Case No.:

(AC-Revision-77-1960),

Court:

Court of Appeal

Issue No.:

1960

Principles

·  LanIaw-Prescriptiofl-Adverse possession-Prescription and Limitation Ordinance. s. 4 (3)-When applicable—Fiction of lawful origin

By a settlement decision of 1910,5 Kirats and7 Sahms in Sagia 13 Gira Bana were registered in the name of plaintiffs’ predecessor in title (Musa) and 7 Kirats and 6 Sahms in the name of defendants’ predecessor (Ali). For a long time and up to Ali’s death, Musa was in possession Of 7 Kirats instead of  his 5 Kirats and 7 Sahms. Shortly after All’s death, his heirs claimed the 1 Kirat Sahnis held by Musa, but the latter disputed their claim. After Musa’s death they also claimed from his heirs who, in their turn, denied the claim alleging that the land was sold to their father by virtue of a sanad that was then lost. Musa’s heirs instituted a suit in Merowe District Court claiming a prescriptive title over the land in dispute, but their claim was dismissed on the ground that they were debarred by Prescription and Limitation Ordinance, s. 4 (3) from claiming the land by prescription in view of the relationship of the parties precluding adverse possession.
The Province Judge reversed this decision on the ground that the possession of claimants was too long to be defeated by section 4 (3)
 On application for revision to the Court of Appeal,
Held: (i) Section 4 (3) was applicable and it debarred plaintiffs’ c1aim to a prescriptive title to the land in dispute.
(ii) Heirs of Hassan Mohamed Ahmed Fadlalla v, Heirs of Mohamed Fadlalla (1956) S.L.J.R. 88 distinguished on the following grounds:
(a) There was no acquiescence by defendants in plaintiffs’ possession since, shortly after their father’s death; they diligently pursued their claim to the land in dispute.
(b) The land in dispute was only a fraction of the land of the whole Sagia. The defendants’ predecessor might have parted with possession to his brother (plaintiffs’ predecessor) out of sheer fraternal sympathy, as was in fact alleged by defendants

Judgment

(COURT OF APPEAL)

HEIRS OF ALI MAHMOUD ALI v. HEIRS OF MIJSA MAHMO

(AC-Revision-77-1960),

Revision

The facts are set out in the judgment of B. Awadalla J.

Advocates: Mohamed Ziada……… for applicants

                   Mirghani El Nasri……. for respondents

November1, 1960 B. Awadalla J.: —This is an application against the judgment of 1-lis Honour the Province Judge Darner reversing the decision of the learned District Judge Merowe in CS/297/58. The daim relates to

• Court: M. A. Abu Rannat C.J., B. Awadalla J.

one Kirat and 5 Sahms in Sagia 13 Gira Barra, Merowe District which the respondents (plaintiffs in the Suit) Heirs of Musa Mohamed claimed by purchase and prescription.

Applicants (defendants in the suit) are heirs of Ali Mahmoud the brother of Musa Mahmoud. By virtue of a settlement decision in 1910, 5 kirats and 7 sahms were registered in the name of Musa and ‘ kirats and 6 sahms were registered in the name of Ali Mahmoud in the above Sagia but it seems that for a very long time the land was held separately by the two brothers, Musa being in possession of seven kirats instead of only five kirats and 7 sahms. All Mahmoud died about twenty years ago, and shortly after his death his heirs claimed the land in dispute from their uncle Musa, but the latter refused and the heirs of Ali complained to the local Branch Court, which referred the matter to the Sheikh of the locality. No decision seems to have been made and meantime Musa died. Not unnaturally, his heirs continued to dispute the claim of the heirs of Au and at last were advised by the Sharia Court to take the case to the District Court.

Before the District Court, the respondents claimed that their father acquired this land by purchase from his brother in 1912 and since then was in possession without interruption. They contended that the sale was made by sanad, which was burnt, and relied on prescription. Applicants did not dispute possession but denied the sale and claimed that their father Ali gave possession of the land to his brother Musa because the former was financially incapable of cultivating his whole share. The learned District Judge found that plaintiffs (respondents) were debarred by section 4 (3) from claiming the land by prescription in view of the relationship of the parties precluding adverse possession.

Respondents applied to His Honour the Province Judge who reversed the decision of the learned District Judge on the ground that the possession of claimants was too long to be defeated by section 4 (3) of the Ordinance, and it is against this decision that the present application to this court was made.

Before us, advocate Mohamed Ziada represented applicants and defendants by advocate Mirghani El Nasri. Advocate Ziada relied on the ground given by the learned District Judge Merowe and advocate Nasri contended that this case is on all fours with Heirs of Hassan Mohamed Ahmed Fadlaila v. Heirs of Mohamed Fadlalla (1956) S.L.J.R. 88 in which the Court of Appeal held that where actual possession has been proved for a reasonable length of time the court has to presume that possession originated in an actual grant from the original owner and section 4 (3) of the Prescription and Limitation Ordinance does not apply.

In our view that case was never intended to repeal the very valuable provisions of section 4 (3) of the Prescription and Limitation Ordinance which were no doubt enacted primarily to protect derivative po and prevent abuse of confidence. The case cited simply follows the theme of the Ordinance that extreme length of time can in certain cases operate to prevent a registered owner from contending that the possession of claimants was otherwise than original. In that case, claimants were in possession for a considerable time of the whole share which the owners inherited from their common ancestor, and the court rightly assumed that the strict acquiescence by the owners with full knowledge of the rights of which they were deprived was tantamount to an admission by them that their opponents’ possession had a lawful origin. It is in this sense that the approximation to the English fiction of lost modern grant was made. The Honourable the Chief Justice in his judgment said:

“The respondents were present all this long time in the same village where the land is situated. They failed either to retake physical possession or raise a civil suit in the courts to claim their rights. This proves that the respondents had knowledge of the acts by the applicants and that they had a power to stop the acts or to sue in respect of them, and there was an abstinence on their part from the exercise of such power.”

But the present case differs in two most important aspects from the case cited by applicants. In the first place the land claimed by the respon dents is only one-sixth of the applicants’ land and abouf one-sixteenth of the whole Sagia. It is therefore quite feasible that the owner might have parted with the possession of that part of his holding to his brother out of sheer fraternal sympathy as applicants did contend in the District Court. Both DW.1 and DW.2 claim that their father left this part of his land to their uncle (father of respondents) on the one hand because iheir father was financially incapable of cultivating the whole lot and on the other because their uncle brought some “agaweed” to induce their father to leave him the land until their father’s financial position improved. A man can be believed to say that family considerations drove him to part with possession of a comparatively small part of his land; but it is difficult to believe, in the absence of proof, that out of sheer benevolence he would completely impoverish himself to enrich others.

In the second place, the facts of this case differ from those in Fadlalla’s case in that here there was no acquiescence. From a short time after the death of their father applicants have been very diligent in trying to recover the land in dispute. DW.3, the Omda of Karamakoul, and an entirely independent witness, says that applicants have applied to the Native Court at Karamakoul for delivery of possession of that land, and that they were referred to the Branch Court. Even as late as 1958 (i.e., shortly before institution of this suit) they tried to recover possession by getting in the whole of their father’s estate through the Sharia Court. DW.3

states that it was only through the intervention of the Sharia Kadi that the respondents were driven to bring this case to the District Court.

These then are the circumstances distinguishing this case from Fadlalla’s case, and it was no doubt because of the peculiar facts of that case that the Honourable the Chief Justice said in the penultimate paragraph of his judg ment. “These facts show that the possession by the applicants was of right and I cannot imagine a stronger case of adverse possession than in this case.”

We are therefore of opinion that there is nothing in this case preventing the operation of section 4 (3) of the Ordinance and that the learned District Judge was right in dismissing the respondents’ claim. This application is therefore allowed with costs and the decision of His Honour the Province judge is hereby reversed.

M. A. Abu Rannat C.J. —l concur

                                               (Application allowed)