(COURT OF APPEAL)

MOHAMED AHMED KHALIFA v. MOHAMED HAMAD AHMED

AC-REV-548-1967

Principles

  Land Law—Native lodging area—It is a tenancy at will and does not create right or interest in the land

  Pre of property—Pre-emption Ordinance, s. 4 (b)—Tenancy at will which does not create right or interest in the land does not come within the orbit of the word “property”

(i) In native lodging area the Government allots plots to the individual citizens on a temporary basis to erect and occupy temporary buildings. The legal position between the Government and the allottees creates what is known as a tenancy at will, which does not by itself create a right or interest in the land.

(ii) And as tenancy at will is not a right or interest in the land, as such it does not come within the orbit of the word “property” as defined in the Pre emption Ordinance, s. 4 (b)

Advocates: Yahia Mohamed Ibrahim for the applicant

Mohamed Osman El Aragi for the respondent

Judgment

Mahdi Mohamed Ahmed J. September 13, 1969:- is an application for revision against the order of Province Judge, Blue Nile, dated September 22, 1966 dismissing an application to him to revise the decree of District Judge, Kosti, dated May 6, 1965 rectifying the Council records in respect of Plot B. 13 Kosti El Radeef from the name of applicant to respondent by way of pre-emption.

This application is almost a year late. The order of the learned Province Judge was made on September 22, 1966 and this application was not presented until September 28, 1967. However, this court decided to extend the time in favour of applicant because the application projects a point of importance in arriving at a just decision in the dispute.

It has been the law for a long time that a pre-emption right arises in the sale of freehold land. In a recent decision of the Court of Appeal the right was extended to cover an assignment of a leasehold interest. Ahmed Abdalla Hassan v. Hag Abdalla Mohamed Hag Ahmed, AC-REV-536-1966.

            Therefore it is essential to explore the nature of the right or interest transferred by the transaction subject-matter of the present dispute. The Plot in question is situated in what is known as Native Lodging area. In such areas the Government allots plots to the plotless on a temporary basis to erect temporary buildings. The status of the allottees in such areas was defined by the Court of Appeal in the case of Aman Omer Hassan v. Beshari Hassan El Malik and Others, AC-REV-511-1964 (1969) S.L.J.R.000, in the following terms:

“The legal position between the Government and the allottees is, it seems to me, what is known in English law as a tenancy at will. The main features of the tenancy are that (1) it is determinable by the lessor at any time without notice, and (2) it is determinable by the death of the lessee. In either case the lessor generally allows the lessee or his legal representatives to remove anything of value found in the plot. The tenancy at will, being as described, does not by itself create a right or interest in land that has to be protected by law, except for the protection afforded to a person in possession against a trespasser".

It appears from the above that a tenancy at will is not a right or interest in land and as such it does not come within the orbit of the word “property” as defined in the Pre-emption Ordinance, s. 4 (b). The case will be more clear if we classified such an allottee as a mere licensee.

It may be argued that the allottee owns the buildings, and the buildings are an interest in land within the definition of s. 4 (b) of the above Ordinance, and therefore a pre-emption right arises.

It must be observed that the land on which the buildings are situated is owned by the Government. There is a difference of opinion among the jurists as to the existence of a pre-emption right on the sale of buildings where the land is owned by another person. See Mohamed Kamil Mursi’s book Pre-emption in Islamic Law, pp. 78—85. The author believes, in spite of several opinions to the contrary, that in such a case a pre-emption right exists; but he requires contiguity of the buildings themselves and not merely the land. From the trend of his arguments he seems to con template a more than one-storey building. For instance the owner of the first floor can, in his opinion, pre-empt on the sale of the ground-floor. The Hanifite doctrine applied by the Sharia Courts of this country denies the existence of such a right on the sale of buildings except in the case of two-storey buildings by way of "Istihsan".

In the present case no contiguity is proved. The buildings in question, by the terms of the allotment, are of a temporary nature. Respondent’s interest is not in the nature of a leasehold which is granted for a long term ranging from 30 to 99 years.

In my opinion pre-emption is a restricted right that has to be exercised diligently and we would be carrying the matter molar if we extended the right to such precarious interests as the one in question. Therefore if my learned colleague agrees, this application should be allowed and .the order of the learned Province Judge and the decree of the District Judge,. Kosti, be set aside.

Mahdi El Fahal J. September 13, 1969 : —I concur.

The position of occupants in native lodging areas has been described by the Court of Appeal as “a limited and restricted right of occupation that was not capable of being transferred or alienated.” See Aman Omer v. Beshari Hassan, AC-REV-511-1964 involving a plot in a native lodging area known as Beim Musa at the city of Port Sudan.

I agree that there can be no right of pre-emption over land where the occupant has such a restricted right.