(COURT OF APPEAL)*

KHIDIR EL HASSAN FADLALLA v. EL FADEL MUSTAFA RIZIG

AC.REV-67-1966

Principles

·  Pre-emption—Loss of right of preemprion—Pre-emption Ordinance, s. 16 (i) (c)—” Had cognisance of sale” means ‘had full and detailed knowledge about the sale”

According to Pre-emption Ordinance. S. 16 (c), the phrase ‘ had cognisance of sale “ does not mean had mere knowledge of the sate, but it means had full and detailed knowledge about the sale; e.g., the purchaser and the price.

Judgment

Advocate: Hussein Wanni for applicant.

Osman El Tayeb J. July 31, 1966: —This is an application for revision from the order of Province Judge, Khartoum, dated February 2, 1966, dismissing summarily a similar application to him from the order of District Judge, Omdurrnan, dated December 18, 1965, dismissing the suit of pre-emption instituted by applicant.

Applicant and his brother the vendor are the registered joint-owners as to the leasehold plot No. 1/3/453 Omdurman town comprising 169 s.m, as to oDe-half each. The second defendant (the vendor) sold his undivided share in the house to first defendant for the price of £S.211.250m/ms and the sale was registered in Omdurman Registry Office on July 18, 1964.

On November 14. 1964, applicant petitioned District Judge, Omdurman, showing his intention to exercise his right of pre-emption in res of that sale. The petition was referred to the Registrar of Lands, and the pre-emption notices were issued on November 17, 1964, and later served on the vendor and purchaser on December 1 and 16, respectively. The pre-emption suit was allowed on December 29.

The defence was that plaintiff has lost his right of pre-emption under the Pre-emption Ordinance, s. 16 (c), by his failure to serve notice of his claim within i days from the date of his cognisance of the sale.

After hearing the evidence the learned District Judge found that plain tiff had cognisance of the sale on October 21, 1964, and he applied for service of notice to claim pre-emption on November 14, 1964. He has, therefore, lost his right of pre-emption under section 16 (c).

Advocate Wanni for plaintiff submitted that the learned District Judge was wrong in coming to this conclusion, since he did not give proper consideration to the meaning of the word “cognisance.” He submitted that it does not mean mere knowledge of a sale, and that it should mean knowledge of all the details of the sale, in particular the purchaser and the price. He further submits that no such knowledge was conveyed to plaintiff, and so plaintiff had the chance to apply within six months from the date of registration of the sale, as he did, under section 17 of the Ordinance.

I find myself in agreement with this submission. On review of the evidence, it appears that the vendor travelled from Omdurman to El Zeidab (where plaintiff resides) and informed him that he was intending to sell his share in the house; all the discussion that took place between them was about the price, on which they reached no agreement. The discussion ended by a statement made by plaintiff to the effect that the vendor had to go back to Omdurman and to offer his share of the house for sale, and whatever price was offered he had to inform plaintiff about it, in order that he (plaintiff) might think whether he should buy or not. The vendor returned to Omdurman and concluded an agreement with the purchaser for the price above-mentioned and caused the sale to be registered without communicating with plaintiff. Plaintiff later heard about the sale, and so he sent his letter dated October 21, 1964, to Registrar of Lands, Omdurman, objecting to the sale. The date of this letter was taken to be the date on which he had knowledge of the But neither defendants allege, nor is there anything in the evidence to show that plaintiff had full knowledge of the details of the sale, md in particular the price of the sale.

It is clear in my mind that the meaning of the word “cognisance in the relevant section is full and detailed knowledge about the sale, espedaJty the purchaser, the price and tbe approximate date of the registration of the sale. This, as it is a common sense irterpretation, is also in consonance with the other provisions of the Ordinance. It provides for notice of application to register a sale (section 15) which must contain all the details and particulars of the agreement of sate, and if the potential pre-emptor does not after receipt of such notice, serve notice of his intention to claim pre-emption within 15 days, he loses his right. So the “cognisance” that makes the pre.emptor lose his right if he does not apply within 15 days must be knowledge of the particulars that ire sup posed to be communicated by the notice of applicition to register a sale. Further, the interpretation of “cognisance” as being mere know ledge without details of the sale would tend to make sectjon 17 obsolete. This section is made part of the law in order to cover the cases where no renunciation was made, where no notice of application to register a sale was made and where no full details of the sale had come to the knowledge of the preemptor.

For these reasons this revision is allowed and a decree in the prescribed form is passed in favour of plaintiff.

El Fatih Awouda 1. July 31. 1966: —l entirely agrees.