Case No.:

AC-REV-134-1962

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Pre-emption—-Renunciation of right—Pre-emption Ordinance, s. 16 (a)—Right cannot be renounced before sale is made

·  Pre.emption—Co land where shares of sagia individually registered— No pre-emptive right between separately registered owners in the same sagia

·  Pre-emption-—Notice to pre-emptor—P roof of knowledge of pre-emptor of sale constitutes proof of notice

Before a sale of a piece of sagia land, vendor offered the land to plaintiff, who refused to buy. The land was then sold to defendant. In this sagia every heisa (share) is individually registered unlike the common practice where the sagia is registered undividedly. Defendant-purchaser was co owner of other pieces in the same sagia though not of the share in question. Plaintiff, a co-owner of the land in question, therefore claimed pre-emption upon the sale.
Held: (i) A person entitled to a right of pre-emption has not renounced his right under Pre.emption Ordinance 1928 s. 16 (a), if he refused to purchase the land in question before the sale upon which he claims pre-emption took place; the right to pre-empt arises when the sale is made and cannot be renounced before it arises.

(ii) In areas where separate shares of a sagia are separately owned and registered owners of separately registered shares are not co-owners with a defence against pre-emption ‘under .Pre Ordinance 1928, s. 7 (d). against a co-owner of the piece of land in question claiming under Preemption Ordinance 1928, S. 5 (a).

Obiter dictum: if “Knowledge of the sale should reach the pre-emptor from any quarter;’ this constitutes “cognizance” within the meaning of Pre-emption Ordinance 1928, s. i6 (c).

Judgment

(COURT OF APPEAL)

IBRAHIM TAHA EL IZEIRGABI v. AMNA ABDALLA AND ANOThER

 AC-REV-134-1962

Advocates: Abdulla El Hassan ... for defendant-applicant

Abdel Mageed Imam 1. March 27, 1962, HC-REV-: —This is an application for revision submitted on behalf of defendant-applicant,

Ibrahim Taha El lzergabi hereinafter called the purchaser. against the decree of the resident magistrate, Khartoum North, dated September 24. 1961, by which only 4 diraas in sagia No. 19 El Izeirgabi were left to him and the remainder of 272/3 diraas were to be registered by way of pre e to plaintiffs-respondent. Amna and Katira banat Abdalla, herein after called the pre-emptors.

The application discloses two main grounds:

(a) That the court below was wrong in dividing the land in dispute between the purchaser and the pre-emptors; for either the claim for pre emption fails in which case the purchaser should retain the land, or it succeeds in which case the pre-emptors should have all the land transferred to them.

(b) that the finding of the said court that the pre-emptors had no cognizance of the sale was against the weight of evidence.

The following information was obtained from the Land Registry Office:

(i) By deed No. 348, dated June 15, 1961 an undivided share of 4.13/24 Habils Subai in share No. 8, sagia No. 19 El Izeirgab was registered by way of sale for the sum of £S.4o in the name of the purchaser, Ibrahim, from Nafissa Hamza, Hamza, Mohamed, Sit El Banat, Sittana, Sida and Urn El Hassan a Abbas Mohamed Saleh, hereinafter called the vendors.

(ii) Both pre-emptors own a registered share of 1.7/24 Habils Subai each in share No. 8, sagia No. 19 above mentioned.

(iii) A certain El Faki Taha Mohamed, the purchaser’s father, owns a registered undivided share of 5 Habils Subai in share No. 1 in the same sagia—share No. i is separate and divided.

Also the said El Faki Taha owns in co-ownership with others a regi5tered share of 6 Habils Subai in share No. 6 in the same sagia.

Also the heirs of El Faki Mohamed Taha, the purchaser’s grandfather. owns a registered undivided share of 2 Habits Subai in the same sagia.

(iv) The minimum registrable undivided share in this sagia is i/8 Habils or equivalent to 7/8 diraas.

(v) The decree above mentioned could not be registered because of a mistake apparent on its face: that the share decree to the pre-emptors was less than the share claimed by way of pre-emption.

As I see it this application should fail.

As for the point under (a) above, I agree with the learned advocate for defendant-applicant that the court below was not right in its division of the land purportedly made under the Pre Ordinance, s. 8 (1). For if this court treated the purchaser as co-owner. the thing which it apparently did, then other co-owners, including plaintiffs-respondent would be debarred from claiming by way of pre-emption by the operation of the Pre-emption Ordinance, S. 7 (d), which reads:

“No right of pre-emption arises in the following cases:

(d) Where a sale takes place between co-owners owning property in undivided shares, or.

However, it will be shown later that the said purchaser was not a co-owner as required by the subsection above referred to.

As for the point under (b) above, I do not see any reason to interfere with the finding of the court this respect. The said court found that the vendor’s agent told the husband of plaintiff of the sale. The court treated this as not being sufficient notice as the said husband was not a properly authorised agent. This may be so though, of course, it is enough that knowledge of the sale should reach the pre-emptor from any quarter. The record shows that no evidence was adduced in this respect. The only evidence that there is, is that the land was first offered to plaintiffs- defendant and that they refused to buy. Even if this evidence is accepted it should not deprive them by the Pre-emption Ordinance, s. 16 (a), to claim pre-emption. This section reads:

“A person entitled to a right of pre-emption loses such right in any of the following cases:

(a) Of whether verbally or in writing by conduct he renounces his right.”

The plaintiffs-defendant and pre-emptors cannot be said to have renounced a right, which was non-existent. This right only arises “upon sale.” The Pre-emption Ordinance. s. ç. The allegation is that they were offered the land before the sale to applicant-defendant.

It remains to consider whether plaintiffs-respondent have a right to pre-empt ‘as against the purchaser. It was conceded that they were co owners within the meaning of Pre Ordinance, s. (a). This right depends upon whether the purchaser is also a co-owner or not; for if he is, then they would be debarred by the Pre-emption Ordinance, s. 7 (d), above referred to. As I see it he is not. The information obtained from the registry office shows clearly that though the purchaser is a co-owner by way of inheritance in three different shares (from his father in shares Nos. 6 and 1 and from his grandfather in share No. 2), yet these shares though included in the same sagia, they are separate and divided from each other and from share No. 8 in which the land in dispute lies and in which the defendant-applicant holds no share whatever. Unlike the system of registration elsewhere where the whole sagia is held undividedly and registered as such, the registration in this locality seems to be divided and separate in respect of every individual share (heisa) though they are included in the same sagia. For this reason the purchaser is and was not a co-owner in the property in dispute within the meaning of the Pre-emption Ordinance, s. 7 (d). Above referred to.

Accordingly, the decree dated September 24, 1964, is set aside. The land in dispute, 4.13/24 Habils Hubils in share No. 8, sagia No. i El Izeirgab is to be registered equally between the two pre-emptors upon payment by them of the purchase price to defendant-applicant.

No order as to costs.

Babiker Awadalla 1. July 14, 1962: —This application, having been referred to me for disposal under Civil Justice Ordinance, s. 176, S hereby summarily dismissed.

I entirely agree with the conclusions of the Honourable judge of the High Court. The grounds submitted by the learned advocate are simply a copy of those submitted by him to the judge of the High Court. It has escaped the learned advocate’s mind that the Honourable Judge of the High Court has rectified the decree of the learned District Judge to an extent making the present grounds appear irrelevant.

* Court: Babiker Awadalla J.