(COURT OF APPEAL)

MAHMOUD MANSOUR & OTHERS v. SUDAN GOVERNMENT

AC-REV-205-1967

Principles

  lund Law—Settlement, nature of—Jurisdiction of settlement officer—Power of civil courts in respect of—Settlement decision no bar to litigatiOn in civil courts once registration becomes final_Resettlement and re-regtstrationLand Settlement and Registration Ordinance, ss. 13, 18, 19

During the subsistence of a settlement, jurisdiction of the civil courts to settle disputes in the area where the settlement party operates is ousted and vested in the settlement party. But once the settlement is closed and the registration becomes final under the Land Settlement and Registration Ordinance, s. i8, jurisdiction reverts back to the civil courts and they assume the function of settling disputes in the area.
A settlement decision is not a bar to litigation in the civil courts once the registration becomes final.
A court has no power to cancel the whole of a settlement work or order a new settlement. But if a Province Court is satisfied that a previous registration was erroneous it can apply to the Chief Justice for resettlement and re-regsitration of the said area under the Land Settlement and Registration Ordinance, s. 19 (B)

Advocates: Mohamed I. Khalil & Ahmed Abdel Gadir……………… for applicants

Judgment

Mahdi Mohamed Ahmed J. August 21, 1969:— In this note, I shall deal with 70 applications for revisions starting from AC-REV-205-1967 up to and including AC-REV-275-1967 These applications were presented against the decision of Province Judge, Blue Nile, dated December 21, 1966, dismissing summarily applications to him to revise the decisions of the Registration Officer of the Tiraira Settlement, Northern Fung District.

I had no alternative but to deal with these applications together in one note. The Province Judge dealt with them in one note, and applicant’s counsel presented one application for revisions covering all the cases.

At the outset, I must state that the present application appears to me more like a critical essay of the work of the settlement rather than an application couched in usual form and contemplating a specific decision. I had better elaborate this point before embarking upon the merits.

In the first place the present application for revision was not raised by the party or parties aggrieved by the decisions of the Registration Officer as required by the Civil Justice Ordinance, s. 174 (1). Some appli cants never appeared and presented a claim before the Registration Officer. Others appeared and presented their claim and decisions were given in their favour according to the merits of their claim and nevertheless they were included in the present application. For instance, a certain Fatnia Megalli appeared before the Settlement Officer and claimed that she had been in possession of a certain piece of land for 10 years. The Registration Officer registered the land in the name of the Government in accordance with the provisions of the Land Settlement and Registration Ordinance, s. 13 (2). He granted claimant and registered in her favour a right of cultivation. In spite of that she is the applicant in AC-REV-269-1967

   In the second place the application for revision did not single out any particular decision of the Registration Officer and discuss its merits and point out its errors and defects. On the contrary the application was bent on indicating that the work of the settlement in its entirety is defective.

  Thirdly applicants in their applications did not request a specific relief or reliefs. They asked that the whole of the settlement work should be cancelled and a new settlement ordered.

   In my opinion the form in which the application is couched is not quite regular. It did not point out any injustice or mistakes or errors of judgment which this court is called upon to obviate or rectify. This generality of the grounds for revision and the generality of the relief claimed seems to take the whole matter out of the jurisdiction of the courts.

Furthermore, it seems to me from the general nature of the application and the general nature of the relief claimed that there is a misconception as to the nature of a settlement and the nature of its work.

A settlement is a temporary machinery set up by the law to perform a variety of works. It demarcates boundaries. It defines areas and draws up maps. It sets up a register in accordance with Part III of the Land Settlement and Registration Ordinance. It settles standing disputes in the area specified and effects registration according to the principles enunciated in the Land Settlement and Registration Ordinance, s. 13. A settlement party consists of a Settlement Officer, a Registration Officer, a Survey Officer and a Demarcation Officer, each in his field of specialisation. Once a settlement party accomplishes its mission it is closed and the settlement party is either dissolved or transferred to another party where its services are needed. The register established by it becomes final under the Land Settlement and Registration Ordinance, s. 18, after six months from the date of the decision of the Registration or Settlement Officer unless appeal is presented under section 19 of the above Ordinance.

From the above it appears that a settlement party differs institutionally and functionally from an ordinary law court. It has more powers than such courts and its function is not confined to the settling of standing disputes in the area. A civil court has no power to establish a register. It has no power to order the registration of unregistered land. A settle ment party has such a power. But a settlement party, as already indicated, is of a temporary nature and ends with the end of its mission.

Thus we conclude that during the subsistence of the settlement the jurisdiction of the civil courts to settle disputes in the area where the settlement party operates is ousted and vested in the settlement party. A person who desires to establish a right or settle a standing dispute can only do so before the Registration or the Settlement Officer. If he was not satisfied he can appeal under the Land Settlement and Registration Ordinance, s. 19, to the Province Judge. But once the settlement is closed and the registration become final under section 18 of the above Ordinance, jurisdiction reverts back to the civil courts and they assume the function of settling disputes in the area.

To sum up: a settlement decision is not a bar to litigation in the civil courts once the registration becomes final. This was clearly established by the Court of Appeal in the case of Abdel Rahim Elias & Others v. Heirs of Musa Karrar and Others AC-REV-135-1967 (1968) S.L.J.R. 43. In the above case Osman El Tayeb J. (as he was then) expounded the law in the following clear language:

“I have no doubt in my mind that after the register has become final, it becomes subject to rectification under any of the reasons mentioned in section 85 of the Land Settlement and Registration Ordinance. The first registration or re-registration by the settlement may possibly be procured by a mistake of fact or fraud. These are possible matters that cannot altogether be eliminated and they may possibly occur as in any other proceedings. No immunity or infalli bility can be attributed to a Settlement Officer. The registration that has been procured by a mistake or error of fact or by fraud that could not be rectified by an application for revision must find its way of rectification in a civil suit. In many cases that come before this court, and it was found that the Settlement Officer neglected to entertain a petition that was made to him against a decision of the Registration Officer, and as the settlement was closed and it was not possible to direct the Settlement Officer to hear such petition, the court directed the petitioner to institute a civil suit. It was a matter of justice and fairness to that petitioner to whom justice was denied; and on the other hand it is only contrary to the law.”

The above quotation is a clear authority on the point. The majority of applicants failed to petition the Settlement Officer and if we conceded that some of them did, the Settlement Officer failed to consider these petitions as he ought to. The settlement in question is now closed and the registration has become final as the settlement was conducted in 1963. Therefore, it is impossible to direct the Settlement Officer to hear these applications and applicant has to seek remedy in the civil courts.

The relief claimed by applicant cannot be granted. This court has no power to cancel the whole of a settlement work. For instance it cannot by a stroke of the pen abolish completely an established register. Again this court has no power to order a new settlement. This is under the authority of the Council of Ministers as provided in the Land Settlement and Registration Ordinance, s. 4.

However, if applicants instituted their civil suits and the Province Judge is satisfied that they had genuine claims and the previous registration was erroneous, he can apply to the Chief Justice for resettlement and re-registration of the said area under the Land Settlement and Registration Ordinance, s. 19 (B).

I therefore think the learned Province Judge was right in dismissing the applications summarily and directing applicants to go to the civil courts to establish their claim.

I therefore dismiss these applications summarily.