Case No.:

PC-REV (Ed Darner)

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Land Registration—Minim urn area—Lund Settlement and Registration Ordinance. SS. 31 and 32—Parry with prescriptive title to land below statutory minimum receives value but not land itself Prescription—Registration—--Minirnum area—Land Settlement and Registration Ordinance, ss. 31 and 32—Party with prescriptive title to land below statutory minimum receives value but not land itself

Defendant held the plot of land in question adversely against plaintiff for more than the prescriptive period. Plaintiff brought suit for recovery on grounds that the plot was smaller than the registrable minimum. The court declared that defendant had the right to’ prescriptive title but ordered in lieu of registration that plaintiff regain possession and pay to’ defendant therefore an amount of money equal to the value of the land.

Judgment

(PROVINCE COURT)

MOH.AMED ATTARI v. OBEID RAHAMA

PC-REV (Ed Darner)

Osman El Tayeb P.1. November ii. 1957: —This IS an application for revision from order of District Judge, Merowe, dated August 13. 1956, in his CS-44- granting plaintiff an order of possession in respect of a piece of land in sagia No. 20, Abu Dom village, and at the same time ordering that plaintiff should pay to the defendant the assessed value of the same plot. Defendant is the applicant.

In 1932 plaintiff’s predecessor in title sold to defendant a piece o land comprising 2.1 sahams (268 square metres) in sagia No. 20. Abu Dom village. Defendant paid the price agreed upon, and built a house on that same area that he occupied. The house was once demolished by the flood and rebuilt; it was demolished again in 1949. Then defendant left that area, and built his house in another area outside that sagia. The land in’ dispute remained vacant and not occupied, until in 1954 defendant returned to reoccupy it and started building a boundary wall. Hence the dispute started.

Plaintiff instituted this suit applying for an order of recovery of possession, and although the grounds on which the cause of action is based are not clear, they appear to be: (i) that the sale was for the sake of building a house and residing in it, and now the house has ceased to exist, and (2) that the plot of land is below the registrable minimum.

Defendant resisted the claim on the ground that he has acquired a prescriptive title to that piece of land. That he has been in adverse possession from 1932 and as of right in accordance with the sale is admitted. Had the piece of land not been below the registrable minimum, the plaintiff would have no defense to a counterclaim by defendant for title and the right of defendant would rightly be declared by court. The question of a covenant that the sale was to use the land for residence only has no effect. It is not a restrictive covenant in the sense known in English law, and further there is no legal objection then and now to the use of land registered as agricultural lands for residence.

Defendant applicant has acquired a prescriptive title to the plot in dispute: nevertheless I find myself in agreement with the conclusion reached by the learned District Judge, in that he ordered that detendant should be paid the assessed value of the plot. He followed the direction of the Court of Appeal in Mohamed El Almahi Gibreil v. Wadi El Beshir El Radi (AC-REV-47-1948 (T. A. Maclageii C.J.). In this case the dispute was claim by prescription of a small piece of land inside a sagia land. The relevant part of the judgment is this: “If respondent does see fit to continue her claim. 1 think the learned District Judge should bear two other points in mind. The first is that, should respondent (the claimant) succeed, it may nevertheless be undesirable to give her a title to a small plot of building land in the midst of a large plot of agricultural land in hostile ownership and over which a right of way would have to be defined and in respect of which, incidentally, she has never claimed. It may in those circumstances be better to assess her relief in damages.”

The decree of the court below, and which I make as my decree in this revision, should be a declaration that applicant is entitled to a prescriptive title in respect of 2.1 sahams (268 square meters) in sagia No. 20, Abu Dom. and in lieu of order of registration which if made would be in contra vention of Registration Rules it is to be ordered that plaintiff pays to defendant the assessed value of the land by way of damages. This would have been a preliminary decree and when the amounts of the damages are ascertained there shall be a final decree.

Editors’ Note. —But see Omer Mohamed Tameem- v. Nafisa Ahmed Abde’l Hamid. AC-REV-22O19 (1962) S.LJ.R. g (Babiker Awadalla J.). In Mohamed El Mahi Gibreil v. Wadi El B.eshir El Rddi, AC-REV-47- 1948, cited above, plaintiff brought a civil action. CS-6-1948 (Merowe). Claiming prescriptive title to a plot less than 20 meters square in sagia 31. El Gereif village. Merowe District: prescriptive title was granted by District Judge Abdel Mageed Imam and affirmed by Lomax J. of the High Court. Northern Circuit (HC-REV- T. A. Maclagen C.J. with W. O’B. Lindsay J. Concurring, sent the case back to the District Court’ for findings on the relationship between the parties to prove plaintiff’s hostility in accordance with Prescription and Limitation Ordinance, s. 4 (3). In accord ance with the direction of the Chief Justice, Abdel Mageed Imam D.J., in the judgment on rehearing, July 3, 1949, stated in relevant part: “Fresh evidence has been produced by plaintiff to prove the said point. And from the sum total of this evidence I think plaintiff could prove that her possession was hostile to that of defendant. . - - It seems to me that that dispute terminated the de facto relationship between them . . .. For the above reasons I think plaintiff should succeed on this further hearing. And as it was rightly pointed out by the Court of Appeal that registration in the name of plaintiff of so small a plot in the midst of hostile possession is undesirable, I am awarding her £S.10 damages for a relief which I think a reasonable [as assessed by the Omda of the locality and taking into consideration that defendant admitted offering £S. to her (plaintiff) as [price on a previous occasion...” /