ppeal and Revision - Presence of D~rties- Discretion to hear appeals
,·dthout such.

Evidence- Settlement negotiations- Admissions made dUring course of
inadmissible where settlement provisional only and no binding agreement

Prescription - Animus domini - Extent of the requirement of intention to
prescribe- Effect thereon of offer to purchase land made after
prescriptive suit be~.

Prescript.ion - Possession- Interruption thereof - vlhether interrupted:
by Bulh made after suit begun in \'[hich adverse possessors offer to
purchase land. was accepted - \fuether possession was "peaceable" even
though owners of land indicated to adverse possessors that they
disputed the latter's iossession.

Hords and Phrases- "Peaceab'l o . possession."

1. Admissions made during the course of settlement negotiations
are inadmissible wher-e the settlement made was provisional only and
no binding agreement "l<laS made.

2.  intention to prescribe is not necessary, but only possession
in fact accom~ru1ied by the manifest intent of sole and exclusive
dominion. The fact that after a prescriptive suit has been initiated,
the adverse possessor offers to buy the land has no effect on l1hether

he had such intent.

3. No interruption of pos}3essiqiJ. is present wher-e , after a
prescriptive suit was/begun based on teri years prior possession, a

,sulh is JIl8.de in vrh i ch tlze owner-s accept the adverse possessors'

offer to buy the land/ /* Court: Bennet·t, C.J. and J. G. 'Iilavro gordat 0 , Esq.

4. "Peaceable" possession"means that the possession must
neither have been acquired nor maintained by the actual or threatened
use of physical force. Mere proof that the owner-s had indicated to
the adverse possessors that they disputed the latter's possession

is insufficient to warrant a finding the possession "las not "peaceable".

El Tigani Mohed. Mustafav , El Khidir Yllohed. Hag, 2 Sudan La"l Reports
(Civil) (1945). AG-APP-6-l944.

Civil Justice Ordinance 1929, s. 177.

Prescription and Limitation Ordinance 1928, s. 3.

Revision.

"This is an app'l Lcab fon for the revision
of a decree of the Higl_l Court, northern Province, reversing the decree of

the District Court, Merowe, in a suit in Hhich the applicants, the plaintiffs
in the suit I claimed to have acquired the owner-shap by prescription of 8
kirats of land in Sagia No._12 Osly from the defendants, the registered                                                                                        .

Ol-mers thereof. The District Court gave judgment for the plaint iffs on

. the ground that they had proved 10 years pe~ceable, public ~~d uninterrupted
possession, but the record of ·the hearing in the District Court discloses

no reason for .the passing of' the judgment at the close of the plaint iffs'

case and without hearing the witnesses for the defence.

On revision in the High Court, the learned High Court Judge reversed
the decision of the District Court on the ground that the plaintiffs' CI-m
evidence showed that on August 4, 1942, a sulh had been made between the
parties, Under which the defendants' agent agreed to accept LE.15 for the
purchase of the land in question by the plc.intiffs, and that this sulh -,
(Hhich was ad;;litted in evidence by the plaintiffs) operated as an interrup-
tion of the plaintiffs' possession, and also constituted clear proof that
the possession of the plaintiffs prior to the sulh tlas uithout the necessary
intention to prescribe (animus praescribendi).

If the learned High Court Judge .las right in Law , that is an end of
the matter. If he was \-Irong, the case Hill in any event have to be sent
back to the District Court in order that the evidence of the defendants'
witnesses may be heard and duly Heighed and a fresh judgment on the

the presence of the parties ;Jill not be of assistance to this court in
deterr:lbinc the issues of Lav here involved, and since all the fa.cts
relGva~t thereto ~re sot out in the docu~ents end record of the caDO
before t!lb court, -this app'l Lcat i.on CM suitably and properly be dis,osed
of under section 177 of the '~ivil Justice Ordi~2..l1ce.

I cn-nnot help feeline; that, though the fact is specifically noted

in the jUdcmcnt of the District COt-.rt I t he Learned Hiti'h Court Judge must'

have overlooked the compaz-c t i.ve da-tes of t he institution 6f the suit and
the :'.:"::i,ittecl cul.h , l.-r::~ ::uit '.:.2.0 bctitt!t,;d cort.:-.inly not later than
I,u.:cc:'l 7 t 1942, uher eas t!w c.d.l:litted sulh uao (as above-stated) dated
.i.UE:;ust 4. 1942, nearly rive mont hs Lc.t er , The 'laintiffs uer-c relying

011 10 :ye.'.r-::. possession Ilrior to the ute of the institution of the suit I
anc if they vrer-e right in their contention, they "lere, at the date of

the inGtitution of the suit, the Oh~er~ of the land in qucstion anc'.. nothing
·t:-.at happened subsequent to that date could const Ltute any interruption

of the ::Q3C,:s~J~on upon '."1hich '~hey relied. I t,link therefore that the
Learned Ili.::;h Court~ Judge ':13.3 1"Il'OilC L'1.1_-.-! in fbdinG that the sulh or
.~u.:.,ust 4,1942, opere-t ed as an interruption of the d f'endant s " poaeeaa i.on ,

I have also the misfortune to differ from him on the second poL~t

upon uh i ch he reversed the decision of the District Court. I think thd.t

the cxpr-eca i on animus lJr<l,c-scri1lendi, if' transla.ted literLlly to mean an
intent ion to prescribe, is mislec.ci.inti and forms no part of the la"1 laid

dorm in t~le Fl'eGcrir.tion end Li;: it<'.tion Crdinance 1928. In the recent

C:::-:0 of :Gl tl'i,fni FO~lC.~ I,lust _ f(v , ::::1 Khitlr Kohed ilai I had occasion to
refer to 1-11~at appears to i.1C to b.. the legal mean ing of the phrase "peaceaol o ,
public end uninterrupted pes seas Ion" in section 3 of the ord tnance , and I
think tha.t tho statement in tllo.t cace that

"fOl' 'the pur-jos e of the ec,-ruisitive prescription of land, possession
rs'.;·· bq_(lefined an pos seus i.on in fact accompanied by the manifest
Lltcn't of 3010 !.;lld excl.uc i.ve d":.iillion"

is t_ correct o::c>ror::GiOll of the 10.11.

1. 3 Sudan Ln.;: Heport::l (Civil) (1944), ;.G-APP-6 •• 1944.

The fact that after a suit had begun a party has entered into a
provisional private settlement of the matters in dispute in the action

does not appear to me to give rise to any necessary inference that his

claim or defence in the act ion, as the case - may be, was not a ~ !.i9&

one, or that any particular fact or allegation upon which that claim or
defence was based was untrue. It is in the public interest that parties
should be able to enter into negotiations for a settlement of their dispute
upon a basis of give anQ take, even after action brought, without the dange~
that any offer to give up something for the sake of the settlement will
endanger the alternative enforcement of their rights by the court.

If as a result of such negotiations, a binding agreement is made,
the rights of the parties are thereafter governed thereby; but if the
negotiations fail, each party ought to be in a position to continue his
claim or defence as if such negotiations had not been entered into. If,
of course, in the 'course of such negotiations, an "open" admission is
made by one party which is fatal to his claim, or defence, evidence of
that admi.as Ion \-IUI be allowed in the suit, but that is far from being
the case here, where we are asked to infer from an ~ffer to purchase by

~he plaintiff made af~er aetion brought that during his ten years possession
of the land in question prior to action brought, his possession was not
accompanied by a manifest intent of sole and exclusive dominion. In the
circumstances of this case the suggested inference appears to me to be a
non-sequitur.

verbally informing him of his own claim thereto.

In IllY opinion, therefore, the case should be sent b<;~ ,t9 t~e
Distriot Court for the continuation of the hearing on the issue of
possession, and the defendants'must now be given a due and proper,
chanoe of calling their evidence thereon.

J gG. Ma,rrogordato, l!Bcr..l I concur.

Ap;eeal allowed