Case No.:

AC-REV-16-1961

Court:

Court of Appeal

Issue No.:

1962

Principles

· Tort—Trespass—Remaining on land of another after right has expired—Mesne profits Civil Procedure—Frame of suit—Civil Justice Ordinance 1929, S. 51 (2)—Action of mesne profits and suit for possession are separate—Mesne profits prior to suit for possession barred

Held: (i) If a person who has lawfully entered on land belonging to another remains on the land after his right of entry has ceased, he commits a trespass for which an action of mesne profits lies.
(ii) An action for possession of land bars any subsequent action for mesne profits which accrued before the action for possession. Civil Justice Ordinance
1929, s. 51 (2).
(iii) An action for mesne profit which accrued subsequent to an action for possession is a separate cause of action from the action for possession and is not barred by it under Civil Justice Ordinance 1929, S. 51 (2).

Judgment

(COURT OF APPEAL) *

NAIMA HASSAN AND ANOTHER v. MURSIHASSAN

AC-REV-16-1961

Advocates: Gaafar Osman for defendant-applicant Ibrahim Ahmed.... for plaintiff-respondent

M. A. Abu Rannat C.J. May 2, 1961: —This is a very interesting case. The two parties were husband and wife, and the facts as far as cab be ascertained, are these.

Plot No. 28 in Block 10c, New Deims, comprising 167 square metres, was and is still registered as leasehold property from the Sudan Government for a term expiring on December 31, 1972, at an annual rent of 170m/ms in the name of Mursi Hassan Salim.

Mursi and his wife, Naima, were living in this house as husband and wife. On November i, 2956, Mursi divorced Naima and he left the house. On June 3, 1957, Naima brought an action against her ex-husband Mursi claiming ownership of one-third of this house. On August 20, 2957, Mursi resisted the claim and counter-claimed for ejectment of Naima. On October 14. 2957, the District Judge declared that Naima is entitled to one-third of the house in question. On February 27, 1958, the Province Judge on revision, set aside the decree of the District Judge, and dismissed the claim of Naima. On an application for revision by Naima against the decision of the Province Judge, the Chief Justice dismissed on November i 2958,

the application on the ground that the Governor’s consent for the assignment of one-third of the house in question was not obtained. On November 30, 2958, Naima vacated the house in question.

On December i, 2958, Mursi, the husband, instituted a suit against Naima and her son, Mohamed Ahdou, claiming mesne profits at a valued rent of £S. per month for the period November i, 2956, to November 30, 2958. The total claim was valued at £S.5.r On February 16, 2960, the District Judge dismissed the claim on the ground that the defendants applicant (Naima and her son) were not trespassers. On March 3, 1960, advocate for the plaintiff-respondent applied for revision against the decision of the District Judge. On December 26, 1960, the judge of the High Court reversed the decree of the District Judge, dated February 20. 1960, and gave judgment to the respondent for the whole claim of £S.155 and costs. The learned judge of the High Court made this order because the advocate for applicant, Naima, failed to appear on the date fix-ed for hearing of the application by the respondent. Against this decision of the learned judge of the High Court, an application for revision was made to this court.

The first point at issue is whether there was any trespass by the divorced wife. The facts show that she did not in fact oust her husband, but on the latest authorities she is also considered as a trespasser, because be remained in the house after she was asked to leave it.

“A person who has lawfully entered on land in the possession of another commits a trespass if he remains there after his right of entry has ceased.” Salmond, Torts 230 (11th ed. 2953).

The kind of trespass which Naima has committed is known as trespass by relation. He who has a right to the immediate possession of land and enters in the exercise of that right is then deemed by a legal fiction to have been in possession ever since the accrual of his right of entry, and may accordingly sue for any trespass committed since that date: therefore the husband is entitled to claim mesne profits.

The next procedural point is whether under Civil Justice Ordinance, s. z, the respondent is entitled to claim mesne profits because he failed to claim profits when he sued for ejectment in CS- Civil Justice Ordinance, s. r, reads:

“(I) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.

(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

“(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such relief; but if he omits, except with the leave of the court, to sue for all such relief, he shall not afterwards sue for any relief so omitted.

“Explanation. —For the purposes of this section an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

Our Civil Justice Ordinance, s. i, is identical with the Indian Civil Procedure Code, Ord. 2, r. 2. It was held in India that claims for the recovery of possession of immovable property and for mesne profits are distinct claims and separate suits will lie in respect of each claim. There fore the respondent is not barred from instituting CS-2444- but on the other hand it was held that a suit for possession is a bar to a subsequent suit for mesne profits accrued due prior to the date of the suit; but such a suit is not barred to a suit for mesne profits accrued due subsequent to the suit for possession.

This means that the respondent can only claim in damages such profits as from August 20, 1957. Sarkar, Civil Procedure in India and Pakistan 277 (3rd ed. 1954). But the matter cannot be left there because the respondent can only be entitled to such damages since the accrual of his right of entry. The right of entry was not ascertained until November 15 1958, when the application for revision to the Court of Appeal deter mined the

rights of the parties in respect of the house. The claim of the wife applicant) in respect of part of the house was genuine, and she was, according to the evidence, claiming an undivided share equal to one-third of the land. In law, the respondent cannot sue his co-owner in an action of trespass unless the act of the applicant amounts either to the total exclusion or ouster of the respondent or to destructive waste of the common property, which did not happen in this case. Therefore the respondent can only be entitled to such damages in respect of the period between November i and November 30, 19 (i.e., i days) and according to the assessment given by the Commissioner of K1 that the standard rent of this house is £S. per month, the respondent is entitled to £S.

A decree for the payment of £S. 1.500m/ms by the applicant to the respondent will be issued and no order is made as to costs.

M. A. Hassib 1. May 2, 1961: —I concur.

* Court: M. A. Abu Rannat C.J. and M. A. Hassib J.