Case No.:

Ac.REv: 262-1961

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Civil Procedure—Shari jurisdiction—G Kadi’s answer to question posed under Civil Justice Ordinance 1929, s. 38, binds Civil Courts

·  Civil Procedure—Jurisdiction—Questions in suits between Mohammedans outside competence of Civil Courts—” Consent “—Civil Justice Ordinance 1929, S. 8— Writing required

·  Civil Procedure—Wakf and trust distinction—Trust remedy not available if wakf claimed

Ahmadiya Taifa brought this action for rectification of the register alleging that the land in question, registered in the name of defendants’ father and possessed by him until his death in i was a wakf of Taifa, or alternatively Taifa’s land by prescription since defendants’ father’s “possession” was only by leave of Taifa. From a decision for plaintiff that defendant’s father held land as a trustee for Taifa, defendants appealed.
Held: (i) The answer of the Grand Kadi to the question posed by the Court of Appeal that the relief sought by plaintiff was for “the constitution of a wakf” within the meaning of Civil Justice Ordinance 5929, S. 38, is binding on the Court of Appeal.

(ii) The Civil Courts have no jurisdiction to decide a question regarding constitution of wakfs in a suit where all parties are Mohammedans if the consent of all the parties” required by Civil justice Ordinance 1919. S. 38.
was not in writing.

(111) Since the court cannot grant relief not claimed by the parties, and a wakf is “entirely different from the English law conception of a trust.” the court below had no powers to grant the relief it did by constructive trust.

Judgment

(COURT OF APPEAL) *

HEIRS OF EL TAYEB EL MELIK v. AHMADIYA ZAWYA

Ac.REv: 262-1961

Advocates: Abdel Wahab Mohamed ... for defendants-applicant

Joseph L Demian for plaintiffs-respondent

B. Awadolla 1. March, 1962: —This is an application against the summary dismissal by His Honour the Province Judge, Ed Darner, of an application to him against the judgment and decree of the learned District Judge, Atbara, in CS

The case was instituted by the Ahmadiya Taifa of Atbara Town, plaintiffs-respondent, claiming rectification of the register of plot No. 33, block 10, ABCD, formerly plot No. 26, block io B, Atbara Town, on the grounds:

(a) That the said plot .was in fact a wakf known as El Zawya el Ahmadiya, Atbara acquired by money paid by the Ahrnadiya Taifa, or alternatively,

(b) that the said Taifa had acquired a prescriptive right to the plot through peaceable, public and uninterrupted possession thereof from 1932.

The registered owner at the time the suit was instituted was the father of defendants-applicant who had been dead since 5948. Plaintiffs-respondent contended that the deceased never disputed their title to the land in dispute although he himself was in possession until his death. It is to be assumed that the possession imputed to him was alleged to have been only with the leave and licence of and shared by the Taifa.

Defendants-applicant (heirs of the registered owner) denied claim in tow and a long list of 54 issues was made covering minute details, which are quite unnecessary for the decision of the case. Hearing was then embarked upon and the result was the bulky proceedings now before this court. Judgment was then passed in favour of plaintiffs-respondent on the ground that defendant’s father held the land as trustee under a resulting trust for the Ahmadiya Taifa.

From this judgment, the defendants-applicant applied to His Honour Judge Mohamed El Amin Suliman Gassouma, Province Judge, Ed Darner, who dismissed the application summarily.

Before us defendants-applicant were represented by advocate Abdel Wàhab and plaintiffs-respondent by advocate Joseph L. Demian. The question was put to the parties as to whether the Civil Courts have jurisdiction over a claim of this nature where what is claimed in sub stance is that the land is “wakf.” Advocate Abdel Wahab contended that defendants-appli never consented to the matter being dealt with by the Civil Courts and added that the parties had, at the early stages of this litigation, been referred to the Sharia Court, Ed Darner, but they failed to present their case before that court. On this, he is no doubt borne out by the letter, dated May9, 1956 from Kadi, Sharia Court, Ed Darner, to District Judge, Atbara.

Advocate Demian is not denying that the claim was basically alt allegation that the land in question is “wakf.” That being so, and in spite of the agreement of the learned advocates as to the nature of the claim, this court stated a case to the Grand Kadi on whether or not the relief sought by plaintiffs- as disclosed in their petition was one for the constitution of a wakf on the land claimed within the meaning of the Civil Justice Ordinance, s. 38.

The Grand Kadi replied to this question in the affirmative and his decision is no doubt binding on this court in so far as this aspect of the matter is concerned. That being the case and both parties being Mohammedans, the Civil Court had certainly no jurisdiction to entertain the matter without the consent of both parties.

The point did not escape the learned District Judge’s mind for he said in his judgment:

“The grounds of claim as they appear in the petition of claim as amended by the plaintiff’s advocate are based on ‘wakf’ and prescription. Though Civil Justice Ordinance, s. 38, debars Civil Courts from entertaining certain actions, amongst which is constitution of wakfs,’ without the consent of all the parties who are Mohammedans, yet my learned predecessor in office allowed it.”

The learned District Judge then went on to assume that there was an implied consent. In my view this is quite wrong. The Civil Justice Ordinance does not say how the consent should be made, but the equivalent section in the corresponding law governing jurisdiction in Mohammedan Law Courts, the Mohammed Law Courts Ordinance 1902 deprives the Sharia Courts from entertaining cases not falling within their jurisdiction without the consent of the parties concerned given in writing. The Mohammedan Law Courts Ordinance 1902, s. 6 (c), says:

“Any question other than those mentioned in the last two sub sections provided that all the parties, whether being Mohammedans or not, make a formal demand signed by them asking the court to entertain the question and stating that they agree to be bound by the ruling of Mohammedan Law.”

I think the same formalities should govern a consent given for the purposes of the Civil Justice Ordinance, s. 38; for it would be highly unreasonable to assume that the legislature intended to be less formal in requiring evidence of consent of submission to civil than to sharia juries diction. But it should be noted that the statement of claim submitted by the learned advocate for plaintiffs-respondent on January 13, 1958. clearly shows that there is an alternative claim on ground of prescription. I cannot see how prescription can be invoked in this peculiar case. It is not denied at all that defendants-applicant and their father before them were in possession, whether alone or jointly with plaintiffs-respondent, and therefore in order to prove that whoever was in possession was acting on their behalf, plaintiffs-respondent are driven to admit the relation to which that possession owes its source and which is nothing short of the allegation that the property was acquired by plaintiffs-respondent for the purposes of constituting a “wakf” for the Ahmadiya Taifa. Such an allegation, which forms the basis of a prescriptive claim, would again deprive the Civil Court of its jurisdiction.

That leaves us with the question of “resulting trust” on which the learned District Judge based his judgment. At page z6 of the judgment he says:

“I do not think I would be departing from this principle (the principle of resulting trust) if I say that El Tayeb El Malik was in fact acting for himself in his capacity as Ahmadi and at the same time as agent of the other real purchasers, namely, the Ahmadiya. This, in my opinion, is the law that governs the first ground of claim.”

Here again, I do not think plaintiffs-respondent can succeed. In the first place, the court cannot grant a relief, which was never sought or claimed by the parties. A wakf, which is a peculiar institution of Mohammedan law, is entirely different from the English law conception of a trust. In their creation, operation and extinction, the two institutions are entirely different. Secondly, the court cannot be free to assume jurisdiction where none exists by simply selecting some only of the ingredients of the claim (i.e., the wakf) and disregarding the others. For example, in the present case, it may be that some of the facts which plaintiffs-respondent rely upon contain the components of a resulting trust, but what about the additional ingredient that the property is to be used for religious purposes? If, therefore, plaintiffs-respondent are to be afforded the relief sought by them, the Sharia Courts are the proper venue.

In my view this application should be allowed with costs and the decree of the learned District Judge, Atbara, be set aside without prejudice to respondent’s right to apply to the Sharia Courts.

M. A. Abu Rannat C.J. March, 5,1962: —I concur.

* Court: M. A. Abu Rannat C.J. and B. Awad I.