(PROVINCE COURT)

AND

(COURT OF APPEAL)*

HEIRS OF SAWIRIS MAHROUS v. WILLIAM MORGOS MAHROUS

(DPC-CS-210-1955)

(AC.Revision-129-1957)

Principles

·  Land law—Easement right of occupation 0f building erected on another’s land—Owner’s consent to building imperative—Land Settlement and Registration Ordiance, s. 27 (h)

Custom—Onus of proving custom lies on pro pounders—Nature of customary right considered
Land law—Family charity as explanation of occupation—Legal relationship not to be implied easily

Judgment

Court: M. A. Abu Rannat C.J. and Babikir Awadalla J.

This case concerns the customary right of occupation under the Land Settle ment and Re Ordinance. s. 27 Its legal ingredients are:

(1) The right must have its origin in a custom prevalent in the locality between persons of a defined relationship.

(2) The grantor of the right must be a proprietor, i.e., a person registered as the owner of the land. Any person whose right to possess is limited in point of time or restricted in point of disposition cannot grant such a right. This includes a lessee from the Government.

(3)The grantor of the right or his predecessor in title must have given consent, express or implied, for the grantee to build on the land.

(4)The grantee or his predecessor in title must have changed his position to his detriment by virtue of this consent, i.e., must have expended money out of his own pocket to construct the buildings which form the stfbject of the right.

Custom is a source of certain legal rights in the Sudan. but those who rely on customary right must establish the existence of the custom in question by evidence, which must show that, inter alia, (a) it is prevalent in the locality in question; (b) it applies to a specific class or relationship of persons.

Within a family, the occupation of land may often be explained by the Sudanese practice whereby wealthier members of a family provide accom modation for indigent members. In such situations an intention to’ create legal relations, or the creation of legal rights of occupation, should not be too easily implied.

Revision

The facts appear from the judgment of His Honour the Province Judge (set out below), subject to the comments of the Court of Appeal as to the absence of proof of certain matters.

Advocates: Ahmed Gumaa ……for the applicants

                   H.Riad…………… for the respondent

The judgment of the Province Court, Northern Province (DPC-CS-21o- 1955) is set out in full, followed by that of the Court of Appeal in revision. June 3. 1957. Osman El Tayeb P.J. : —Plaintiffs are the registered owners of ‘ plot No. 4. Block 11-B Atbara Municipality; they apply for an order of ejectment against defendant on the ground that he has been in occupation of the said house as a trespasser. Defendant resisted the application and counterclaimed for a declaration of the customary right of occupation under the Land Settlement and Registration Ordinance, s. 27 (h) in his favour.

The facts of the case, taken mainly from the evidence of D.W.2 Salwãnis Mahrous, are as f9llows: The family originally consisted of the father Mahrous and mother and their three children Sawiris, Morgos and Saiwanis. In 1912 the p)ot of the house in dispute was acquired, probably

Sawiris, as it later came to be registered in his name. In the same year they started to erect buildings on the said plot. The buildings were erected by them all, the father and his three children, by their joint efforts. The buildings consist of three blocks: two rooms and a verandah occupied by Sawiris and his wife and children, a similar block occupied by Morgos and his wife and children, the third block of one room and a verandah occupied by the father and mother and Saiwanis. In addition they had a common room. When Salwanis got married in 1923 he built for himself on the same plot a room and a verandah. A little later as the family grew bigger and that house started to be insufficient for them, Sawiris, who seems to have been better off than the others, built for himself another house on another plot to which he took his family, leaving the house in dispute to the others. The common father and mother died in 1926, and Sawiris left that house a year or two before this year. Saiwanis, who was a government official, was transferred to Kerima in 1928. He returned in 1930 and lived in the same house. In 1943 he was transferred to Wad Medani; he returned to Atbara in 1946. He lived in a government house, and never returned to live in the said house. It transpires that Morgos and his family had never left this house from 1912 up to 1955. In this year in July or August they moved, as the replanning of the town would cause part of that house to be demolished. Part of it was actually demolished, but as defendant and counterclaimant found that the part of the house that he had been occupying was not affected, he returned to it. The rest of the family of Morgos seem to have found accommodation elsewhere.

After his marriage in 1947 defendant moved from the block of his father and brothers to the block of Saiwanis. However, it is clear that defendant has been continuously living in this house since the days of his infancy, and accupying it up to now, never disturbed except for a short period of about a month by the incidence of the replanning of the town in 1955 which was just prior to the institution of this suit. Further, there was not any kind of agreement as to the nature of his occupation. The conspicuous fact is that the said house has been a family house, notwith standing its registration in the name of Sawiris, and that defendant and the others have or had been living in it as such: Sawiris up to his death in 1946, Morgos up to his death in 1950 and Saiwanis (who is alive) up to now. None of them attempted to settle or determine the legal relationship between them. They appear to have left the matter open to fut’are disputes between their successors, which have come now to this court to be settled for them.

The customary right of occupation, as recognised by section 27 (h) of the Land Settlement and Registration Ordinance, in order to be estab lished requires that the person claiming it has built a house on the land with the consent of the proprietor or his predecessor in title. In my opinion it is not necessary that the house should have been built by the person claiming himself or that he had spent money on the house from his own pocket. But the right can be established in the case that the house was built by his predecessor. This is because the crucial point on which the right depends is the occupation. It is a right of occupation. If a licensee builds a house on the land of another, and then he does not occupy that house, he could not acquire the right under section 27 (h). It seems that continuous occupation for any length of time up to the date of institution of the suit is sufficient. This customary right of occupation is similar to an easement; it is an interest in the land which the owner (of that interest) is entitled to enjoy until it ceases to exist. It has beei decided in El Sheikh Abdalla El Sheikh Shargawi v. Mastura Bint El Ha Arabi (KH-HC Revision-59-1951) that it ceases to exist by eviction conse quent on the payment of compensation by the proprietor of the land equal to the value of the buildings.

In this case defendant (and counterclaimant) has lived on this plot since he was an infant in a house built by his father, and his predecessor. This notorious fact of occupation for as long a period as more than forty years in a house in which he has an interest of succession, in my opinion is sufficient to vest in him a right of occupation similar to the one m tioned in section 27 (h). It is immaterial that his parents and his other brothers and sisters had equally been occupying the same house with hire.

It seems clear that defendant may be given a drc+aration as to hi acquisition of a right of occupation in part of this house. This is whaL he prayed for without making an alternative claim for compensation. But I am not going to decree it in that way. I feel that a bare decl4ition is not just and fair, as it would virtuall deprive the plaintiffs of the benefit of their house, and a declaration with an order of compensation may result in a difficulty if defendant refuses tG accept the com.pc-ncatkon and refuses to vacate the house. 1 think the right decree should contain an order of eviction and also an order of compensation. The first order is on the claim of plaintiffs and the second one is on the coun.t in substitution for the declaration of right of occupation. Hayes j. in Mastura’s case stated: “The difficulty is of course that the occupier cannot compel the owner to pay compensation; the o may be content to leave the occupier in peace. and, if he does so, the occupier must be content with his occupation. In such circumStances the only relief that the occupier can get is a declaration of his right; the courts do not much like actions for bare declarations unaccompanied by a prayer for some positive orders flowing from the declaration, but I think that in such case as the present it is only just to grant the old woman a declaration. to make clear her status and position.”

In this case plaintiffs are applying for an order of eviction, which. I think, they are entitled to obtain. Defendant is counterclaiming for adeclaration of occupation, and in view of the order of eviction, it will be impossible to grant it, but in lieu of the declaration defendant is entitled to compensation.

As plaintiffs are applying for eviction, the right course for defendant to take was to make an alternative claim for compensation. He seems to have deliberately omitted this in order to complicate the matter; to make it understood that his right extends over all the house. So the amow of compensation is not in evidence. Defendant in his evidence stated that his claim is in respect of two rooms and a verandah. These are accepted as the block built and occupied by his father and where he has lived.

The order of compensation shall be for the assessed value bf these two rooms and verandah at the present time.

It remains to deal with two points raised by advocate for defendant. The firs that if compensation is ordered, its payment is a condition prece dent to any relief that may be granted to plaintiffs, and secondly, that as plaintiffs did not show their readiness to pay compensation defendant is entitled to a bare declaration. I have already pointed out that a bare declaration seems to be unfair for plaintiffs, and as they applied for eviction the compensation is a liability that the law puts upon them and so their willingness is immaterial. I do not agree to the first point. The compensation becomes due to the occupier from the time he is served with notice to quit or until he is evicted. In the circumstances 1 think I have to allow defendant two months time during which he can take steps to realise his compensation, and will make the decree for the compensation a preliminary one.

                                                (Decree accordingly. No order as to Costs)

December9, 1957. Bahikir Awadalla I.: —This is an application for revision against the decision of His Honour the Province Judge, Northern Province, on counterclaim in CS-21o-1955 ordering applicants (plaintiffs in that suit) to pay respondent (defendant and counterclaimant) the present-day value of two rooms and a verandah in Plot 4 Bk .11-B Atbara rown (now known as Plot 13 Bk. 1I-B) and registered (under a twenty- years’ lease from the Sudan Government) in the nan-” of applicants. Applicants are the heirs of late Sawiris Mahrous who died about 1946 in Atbara Town, and the respondent is the nephew of the said Sawiris \Iahrous, being a son of late Morgos \lahrous who died in 1950.

Proceedings were originally started for evicting the respondent from the said house, which, it was alleged in the court below, he was occupying gratuitously. The respondent contested that claim on the ground that he, together with other heirs of his father, was entitled to half of the said house, as. in his allegation, it was bought by the fathers of the parties jointly in equal shares. He therefore counterclaimed for a declaration of this joint ownership with the consequential rectification of the register. Although the respondent was claiming on behalf of all the other heirs of his father Morgos, no list of heirs was obtained from him and he was allowed, in our view wrongly, to contest the case in his own name.

The case was originally started in the District Court, and later trans ferred to the court of His Honour the Province Judge before whom the respondent abandoned the original counterclaim of ownership and set up a “Customary right of occupation of two rooms and a verandah” under section 27 of the Land Settlement and Registration Ordinance, 1925. Conscious of the impracticability of making such a clam against a lessee, the respondent applied for joining the Sudan Government as a co-defendant but his application was refused by the court.

It is very difficult to conceive how a claim for such a statutory right can be maintained against any person other than the “ proprietor,” i.e., the person registered as the owner of the land. It is a right, which permanently attaches to land and is therefore incapable of subsisting against a lessee. Even the proprietor himself, once he parts with p05- segsion to a lessee, cannot grant such a right, for by the grant of a lease the lessee acquires the exclusive possession of the land and the proprietor has nothing left but the reversion. It is therefore impossible to reconcile the court’s attitude in entertaining such a claim and at the same time refusing to join the Sudan Government as a co-defendant. That is why the court in the end found itself incapable of applying the principles of this customary occupation to the facts of the case and was therefore compelled to award compensation Before we proceed to consider the facts of the case we would like to state here, and briefly, the essential constituents of this right of occupation recognised in section 27 of the Land Settlement and Registration Ordinance, 1925.

In the first place, this right must have its origin in custom. It is not just a mere right of occupation in the air, but it is a customary right, i.e., a right which owes its origin to some custom prevalent In the locality and according to which the grantee of the right stands vis-d-vis the grantor on a specific plane of relation which entitles him to be tolerated as an occupier, e.g., a son-in-law is so related to the father-in-law.

Secondly. the grantor of the right must be a “proprietor,” i.e., a person registered as the owner of the land. Any person whose right to possess is limited in point of time or restricted in point of disposition cannot grant such a right.

Thirdly, the grantor of the right or his predecessor in title must have given consent express or implied for the grantee to build on the land, and

Fourthly, the grantee or his predecessor in title must have changed his position to his detriment by virtue of this consent, i.e. must have expended money out of his own pocket to construct the buildings the subject of the right.

In the light of the above analysis it remains to consider whether the evidence adduced on behalf of the respondent in the court below is capable of supporting a claim of this nature. In our view the respondent not only failed to attribute a customary origin to his alleged right, but he has also failed to establish the first essential, that he, or his predecessor in title, erected any buildings on this plot. In this respect, the court, i.e., Saiwanis Mahrous, full brother of the father of the contesting parties, and a certain Fahmi Andrawis, also a relative of the family, heard two witnesses.

Although the success of respondent (or counterclaimant) in this suit may be profitable to him, yet Saiwanis gave no evidence from which it can be safely dedu, ced that plaintiff’s predecessor in title built the two rooms and verandah out of his own pocket. All that he said is that all the male members of the family used to supervise the buildings and that timber was obtained for the roofing in the name of the two elder brothers. Neither of those two facts is inconsistent with the theory that the lessee, the father of applicants, supplied the money for the buildings. Fahmi Andrawis gave no evidence of value. The claimant himself was heard on oath and his statement amounts to nothing more than a blunt assertion that the fathers of the parties obtained the lease of the house jointly and that they constructed the buildings jointly. As regards these assertions, we have called for the plot file of the relevant land and we find that it was originally leased by the Government at a rental of 297m/ms per annum in 1909 to a certain Suliman Tahan who made an assignment in 1911 of the land and buildings to Sawiris Mahrous for £E.12. If the counterclaimant’s predecessor in title was a co-owner of the lease by virtue of this assignment, why was he not vigilant enough to have his name included in the transaction? One fact renders such an assertion difficult to believe, and this is that Morgos survived Sawiris and died four years after him; the estate of his deceased brother Sawiris having been administered during those four years and the plot in question registered in the name of the heirs. Nonetheless he made no claim whatsoever of this nature and he would surely have done so if he thought he had any.

We are therefore of opinion that the court below was wrong both in law, in assuming that this counterclaim has a customary basis, and in fact in concluding that the two rooms and verandah were built by counter claimant’s father out of his own funds. The facts of this case disclose no aspect which is not noticeable in everyday life everywhere or which is inconsistent with a practice common to all parts of this country whereby aprosperous member of the family proviaes shelter and shade for the indigent. If the courts are to lend themselves so easily to claims of this sort and to assume that everyone circumstanced as the counterclaimaflt in this case has a right which he can enforce against his benefactor’s heirs, then charity would become restrained, kinship forsaken and life intolerable.

This application is therefore allowed, counterclaim dismissed and respondent ordered to vacate the premises and deliver possession thereof to applicants forthwith.

No order as to costs.

M. A. Abu Rannat C.J.: —I concur.

                                                                                   (Revision allowed)