Case No.:

AC-REV-259-259-1963

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Prescription—’ Person ‘—Prescription and Limitation Ordinance 1928, SS. 2 and 3— A religious sect is a person

·  Prescription—” Possession “—Prescription and Limitation Ordinance 1928, s. 3— Regular use of tot for prayers constitutes possession”

·                                                  Prescription—” Public “—Prescription and Limitation Ordinance 1928, 5. 3 use of lot for prayers is “ public” use

·  Prescription—” Continuous “—Prescription and Limitation Ordinance 1928, S. 3— Prayers at regular hours on lot otherwise unused is “continuous” use

The head of the Ismailia sect brought this prescription action on behalf of the sect claiming title to a vacant plot in Omdurman on which the sect had held morning and evening prayers and semi-weekly religious ceremonies for at least 22 years. The Judge of the High Court reversed the decision of the District Court, which had granted prescriptive title, on the grounds that “a claim based on prescription can only be made by a definite person or class of persons.”
Held: (1) A religious sect is a “person” within the meaning of Prescription and Limitation Ordinance 1928. 55. 2 and 3. and may therefore bring an action for prescriptive title.

(ii) A regular use of a vacant plot in a residential area by a religious sect may constitute possession within meaning of Prescription and Limitation Ordinance 1928, S. 3.

(iii) The regular saying of prayers and holding of zikhrs on a vacant plot is “public” use within the meaning of Prescription and Limitation Ordinance
1928, S. 3.

(iv) The regular saying of prayers on a vacant lot otherwise unused is “continuous” use within the meaning of Prescription and Limitation Ordinance 1928. 5. 3, even though the use for prayers is not “without cessation for intervals.”

Judgment

                                              (COURT OF APPEAL) *

KHALIFAT KHOLAFA EL TAREIGA EL ISMAILIA v. MOHAMED AHMED              OSMAN

                                                      AC-REV-259-259-1963

Advocaies lbrahim El Mufti ... for plaintiff-applicant (Court of Appeal)

Mahdi Sherif for defendant-respondent

(Court of Appeal)

Abdel Mageed Imam J. July 1, 1963, HC-REV180-1962: —This is an application for revision submitted on behalf of defendant-applicant against the decree of the District Court, Omdurman, CS-1423-1960 dated January 21, 1962, by which part of his register d plot No. 3/31190, formerly known as plot No. 3/3/259, marked “X” in the map attached to this application and equal to 198 squaremetres in area, was to be transferred and registered as part of the adjoining plot No. 3/3/258, to the plaintiffs-respondent.

The respondents brought this action in respect of the piece of land above mentioned, based their claim on prescription; it was alleged that since the Mahdia, or at least as far back as 1938, they have been in public, continuous and peaceable possession. The user and nature of possession of the said piece of land, which is vacant, was stated to be:

(i) Performance of evening and dawn prayers only during summer, and (2) holding religious ceremonies during Ramadans and Bairams, The case was brought in the name of Khalifat Kholafa El Taifa el

Ismailia.

The points, which were considered, were as follows:

(a) Whether respondents have capacity to sue;

(b) Whether the finding was against the weight of evidence in respect of the alleged user;

(c) Whether this kind of user entitled them to prescribe;

(d) Whether the said user was public;

(e) Whether the said user was continuous.

As for (b) above, I think abundant evidence was adduced in this respect; that the vacant land in dispute has been used as an annexe of the mosque which was built in 1938 for the saying of prayers of the Ismailia sect and for holding their peculiar religious ceremonies in the manner described.

I also think that their use was exclusive, in the sense that it has not been shown from the evidence that another sect or persons (as the religious body) had been or would be allowed to have an exclusive use of the place of their performances.

As for (c) above, other elements satisfied, I think this kind of use is enough to entitle the applicants to prescribe, though it is admitted that the said vacant plot lies in a residential area, I do not think that the applicants should succeed only in case this use was of a residential nature.

As for (d) above, I also think that the answer should be in the affirmative; for there is nothing so public as the saying of collective prayers in the open, the holding of zikrs with luminous lights, yelling of hymns and the beating of drums.

As for (e) above, I also think that the applicants’ use was continuous. “Continuous” does not mean without cessation for an interval or intervals. It means without interruption. There is nothing in the evidence that shows that the applicants’ possession had been interrupted.

As for (a) above, I think the answer should be in the negative. A claim based on prescription can only be made by a definite person or class of persons. The law can best be found in the following statement made while distinguishing custom and prescription.

Coke C.J. emphasised the resemblance in quaint language:

“Prescription and custom are brothers and ought to have the same age, and reason ought to be the father and congruence the mother, and use the nurse, and time Out of memory to fortify them both.”

“But for all that there is an important difference between the two methods, for while prescription always connects the right with a definite person, custom connects it with some particular locality. Prescription is personals custom is local. A right is always prescribed for in the name of a certain person and his ancestors, or of those whose estate he owns, and in the name of corporations and their predecessors.” Cheshire, Modern Law of Real Property 507—508 (9th ed. 1962). I agree to the interpretation given by the learned advocate for the applicants of the Prescription and Limitation Ordinance, s. 2: that it excludes fluctuating and uncertain bodies or classes of persons.

El Tareiga El Ismailia includes fluctuating bodies and classes of persons. In this capacity they cannot sue; they cannot prescribe.

In his reply the learned advocate for the respondents raised the following points:

(a) That the Khalifat El Kholafa is a natural person;

(b) That the claim is in respect of the title and not the user of thf land, from which it is understood that they claim as prescribers for title and not usufructuary in r of profits a prendre.

As for (a), the case was raised in the name of Khalifat Kholafa in a representative capacity and not in his personal capacity.

As for (b), it has already been held that the respondents are under an incapacity to prescribe, being an unascertained class of person. I also doubt if they can succeed if their claim was in respect of profits based in custom because:

(a) The claim would be in connection with a privately owned piece of land with no connection whatever with the locality.

(b) The non-existence of any such custom.

For the above, the decree above mentioned is reversed.

No order as to costs.

Rabiker Awadalia J. February 24, 1964: —This is an application for revision against the decision of the Honourable Judge of the High Court, Khartoum, setting aside the decree of the learned District Judge, Khartoum, in CS-1 Omdurman District Civil Court.

The claim is one for rectification of the register of what was formerly known as plot 3/3/259 Omdurman town, by prescription. The said plot, of which the area was only 198 square metres, now forms part of plot

3/3/190, Omdurman, registered in the name of defendant-respondent, but plaintiff-applicant suing on behalf of the El Ismailia sect, claimed that it was in the possession of the sect for over 10 years, peaceably, publicly and without interruption.

It transpired from the evidence that the plot is vacant and unbuilt upon and is situated near a mosque owned by the Ismailia. The acts alleged by plaintiffs-applicant to constitute their possession consisted of holding their religious ceremonies or zikrs twice weekly and also of performing their early morning and evening prayers thereon since the mosque was built in 1938, if not earlier.

Defendant-respondent denied the claim in toto, contending that he knew nothing of the alleged acts of possession, as he was living at Shambat away from the site of the plot but that he was constantly paying the taxes due on the plot.

After hearing evidence on both sides, the learned District Judge gave his judgment in favour of claimants, i.e., plaintiffs-applicant, for the relief claimed.

From that decision, defendant-respondent appealed to the Honourable Judge of the High Court who laid down the five points raised by the learned counsel for defendants-respondent in their application to him, and which, in his opinion, must all be answered in favour of plaintiffs- applicant in order that their claim may be successful. These are:

(i) Whether plaintiffs have capacity to sue.

(ii) Whether the finding was against the weight of evidence in respect of the alleged user.

(iii) Whether this kind of use entitled them to prescribe.

(iv) Whether the said user was public.

(v) Whether the said user was continuous.

He answered all questions in favour of plaintiff-applicant save (i) which he decided in the negative and in favour of defendant-respondent, finding that the Ismailia sect is not a definite person or class of persons and therefore cannot prescribe. He cited a passage, Cheshire, Modern Law of Real Property 5o7—5o8 (9th ed. 1962), where it is said

“A right is always prescribed for in the name of a certain person and his ancestors or of those whose estate he owns, and in the name of corporations and their predecessors.”

He also accepted the argument for the learned counsel for defendant- espondent that the definition of the word “person” in the Prescription and Limitation Ordinance 1928, S. 2, excludes fluctuating and uncertain bodies or classes of persons. He accordingly set aside the decree of the learned District Judge.

It is against this decision that this application is now being made.

Plaintiffs-applicant were represented before us by advocate Mufti and defendafltrP0 by advocate Mahdi Sherif and the same arguments made before the Honourable Judge of the High Court were repeated here.

In my view this application should be allowed. I do not agree with the interpretation by the Honourable Judge of the High Court of the word “person” in Prescription and Limitation Ordinance, s. 2. In fact the word “person” itself is not defined but is stated to include “persons or body or class of persons or any corporate body.” To say that a body of persons is not a person because it is n ascertainable would in my view be unnecessarily and unjustifiably abridging the meaning given to the word by the legislature. If the legislature meant that the body or class of persons should be determinable or ascertainable they would certainly have said so.

The Honourable Judge of the High Court cannot in my view curtail the operation of a Sudan enactment by reference to principles of English law. Sudan courts are entitled to resort to foreign enactments only when it is equitable to do so under Civil justice Ordinance, s. 9, by reason of a gap in the Sudan statute book. If, therefore, there is no gap in our statute book because a Sudan enactment makes provision for the matter in hand, it is not at all permissible to seek the aid of other laws.

In England, the conception of all prescription being founded on a lost modern grant, 12 Halsbury, Laws of England 555 (3rd ed. 1955) and the fact that the English Act only supplements and does not derogate from the common law, makes it impossible for a fluctuating body to prescribe. Cheshire, Modern Law of Real Property 484 (9th ed. 1962). Our Ordinance, on the other hand, is not in this respect affected by any principle of a genera) nature recognized by the English common law. I think that by giving the word “person” a wider definition than is recognized for the purpose in England, the presumption is that we meant to deviate from the principles of English common law. That this is so is borne out by the fact that our Prescription and Limitation Ordinance, s. ç, allows prescription even in favour of the general public if the subject-matter of the claim is an easement. Such a claim is impossible in England because easements there cannot be acquired by the general public, as no grant can be made to an indefinite body of persons. Cheshire, Modern Law of Real Property 505(9th ed. 1962). For the above reasons, I am of opinion that this application be allowed with costs, and the decision of the Honourable Judge of the High Court setting aside that of the learned District Judge, Omdurman, be reversed.

M. A. Abu Rannat C.J. February 24. 1964: —I concur.

 Court: M. A. Abu Ranat C.J. and B. Awadalla J.