Land law - Sale .f land - Failure t •• btain c.nsent and t. register-
,Tranaacti.n null and v.id - Purchas. m.ney irrec.verable.

L!J'4,St,.ttlement.and Regiatrati.n.:, Failureh register •• Ie.f land-

IfJ'e£t, u~.n valid! ty_ .t, ule :':. Whether .mu:£4au manu rec4IVfr&bh.

Limit,U.n ef A~:t.ian •.,7. Land regi .tuti .n ..• Fal!tu~e. te register - Whether
aeti.S .n .anad,barred HY,untimeliness.

Pre.cri pti .n ~, C.-.wners - Ouster - 'NeeeBsi ty .f - Whether .u.ter proven,

+ C.urt I Wacalagan, J

Defendants~ predecessor sold an undivided share of a hosh to_
plaintiff, his half-brother, in 1907. The Governor's consent there-
to was, however, never obtained nor was the sale registered. After
the sale both defendantVs predecessor and plaintiff lived in the
hosh together ~~ith no dividing walls being erected. Following
defendants' predecessor's death, defendants did not live in the

hoah , It was uncertain from the trial record whether defendants'
pr-ede ccaaor- :lied in 1936 or 1⁹39, Plaintiff brought suit for
rectification of the r-egister on the grounds (a) of the 1907 sale

as evidenced. by a eanad , and (b) of a prescriptive title acquired
since the date of that sale.

~~ (i) Uacause of the failure to obtain the Governor's consent
a~d rGgistration the sale was rendered null and void and money paid
thereunder is irrecoverable. Although the courts have been slow

to enforce the r0gi:3tration requirements to defeat bona fide trans-
a·9t ions in t he past, tll<;) time has now arrived when the court s should
oecome strict so as t6 keep the registers up to date.

(ii) Th", cause of act ion based on the aanad was also barred because

it, "IELS t:ntimely.

(iii) As ootW9'21. co-owne!'::", t:1e acts relied upon by plaint iff were
not sufficiE'.nt to ·~st::.bli:;h a pre,,;cript ive claim against defendants'
pred.bc"lss6r be('..ausB there was no "ouster" of him. There had, however 9
bsen such cUE'+"~r of defendants themselves as they_had not lived in

t he hash fcl1cv;i'1g hi.~ ~:ba~G1.n Sino," the date of his death is unc'l ear ,
the case' rmurt be rp.lTJ8.n·l00. t c determin13 whet her- it "l'las prior to ten

El Tigani Mohed Y-lu&ta.fa v. E1 Khi.d.ir Mohed Hag, 3 Sudan Law Reports
(Civil) (1945), AC-APP-6-1944.

Deed.s Registration Ordinance 1907, s. 4. Land Settlement and
Registration Ordinance 1925, s , 28.

Natives Disposition of Land Restriction Ordinance 1918, s , 5.
Prescription and Limitation O~dinanqe 1928.

R3vision

Maclaren, J.:February 15, 1947.\ 'rhe def'endarrt a are the heirs of the
lat Cl Suliman Mustafa! who was a half-brother to Mahmoud r.lustafa Abdel
Rahman , the plaintiff. Plaintiff claimed rectification of the Register'

with reap;ct~ to a 177 aq. metrea undivided ahare in H.ah 129 Ruba 1, Hara

 1, Omdurman Town. The claim waa baaed .n tw. grounds, firat, a aale by

the late Suliman to Mahmoud for LE.11 in 1907 as evidenced by a unad and
aecond and alternatively, by prescription since the date of that aale.

The defendanta, wh. were not represented by an adv.cate at the
be-.ring for aettlement .f i88ues, were f •• lish enough t. deny the validity
.f t'he aaaad] cfHlsequently an issue was framed to detemine whether it waa

  genuine er n.t.  The learned District Judge had na real dofficulty in

deciding that the aanad was a valid deed of aale; but what a waste af his

valuable time it all "Was.

The sale "Was in 1907, and in accordance with the Proclamati.n

publi shed en page 344 a1' Gazette No,78 af 1905, wbi eh was re-enacted I?y

Re~t.ric:ti.n

the Natives Dispo8iti.n .f Lands/Ordlnance 1918, required the G.vern.r's

  consent. The Governor'. consent was det, and ba. never been, .btaine~and

the effect af that fli I u r o to obtain consent, under either the Proclamati.n ar.
the OrdinaDc€-, is to re~d~r'!i~!l_e.tr.a~aac~iQP nu Ll and ~;.~d Ilnd money paid under,

 the transaction is irrecoverable, Moreover, the sale was not registered

in accordance with section 4 .1' the Deeds Registration Ordinance 1907 (which
means that the transaction did not affect the land), Dor in accordance with the
Land Settlement and Registration Ordinance 1925 (which means that the transaction

 is null and void, ~ seciion 28).Furthermore, any cause of action on

the sanad was long since barred by the Prescription and Limitation Ordinance
1928,

Plaintiff's advocate has argued (a) that the civil courts have been

slow to enforce t.h epr-o vi s i an s of the Land Settlement and Registrati.n Ordinance
1925 to defeat a b.ne ~ transaction, and (b) that the Natives Dispositi.n of
Lands Restriction Ordinance 1918 contains a saving clause which provides for th

consent of the Governor being obtained out of time. These arguments are,

I regret to sayj well founded.                                    The civil courts are, to my knowledge,

frequently enforced sale agreements whi ch had n •. t been regi stered, and to
those decrees the Governor usually gave his consent,

In the early days of land regi strati on among un s o ph z sti cated people,
those decisions may well have been in acc.rdance with equity and g •• d

c.nscience; but they were, in my vi ew, wrong jn law, For land regi strati en

t. be a success in thi8 or aDy.~~uDtry, it is essential that the Registers

should be kept up to date.

On all transactions affecting the title to

land, fees are payable, and no one is goin~ to pay those fees, if he can
obtain the benefit of the transaction without. It is hit;h time that all
~~ho buy registered land should realise that, tinless they register their
puro1lase Hithin two months, the transaction is null and void, and the
purohase money irreooverable.

The plaintiff can therefure only re~ on acquisition by presoription,
for whioh the sanad was evidence in his favour. It was, as correctly
stated by the learn9i District Judg8 wbo framed the issues, for the
plaintiff t. 0 prove the acq:uisi t ion, and not, as the learned Diatri<.-t

Jud.ge ,lho gave judgr.lent aeemed to think, for the defendants to prove

that they had ~8-acquired owner",hip by prescription. For the plaintiff

to suco~ed 0;1 thil2 point he must, follOl,rlYlg the leading case of El Tiga.ni
r'lohed Mus-wafe ". El Khidr !.ioh'?d F_ag(AC-APP-e-1944, unreported), prove
tr~t def~nda~ts' ancestor₉ Suliman Mustafa, was "ousted" from the hosh
follo·d.r.g the sale. The evidence is all against such ouster. Mahmoud
fiiustafa Abdcl Rahr.-an himself stJ.ted:

"After the sale my brother, Sulimanp remained in the house by lioenoe.

He was a bachelor. !19 ',vas living as a brdher - a guest rat~er than a
:'er:nanent resident ••• Deceased scme b irnes slept in the r-ccm (i.e., one of
t';'.'~tafa. Abd'3l Rahman 0 S 016. rc.ot:l~) "Ihich is now standing. n

This "lao cont.r<:vlict?d by Bint El Mine bint Mustafa, but affirmed by
!·la.hmou.d r,luztafa and Osman Abd.ulla Haxdd , Even Bint El Min.a admitted that
+'here •. ?era no d iv idi.'1g "aIls between the areas occupied by the numerous
heirs and co-owner-s in this large hash, so, in the absenoe of any ouster
f'r'orn the whole hash, it ',~ou:.i be l~ell nigh impossible for any one set of
:ldrs to prove a prescrirtive title against any other set.

It follm~s that up to the time ,)f Suliman t>Iustafa's death, he had

not been ousted from the hosh, and the plaintiff had not acquired a
prescri~tive title. That should settle' the whole matter in the defendants'
favour; 'but unfortunat~ly it does not. Following Suliman Mustafa's death,
his heirs, the defendants, did not live in the hosh, and so, in 60 far as
they are conoerned, there was ouster. It is for the plaintiff to show

that this ouster has lasted for 10 years, and that he has therefore acquired
a @;o,~c:. :;::resoriptive title since Suliman I.!ustafe's death. He must, in fact,
prove that Suliman Mustafa died 10 years before he brought his action in
September 1946.