( The National Supreme Court )

Judges:

President

Hon Justice:  Ibtisam Ahmed Abdalla         Supreme Court Judge

Member

Hon Justice: Hashim Omer Abdalla            Supreme Court Judge

Member

Hon Justice: Ahmed  Al Bashir Al Hadi     Supreme Court Judge

The Parties:

Heirs of Forog Ibrahim lsa                 Applicant for Review      

v.

Mohammed Ali Al bahar                   Respondent for Review 

No. C.C./2692/2014

The law of civil Transactions, Article 216 – Land Settlement and Registration Ordinance 1925, Articles 54 – 1816.

Principle:

1- The marking on the register is a caution made by the interested person against any dealing in the same real property by any other person affecting or impeding the registration for his benefit in the real property, it is a temporary caution until he is able to complete the registration of his own dealing, and convey ownership to himself.

2- It is not right to claim that the mere marking on the register means abandonment, and as sufficient to transfer the ownership which prohibit the registered owner from his right in the ownership .

The Advocates:

Mr. Omer Yousif Bashir

Judgement

Judge: Ahmed  Al Bashir Al Had

Date: 11/12/2015

The judgement challenged was passed by the court of Appeal Khartoum which summarily quashed the appeal, and confirmed the decision of the district court Khartoum which quashed the suit of the plaintiffs, the challenger in the civil suit 531/2014.

On merits the dispute is relating to the right of the heirs the plaintiffs in the intertence of the house number 154 block, 43 the third Khartoum, because it was registered in the name of inheretent Mohammed Farah Ibrahim according to the search certificate. Their inheretent died in 1925, and they remain using their right as owners of this real property by way of renting it or otherwise until today.

This suit was raised by them in 2014 in order to remove the marking in the register of this plot by a petition of abandonment  by their inheretent during his life time.

The lower court decided that the provisional abandonment amounts to abandonment by which the ownership in the real property is transferred to the buyer, and the court quashed the suit of the challengers and this decision was confirmed by the court of Appeal.

The buyer can not be traced and his address is unknown, to the lower court which passed a default decree.

Before this court the buyer was summoned by publication and he did not appear or answer the challenge, and the marking on the register remained for more than twenty years, thing which is against justice and common sense.

The main reason of the challenge was the statement of the land registry Khartoum was ambiguous and unclear , and did not explain the, cause of the abandonment and what were the supporting documents of the abandonment .

This court used to apply the land Settlement and Registration Ordinance 1925 whenever a dispute arose relating to a registered land, according to this Ordinance.                ( See Article 819 of the Civil Transaction Law 1984 ) which reads as follows:-

( Regard must be had to the special Law on which the basic rules and provisions of the law as it provide that ) Para (2) the dealing in real property owned by the state is invalid unless it is registered.

Para (3) Every benefit shall be disposed of, if the dealing in it is contrary to part (2) even if the benefit is transferred to others para (4) Regard must be had to any restriction in the special laws.

On the other hand ownership in real property shall not be transferred unless the dealing conveying ownership is registered as per Article 54 of the land Settlement and Registration Ordinance 1925 and according to the settled numerous and recurring judicial precedents explaing this Article see:

Abdela Magid Al agbash

V.

Al agbash Mohammed Hassan

1976 –p 331

For this, it is not right to claim that the mere marking on the register, revealing abandonment, is sufficient to convey ownership and prohibit the registered owner from his right of ownership as the court of first instance adjudged.

Why the name of the buyer did not appear in the research  certificate as owner, if the marking on a petition of abandonment is sufficient as proof of ownership.

It is true the marking on the register is a caution made by the interested  person against any dealing in the same real property by any other person affecting or impeding the right of registration for his benefit in the real property, it is a temporary caution, until he is able to complete the registration of his own dealing and convey the ownership to himself. He needs time to collect enough money for paying the registration feez.

It is not necessary to say the prescribed feez for any action is of the public order because it affect the general treasury as result, any proceeding, the feez of which is not paid is invaled.  Article 78/6 of the land Settlement and Registration Ordinance 1925 and reads as follows:-

caution may be removed from the register with the consent of the cautioner or by order of the court. This caution which remained for more than twenty years, leads to the registration of the dealing conveying ownership, the owner of this dealing did not appear and his address is unknown all this time, and no hope for his appearance, the remaining of the caution any more cause. hardship and harm to the heirs, and according to the general rules the harm must as far as possible be removed by application of article 5 (1) of the law of Civil Transactions.

If the honorable collegues concur, we accept this challenge and quash the decision challenged, and pass a new judgement by writing to the head registerar of the lands of Khartoum to remove the caution on the petition of abandonment from the register of the disputed plot. No order for feez before this court .

and pass a new judgement by writing to the head registerar of the lands of Khartoum to remove the caution on the petition of abandonment from the register of the disputed plot. No order for feez before this court .

Judge: Ibtisam Ahmed Abdalla

Date: 20/12/2015

I agree with the marvelous reasoning which is a small research in this challenge which is written by my learned collegue Ahmed Al Bashir Al Hadi and concurred with by the honorable collegue Ibtisam  Ahmed Abdalla in the second opinion.

Judge: Hashim Omer Abdalla

Date: 22/12/2015

The final order:

1- quash  the decision of the court of appeal .

2- Anew judgement is passed, by writing to the head of the land registration Khartoum east to remove the caution on petition of abandonment from the register of plot (154) Block (43) the third Khartoum Arkaweet.

3-No order fore feez.

Ibtisam Ahmed Abdalla Judge of the supreme Court

President of the Ciruit

27/12/2015