(COURT OF APPEAL)

IBRAHIM HAKIM EL TAYEB v. MOHAMED IBRAHIM HAKIM

AC-REV-167-1967

Principles

  Civil Procedure—Courts-—Civil Justice Ordinance, s. 4 (2)— Settlement Officer does not come within the definition of Civil Courts under the Ordinance

  Land Law—Settlement Officer—Land Settlement and Registration Ordinance, s. 15 (2) (a)—Competent to deal with question of Sharia law

(i) Settlement Officers are not Civil Courts which are referred to in the Civil Justice Ordinance, s. 4 (2) and which are established under the Civil Justice Ordinance.

(ii) According to the Land Settlement and Registration Ordinance, s. 15 (2) (a) a settlement officer is competent to deal with questions of Sharia law which arise in settlement proceedings.

Advocates: Abdel Rahman & Abdel. Rahim

Mohamed Beshir for the applicant

Mohamed El Awad El Hassan for the respondent

Judgment

Ramadan Au Mohamed J. March 3, 1970:—This is an application against the order of His Honour the Province Judge, Khartoum, summarily dismissing a similar application to him against the decree of the Settlement Officer dated January 4, 1966 whereby he dismissed the claim of applicant-plaintiff by confirming the decision of the Registration Officer that plot 163, block 1, Abu Saad, be registered in the name of respondent- defendant as freehold.

The facts of this case are these: The applicant (plaintiff in the suit) instituted CS-10-1965 before the Settlement Officer challenging the order of the Registration Officer registering plot 263, block 1, Abu Saad, in the name of the respondent-defendant. The latter resisted the claim on the ground that he entered the said plot when vacant on the strength of a verbal gift and had erected buildings thereon some eight years ago where he lived since then. After hearing evidence on both sides the Settlement Officer entered judgment for the respondent-defendant. An application to revise that decree was summarily dismissed by His Honour the Province Judge and hence this application.

The learned counsel for applicant submits the following grounds in support of his application:

1. The gift is revocable by the applicant-donor and the institution of the suit amounts to such revocation; and

2. that the Settlement Officer has no jurisdiction to adjudicate questions regarding gifts which are within the exclusive jurisdiction or Sharia courts according to the Civil Justice Ordinance, ss. 38 and 39.

Before the settlement and registration of the area where the plot in question is situated took place, that area, including the said plot, was considered as Government land. Any interest acquired before that date is, therefore, an equitable interest which can be transferred in whatever manner is necessary for a transfer of that particular kind of interest.

“The question of consideration in equitable assignments turns on whether any act remains to be done in order to perfect the assignment; every effort must have been made by him to complete his intention,’ Anson, Principles of the English Law of Contract (21st ed., 2959), p.375.

The applicant by delivery of possession to respondent had done every thing which was necessary to be done on his part to transfer the property and render the settlement binding upon him. I can see no right of revocation to the applicant as the contract was complete and executed. The land being unregistered, nothing remained for the parties to be done.

Now we turn to the question whether the Settlement Officer has jurisdiction to decide questions of gifts or not. The Civil Justice Ordinance, s. 38, provides that Civil Courts shall not be competent to decide, inter alia questions of gifts where all parties are Mohammedans except with the consent of all the parties. Civil Courts referred to in the above section are those courts which are established under the Civil Justice Ordinance, s. 4 (2), and Settlement Officers are not such courts.

The Land Settlement and Registration Ordinance, 1925, 5. 15 (2) (a) provides as follows:

“The Settlement Officer shall hear and decide all claims and disputes as to ownership or as to boundaries of land within the settlement area or as to any charge on such land…"

It is clear from the above section that there is- no restriction on the jurisdiction of the Settlement Officer regarding claims and disputes as to ownership of land or as to charges on it as the one laid on Civil Courts. It may be said that it is absurd to give such extensive powers to Settlement Officers where the jurisdiction of the Civil Courts is restricted. This objection can easily be met by saying that the Settlement Officer is designated with a particular and narrowly defined job, namely, to determine the rights of claimants of land or charges thereon in a specified settlement area. The intention of the legislature that the Settlement Officer should have power to decide all claims and disputes as to ownership of land or as to any charge on it is reasonably clear. This, no doubt, includes questions of gifts.

This application is dismissed with costs.

Mahdi Mohamed Ahmed J. March 8, 1970:—I concur. In my opinion the conclusion of the Settlement Officer that applicant together with the other co surrendered their rights over the plot to respondent is supported by sufficient evidence. The surrender being in the nature of a gift the need for consideration does arise. The gift in question being made by father to his son is not revocable. See Sharh El Ahkam El Sharia by Mohamed Zeid El Abyani, p. 261.

I again agree with the conclusion of my learned collague that a Settlement Officer is competent to pronounce upon any question of Sharia law which may arise in settlement proceedings. The limitation of the Civil Justice Ordinance, s. 38, is confined to courts established under that Ordinance and does not apply to the ad hoc power of the Settlement Officer conferred by the Land Settlement and Registration Ordinance s.

15 (2) (a). The whole object of a settlement machinery is to settle and register all rights pertaining to land in specific areas. To exclude Sharia matters is: apt to defeat that object.