Appeal and Revision-Record-Coflsideratioll by the Court of Appeal of mat-
ters improperly included in the record

Land Law-Burden of proof-Public sale of private land-Burden on former
owner to shah' irregularity ill the sale=Ovrrcorning lite burden

• Court: Gorman L.S., Creed C.J .. and Flaxman J.

Land Law=Disposal of unoccupied lall(/-For;"ali/i,'.\· of sulc=-Order to sell

Public n[!ici./I-Ort!,'r for sale oj unocrupied lands=-Gov rrnor's stututor y discre-
iion=Excrcise hy District Commissioner

A notice to build under section 3 of the Disposal of Unoccupied Town
and Village Lands Ordinance 1922 having been duly served npon the plain-
tiff. a pan-owner, and not having been complied with, a notice of sale under
section 5. signed by the District Commissioner, was duly posted, but was
not advertised in a local newspaper, In accordance with the notice, the sale
. took place len days after posting. At the time plaintiff was engaged in
proceedings in the Shari a Court for partition of the land. Plaintiff peti-
tioned the High Court to set aside the sale which was refused. In the
High Court the Government put in evidence a file in order to offer certain
specified documents contained in the file. The file was in the record before
the Court of Appeal, the court not having been informed that much of
the file was not in evidence. The file contained no record of a sale order
made by the Governor.

field: ( i ) Notice of sale having been duly posted pursuant to the Or-
dinance, there was not such material irregularity as to invalidate the sale in
the omission of press advertisement or in selling only ten days after notice,
although damages might be claimed in a proper case. I

(ii) The partition proceedings might have been a matter for consider-
ation before issue of the notice to build, but did not prevent the Governor
from ordering sale after plaintiff had failed to comply with the notice to
build.

(iii) The District Commissioner may properly sign a notice of sale on
behalf of the Governor. hut the Governor must himself make the decision
to order a sale, and the absence of the actual exercise of his discretion by
the Governor will invalidate a sale under the ordinance.

(iv) The burden of proving that the Governor did' not order sale
rested on the plaintiff, but little evidence would be needed to shift the bur-
den. since the facts were particularly within the government's knowledge.

(v) The existence in the record on appeal of a file tending to support
plaintiff's contention that the Governor did not exercise his discretion,
which file was included by reason of a faulty entry in the High Court, may
be one basis for returning the case to the High Court for rehearing on the
issue involved.

Dictum: Future sale ought to be upon thirty days notice as in the
case of executions under the Civil Justice Ordinance, Order XV, ~tJle 28.

Disposal of Unoccupied Town and Village Lands Ordinance 1922, SS. 3, 5.

Revision

Advocate: Bennett, Advocate General . _ . for the Sudan Gov-
ernment.

September 1, 1940 Flaxman J.: This is a revision of the decision
of J udgc Sandes of the I:l igh Court, Khartoum, dismissing a petition

by the plaintiff to have the court set aside a sale of his undivided
share in hosh No. 1/1/154 Omdurman Town, which sale was carried
out in September 1938 under the provisions of the Disposal of Un-
occupied Town and Village Lands Ordinance 1922. He claims that
the provisions of the Ordinance were in certain respects not complied
with, and that the sale was improperly conducted, and asks to have it
declared invalid and' his property restored. He made no claim for
damages. The defendants to the action are the Sudan Government
and the purchaser of the plot at a public auction held to dispose of
the property. The area of the plot is 2543 square metres and the
plaintiff is the registered owner of 541 square metres;' and also claims
to have acquired a further 213 square metres by a purchase at present
unregistered. The remaining co-owners are not parties to the action.

The formalities required by the Disposal of Unoccupied Town
and Village Lands Ordinance 1922 commence with a service by the
Governor of a notice in writing directed to the owner of "unoccupied
land" (as defined in the Ordinance) to repair, build or rebuild. In
this case such a notice was issued on behalf of the Governor on Nov-
ember 24, 1937, and a copy was duly served on the applicant. No
question as to the validity or otherwise of this notice was raised or
in issue in the court below. The plaintiff seeks to attack the next
step requisite for disposal of land under the Ordinance, i.e., the
issue of an order for side conseCJ!1ent upon non-compliance with the
notice to rebuild or repair. The plaintiff asserts that, as he and other
co-owners had demonstrated an intention to reoccupy the land in ques-
tion, this power of sale does not arise. This submission, in this court's
view, is without merit. The issue of a sale notice -follows a non-
compliance with the order to build, and although an intention to re-
occupy might be a matter for consideration prior to the issue of a
notice to build under section 3 of the Ordinance, \ it is not a relevant
factor when the exercise of the power of sale under section 5 is under
consideration. In this case the issue of the notice of sale followed
an admitted failure of the plaintiff to build, and there is nothing
before the court to show that, if the Governor's discretion to order
sale was exercised at all, it was not properly exercised.

The plaintiff also asserts that there was failure. to comply with
certain formalities required by the Ordinance, and that these omissions
are sufficient to invalidate the sale. In particular he claims that no
advertisement in the local press as required by section 5 (2) of the
Ordinance was published, that the notice of sale referred to in the

same subsection was not fixed to the land, and that, if the notice was
fixed, insufficient time elapsed between its fixing and the sale by public
auction.

On the issue of fact as to the notice of sale, the court below has
found that the notice was duly posted, and no good reason is shown
by the applicant why this finding should not be accepted by this
court. There seems no reason to consider at length the plaintiff's
other objections to the lack of proper formality. Even if the require-
ments were not complied with, they will not constitute such material
irregularity as to invalidate the sale of the property, although in a
proper case they might give rise to damages. It may perhaps be well
fO observe here that, in this court's view, the time, ten days, .which
elapsed between the posting of the notice and the sale was somewhat
on the short side, and it is to be hoped' that steps will be taken to
ensure that any further sales in similar circumstances are conducted
as nearly as possible in accordance with the terms prescribed by the
Civil Justice Ordinance for sales of land in execution-a minimum
period of 30 days.

It is further urged by the plaintiff that the fact that proceedihgs
for partition were in progress in the Orndurman Sharia Court at the'
time of the issue of the sale notice is sufficient of itself to prevent
the power of sale from arising and to invalidate the sale. This question
must be answered in the same way as that which fell for consideration
under the first issue. Fo~, while such, a matter might be erne for
consideration before the issue of a notice to build, it is not a matter
which will prevent the Governor exercising his discretion to sell once
the notice to build is not complied with. In this case partition pro-
ceedings were pending in the Shari a Court, but they certainly do not
seem to have been prosecuted with any diligence by the plaintiff
or other co-owners.

The remaining issue for consideration requires a more detailed
examination. Framed as issue 2 it reads:

"Was the sale of the property by the District Commissioner,
Omdurman, a proper exercise by the Governor of his power of
sale under this Ordinance?"

It is clear from the plaintiff's argument that he has failed to appreciate
the point which is really in issue. It is not meant, as he appears to
think, that the sale might be invalid because there was irregularity in
the actual publication of the notice of sale under section 5 (2) of

the Ordinance. This subsection does nothing more than enact the
machinery by which a sale ordered by the Governor is to be effected,
and there is nothing irregular in the signature by a District Com-
missioner of any notification giving effect to the Governor's instruc-
tions, and in any event this is the question raised by issues 3 and 4.
Issue 2, on the other hand, has reference to section 5 (1) which
reads: "In the event of the notice not being complied with. the
Governor may sell the unoccupied land and any buildings thereon by
public auction. . .. " Here there is mandatory provision requiring
the exercise of a discretion by "the Governor" before a sale is ordered.
In the view of the learned judge of the High Court "the term Governor
here means the administrative authority of the Province, and properly
includes the District Commissioners administering the various towns
of the Province."

This decision is not upheld by this court. This is an Ordinance
giving the Governor power to interfere with private rights in real
property, and the exercise of the discretion to sell is one which, in the
plain words of the Ordinance, is to be exercised by the Governor
himself. /If any support for this vie~ is required, it may be found
in the perusal of another enactment relating to the disposal of land.
the Natives Disposition of Lands Restriction Ordinance 1918. This
Ordinance gives the Governor power to permit certain otherwise re-
stricted dealings in land. When circumstances made it desirable that
there should be some delegation of the Governor's powers under the
Ordinance, it was found necessary to pass an amending Ordinance to
effect that purpose. No such amendment has been made in the case
of the Disposal of Unoccupied Town and Village Lands Ordinance,
and 'the Governor alone has the discretion to order sale.

This court has now, following the submissions laid before it by
the learned Advocate General, to consider where the onus of proof
that such a discretion was not exercised lies. No evidence was called
by the applicant in the court below to show a lack of the exercise of
such a discretion, and it is submitted that he has failed to discharge
the onus of proof which was upon him, and that his claim should be
dismissed. The question of the onus of proof in this instance is not
a simple one, and it may be doubted if the applicant fully appreciated
the need for discharging the burden. It was, of course, open to him
to endeavour to do so. He could have called the Governor. or have
taken advantage of the procedures of discovery and interrogatories in
an attempt to satisfy the court below that there was no proper exercise

of the Governor's discretion. This he did not do. In view of the
fact that the matter in question was one which was particularly within
the knowledge of the first defendants, a slight weight of evidence on
his side would have been sufficient to shift the onus to the first defend-
ants ... It has been submitted that in any case there is a strong pre-
sumption in favour of the Government that, when official functions
are exercised, they are exercised properly, and that this obstacle also
should have been surmounted by the plaintiff. It seems that if evi-
dence is available to prove or disprove the very fact in question undue
weight should not be given to this presumption. In any event a
circumstance has arisen which has thrown a new aspect upon the
question of the burden of proof in this case. In the record of the
court below the following entry appears:

"Advocate General. Mr. Bennett, formally puts in a file
containing agreed Exhibits, stressing particularly ... "

This file, Exhibit A, formed part of the record before this court, and
was duly perused by its President and members. It purports, from
its title, to contain a record of transactions affecting the land in
question here. It was observed that it contained no record of any
formal exercise by' the Governor of his discretion in the case of this
sale under section 5 (1), and at an adjourned hearing Mr. Bennett
was requested to address this court as to whether, the file being in
evidence, it was not sufficient evidence of absence of consent by the
Governor to shift the burden of proof of consent to the first defendants.
The learned Advocate General then gave a categorical denial that
there was any intention to exhibit the whole file, wnich he stated was
put in to exhibit certain specified documents only, and requested a
reference to the learned judge in the court below to confirm this. This
confirmation was, of course, given, and this court is now in the diffi-
cult and delicate position of being aware of a fact, the lack of certain
documents, which might go a long way to establi h the plaintiffs
claim, which it has obtained by the perusal of a file which it was not
intended to exhibit in itS entirety in the court below. It has knowledge,
obtained by reason of a faulty entry in the record of the High Court,
which might be of material importance to a just decision in this. case.
It has to determine whether in all the circumstances it should
close its eyes to this knowledge, and allow the plaintiff's claim to
fail by reason of a technicality. The learned Advocate General
reasonably submits that this court should not be astute to aid the
applicant, who himself bases his claim on a technicality, and should