HEIRS OF UM GADEIN KHALIL v. ABDIN MORGAN AND OTHERS

(COURT OF APPEAL)

HEIRS OF UM GADEIN KHALIL v. ABDIN MORGAN AND OTHERS

AC-REV-275-1963

Principles

· Prescription—Relationship——Slave to master—Prescription and Limitation Ordinance 1928, S. 4 (3)—Ex-slave may not acquire title by prescription because of intimacy of relationship

· Custom—Land——Occupation of houses built on land of another—Ex-slave who builds and occupies house on land of ex.master is entitled to customary right of occupation

· Prescription—Proof of adversity—Admission of one owner of undivided share not sufficient even against him—Must prove adversity by evidence

An ex-slave built a house on land of his ex-master and brought this claim for prescriptive title. One of ex-master’s heirs to the land in undivided shares admitted the adversity of the relationship.
Held: (i) The de facto intimacy of the relationship between ex-master’s heirs and ex-slave defeats the adversity requirement of Prescription and Limitation Ordinance 1928, S. 4 (3) and so the ex-slave cannot acquire title by prescription.
(ii) An ex-slave who with leave of ex-master builds a house on the ex land and occupies it is entitled to a customary right of occupation giving them the right to possession of the house and hosh. -
(iii) The admission by one owner of land in undivided shares that the relationship between owners and an occupier of the land is adverse binds neither him nor his co-owners; adversity must be proved by evidence.

Judgment

Advocates: Ahmed Zein El Abdin ... for defendants-applicant Siddig Ahmed Kheir for plaintiff-respondent

abiker Awadalla J. March 30 1964:—This is an application against the judgment of the Honourable Judge of the High Court, Khartoum, dismissing an application to him against the judgment of the learned District Judge, Omdurman, in CS-882-1957

The claim is one for rectification of the register of Plot 33/I (1), Omdurman Town, property of applicants (defendants in the suit) to the extent of 240 square metres, on grounds of prescription. It was contended on behalf of respondents (plaintiff in the suit) that they had been in peace able public and uninterrupted possession of the said area for over ten years and that they had built thereon some buildings assessed at £S.200 in value.

The area of the plot in question is 799 square metres. Applicant, Abdulla Mohamed Khalil, owns 599 square metres and the other two applicants, Awad Fadlalla and Indalla Fadlalla own 200 square metres, of which Awad is entitled to two-thirds (i.e., about 133 square metres) and Indalla to one-third (i.e., about 67 square metres). The two heirs of Um Gadein were represented by Awad Fadlalla who was the duly authorised agent of Indalla. In the first hearing, Awad admitted claim both himself and on behalf of his principal Indalla but Abdulla Mohamed Khalil disputed it and the normal issues were framed.

It appeared from the evidence that the relationship between the applicants and first respondent Abdin Morgan was one of master and slave. Second respondent, Salim Osman, is simply married to the sister of Abdin Morgan. The family of first respondent used to occupy another hosh, also belonging to applicant’s ancestors, but that hosh was sold by applicant in 1937 when respondents were invited by applicant to move into the hosh now in dispute. They did so move and constructed some buildings. Abdin Morgan, first respondent, contends that he built seven rooms in this house and Salim Osman, second respondent, one room which he occupied with his wife, the sister of first respondent. Both respondents admitted that applicant’s sister Nafisa was at all times living with them in the same area and that the daughter of first applicant who is a school mistress used to live in the house save when her duties took her outside Khartoum. Further more, they admit that they quitted the house in 1957 consequent on a suit being instituted against them by applicant and it appears they were not in possession at the time of the institution, of the suit in June of that year

The learned District Judge, in a lengthy judgment which, I regret to say, can in no way be defended against the reproach of deep-seated confusion, found in favour of respondents and ordered rectification of the register of the plot in their favour for an undivided share equivalent to the area claimed by them.

The learned advocate for applicants applied for revision to the Honourabl of the High Court, contending that the learned District Judge

was wrong in law in finding that the relationship between the parties did not prevent possession by respondents from being adverse.

The I-lonourab J of the j çpurt Rpheld tl 9j Judge on the following grounds: (i) that the relationship of r an4 slave, being void of ar legal recognition under S 1aw IPQt be made the basis of a d under Prescription and i rdinanc S. 4 ( and (ii) that tl Eacts proved d not SUpport any s that res wcrc i:, pu othcrwise than on their pwn behalf.

LI. agd1 i. dc* that the present application is qw being made.

In my view this application should be allowed. I think that the Honour. able Judge of the High Court has misdirected himself as to the real question which a court is invited to deal with in cases of this sort.

When a plea is made that a claimant of land wa suffered to build and live thereon because of his previous status of slave of the landowner. what a court is called upon to consider is not the status of slaveiy or

right directly arising thereof. Wbat such a plea means is simply that P t irJS1 ‘ UIeieo A at stjti a ca mear is sijn tr1

between the claimant and he owner there was a reJation pt de facto

intimacy which, in the domain of prescription, m! against any ir4Fence that the joyment of the c’aimant was otj t by lea and licence of the owner. In fact, this Court h always up decisioi ç ex-slaves from acquiring pr t ex-rnast by p scription but according them lesser rights than full pwnership. In Aishg Abdel Rahman v. Omer Idris Forawi and others, AC-A 949, a 4ecisgp of the District Cp Q rejecting a claim y prescription in circumstances sin tq the present was upheld both by the High Cq and is coUrt p the ground of the rei of the claimant, a lave of ç icestq of the owner.

in jleirs of Ibrahim I v. 4 Ibrahim Nasir, AC-REV-ioi

J.omax ., iiy a judgme gf tj court, says:

In4 the applicants have a to perform a k pf the greater djf namely, to prove that btilding% çte4 on I registered to another were not in fact the property pf that person. Q course a claim under such circumstances has on occasions been prgv and been upheld in this for examp’e where a slayç . . .

s

proprietor and gc.cupied it. . .

What, then, are those rights short of full qwnership of the lard which the tenure of an ex-slave who a4 buUt upon his ste R4 n confer upon him? The learned advocate for applicants sougl t° rely o

z6i

S4-jt.—-6

the case of Ahmed Bedri v. Fatoma and El Taya Mohamed Eissa, AC-REV- 70-1935, but in my view that case is not at all helpful because although the decision therein was based on a customary right of occupation, yet it was not a case between proprietor and ex-slave, but simply between sanguinary relations.

I have undertaken a careful research into previous decisions by. this court to find out whether the exact nature and incidents of the right in question has been defined by this court, but I must admit that my research has proved fruitless.

I can, however, state with some certainty that the right referred to by Lomax J. in Ibrahim Nasir case is well recognised as arising out of custom. though its exact limitation is not free from obscurity. Mention of the right occurs once in the Land Settlement and Registration Ordinance 1925, S. 27, says: “The customary right of occupation of houses built on the land with the consent of the proprietor or his predecessor in title” shall, inter alia be capable of taking effect in reference to land without notification in the register, The proviso to the said section gives a register power to direct registration of that right if he thought fit.

The description of the right in the said Ordinance as a “customary” right would support the theory that it is to custom alone that we should look for a determination of the nature and invidents of that right. That would, of course, necessitate the taking of evidence of that custom governing the nature and incidents of that right and in particular the duration of the tenure and how, if at all, it is determinable. In the present case I think it would be sufficient if this court would declare that claimants are simply entitled to a customary right of occupation which would entitle them to resume possession of the part claimed if they had already been evicted. It would be a heavy burden now to call upon claimants to have the incidents of that right proved now in anticipation of future differences which may never come to pass.

One last point is worthy of consideration. I am of the opinion that the admission of claim which one of the heirs of Um Gadein made to the court below is inconsistent with the facts proved and it should therefore be disregarded. Its inconsistency lies in the fact it is assumed to admit adverse possession while the evidence showed there could have been no adverse possession in this case. In cases of this sort where several persons own land undividedly, a claim by prescription can either be proved by evidence or not at all. To say otherwise would mean that the claimants will have to be entered as own to the extent of the interest of those admitting the claim, i.e., owners in undivided shares, which is not what they claimed, for a claim by prescription postulates possession of a specific parcel of land.

For the above reasons, I am of opinion that this application should be allowed and the decision of the Honourable Judge of the High Court affirming that of the learned District Judge be set aside.

There shall be a declaration in favour of respondents that they are owners of a customary right of occupation of the area claimed and covering 204. square metres of Plot 33/1 (i), Omdurman Town. No order as to costs.

M. A. Abu Rirnnat C.J. March 30, 1964: —I concur.

Editor? Note.—See Ahined Suliman and others v. Madena Abdel Safi and others (1962) S.L.J.L 16o.