that as a result of such an arrangement the ownership of the soil on the one hand and the ownership of the buildings on the other became vested in different persons. I do not say that such a result is a legal impossibility, but I do say that it is not to be inferred from the mere granting by a father of. a son’s request that he be allowed to erect a house for himself at his own expense in his father’s hosh. When such a request is made and granted, both father and son must be deemed to have in mind the position that will arise on the decease of the father, namely, the ultimate partition of the hosh between his heirs. If the father desires to secure to the son the permanent possession of the part of the hosh in question, it is open to him to make a gift to the son of the land in question. If he does not do so, the inference is that he does not wish to prejudice the division of the hosh in the ordinary way upon his death. On the other hand, it is to be inferred that the father wishes to confer some rights on the son in regard to the buildings; he will not expect the son to expend money in erecting the building if the father is to he in the position to turn him out the next day; nor will the father or the son contemplate that if the father dies immediately after the completion of the buildings that the son’s expenditure should be thrown away and enure solely to the benefit of the estate; nor, as it seems to me will either party contemplate that the son should be in a position to dispose of the buildings so as to introduce a stranger into the hosh. I think also both parties will contemplate that, so far as the same can be achieved without prejudice to the other heirs on the death of the father, the son will have an opportunity of receiving the land on which the buildings stand as his share of his father’s hosh.

“Bearing in mind these factors which, I think, must necessarily be contemplated by both parties to such an arrangement. the legal consequences which follow, apart from any valid and certain custom which may be applicable, appear to me to be as follows:

(a) During the lifetime of the father, the son receives a personal usufruct in the buildings so erected;

(b) On the death of the father the usufruct ceases and the son becomes entitled to receive compensation from his father’s estate for the value of the buildings at the date of distribution;

(c) The father’s estate becomes entitled to discharge the obligation to pay such compensation by the allotment to the son of the buildings in question and of the soil upon which they stand, subject of course to the payment by him of the value of any such land which exceeds his legal share; and

(d) So far as the same can be achieved without substantial prejudice to the rights of the other heirs, the son becomes entitled to have the buildings allotted to him in lieu of compensation and the land on which they stand allotted to him as his share of the hosh.

“The personal usufruct ceases on the father’s death. The con sequences mentioned in (C) and (d) above are the matters to be taken into consideration and so far as practicable enforced in the course of the administration and partition of the hosh by agreement by the Sharia or other court having jurisdiction in the administration of the estate or failing agreement by the civil court in the partition suit which must ultimately follow.”

Applying the above principles to the present case. I think it would be clear that the cause of action in this case is one of compensation for the usufruct terminated by the death of the father.

I now come to the second and not less difficult point of when such cause of action accrued to applicant in order to determine whether or not his right of action was barred by lapse of time. In my opinion, although applicant was entitled, immediately on the death of the father, to receive the money spent by him, such right continues to be indefeasible so long as it is not challenged by the heirs and the son continues to enjoy what once was his usufruct. This is because until that time the intentions of the other heirs as regards settling the matter would not be clear. They may wish to discharge their obligation in one or other of the alternatives outlined in the judgment above referred to. Once a dispute arises and the son’s right is contested, then a right of action accrues and time begins to run under the Prescription and Limitation Ordinance.

In the present case, the father died in 1949 and the estate was administered 10 years later, i.e., in 1959. The record is silent as to what was happening in the interval. The right may have been contested immediately on the death of the father or at any rate more than five years before administration of the estate, and this has to be made clear before a decision as to the question of limitation can be given. Incidentally, the claim here is one for money and not for an interest in land because the usufruct ceases on the death of the father and the son becomes merely entitled to compensation.

In my view therefore this case should go back for a retrial with a view to determining the point as to limitation. The judge should frame only one issue as to whether the cause of action for compensation was barred and in doing so he would have to receive detailed evidence of what was going on between the heirs in the 10 years preceding the administration of the estate. If there was a dispute between them regarding applicant’s claim, it will run against applicant from the date of that dispute.

This application is therefore allowed with costs and case referred back for a retrial in the light of the above directions.

M. A. Hassib, Acting C.J.: —l concurs.

* Court: M. A. Hassib Acting C.J. and B. Awadalla J.