Case No.:

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Land Law—pre_emption Co-owner El Toria—Not a co-owner ‘ of land but a holder of a profit a prendre—Pre-emption Ordinance, s. 7 (d) Pre-emption — Co-owner — Pre-emption Ordinance, S. 7 (d) — Hag El Toria — Not a “co-owner” of land but a holder of a profit a prendre  Land Law__Pre-emption Co-owner of trees not a “co-owner” of land supporting them Pre of trees not a co-owner of land supporting them Custom—Hag El Toria—Not a co-owner of trees on land supporting them but a holder of a profit a prendre

First defendant. Au, sold land supporting date trees to second defendant. Fad! El Mula. Plaintiff, Omer, brought suit to exercise his right of pre-emption oil the grounds that he was a “co-owner on the sale of an undivided share” in the same land. Second defendant had “Hag El Toria” rights to one-half the produce of the date trees on the land. District Judge gave judgment for plaintiff on the grounds that he was a “co-owner” under Pre Ordinance 1928. s. (a). The Province Court reversed on the grounds that although second defendant, purchaser, was not a co-owner at the time of the sale; and therefore did not have the defence against pre-emption under Pre-emption Ordinance 1928. s. 7 (d), the purchaser was a “co-owner” of the date trees on the l sold and was therefore a co-owner in undivided shares of the land since date trees are “permanently affixed to land” within the meaning of Pre-emption Ordinance. 1928, S. 4 (b); and thus purchaser had a defence against plaintiff’s preemption under Pre-emption Ordinance. 1928, 5. 7 (d). The Court of Appeal found that the plaintiff had pre-emption rights not as a co-owner, but as an “adjoining owner, in the same unit of irrigation under Preemption Ordinance 1928. s.5 (c). The question therefore arose whether second defendant, purchaser, had prior rights of pre-emption to the sale of the land under Pre-emption Ordinance.
s. 8 (1), arising from his” co-ownership” of the date trees thereon,
Held: Second defendant, purchaser, was an owner of rights of Hag El Toria giving him not an ownership of an undivided share in the trees, but merely a right to a share of one-half of the crop. a profit a prendre; he therefore has no defence against pr as a co-owner under Pre-emption Ordinance 1928. S. 7 (d).
Obiter dictum: Even if second defendant with rights of Hag El Toria were considered an owner of an undivided share in the trees, this gives him no ownership in the land supporting the trees, and therefore no protection from pre-emption as a co-owner under Pre-emption Ordinance, 5. 7 (d).

Judgment

                                                   (COURT OF APPEAL) *

                     OMER ALl OMER v. FADL EL MULA EL HUSSEIN AND OTHERS

                                                         AC-REV-64-1958

Osman El Tayeb P.1. November 20, 1957. DC-REV-88- (Ed Darner)

Plaintiff-respondent applied for exercise of his right of pre-emption in respect of 21 shams in Sagia No. 63. El Zouma sold by first defendant to second defendant. The date of sale and registration that are usually of vital importance in a pre-emption case, were not specified with accuracy. It is stated that the sale took place in 5956 and, as the first defendant (the vendor) failed to register, the second defendant (the purchaser instituted a civil suit, and consent decree for specific performance was granted on April 24, 1956. Plaintiff applied for service o pre-emption notices on April 25, 1956, and without going into more details as to dates, it appears that he had followed his case with diligence.

Plaintiff succeeded on the grounds that he is a co-owner in undivided share in the same sagia and same unit of irrigation. The whole sagia is registered in undivided shares, but divided into three parts; each past is irrigated separately by a dulab. Plaintiff has his share in the same part with that sold and irrigated by one dulab. The purchaser if he is ever found to be a co-owner has his share in another part irrigated by another dulab.

There is an important point that was overlooked by the learned District Judge, that is, that the purchaser was not a co-owner at the time of the sale. He, some time later and while the case was pending before the court, became a registered co-owner, by inheritance from his father; he only became a co-owner when his name appeared on the register on January 17. 1957. The right of pre-emption exists in favour, of a co-owner on sale of an undivided share to a person who is not already a co-owner in the property sold. This is clearly provided by Pre-emption Ordinance 1928, s.5 (a). This purchaser was not already a co-owner; he only became a co-owner after the sale.

There is an admitted fact, which makes me allow this application. The purchaser is a co-owner of some date trees on the land sold. He had, some years ago, entered into an agreement with the owner of the land to grow date trees, to be jointly owned by them fifty- fifty. The right of pre-emption exists in property sold, and property is defined by the Pre-emption Ordinance to include “land and buildings and things permanently affixed to land,” and as applicant is a co-owner in the date trees, he is a co-owner in the property old, and further he is a co owner in undivided shares. If I am right in this, and as I decided that the applicant is a co-owner in the property sold in undivided shares, no right of pre-emption exists in the sale made to him. See Pre-Emption Ordinance

1928, S. 7 (d).

I have, therefore, to reverse the decision of the learned District Judge b setting aside his decree, dated June 29, 1957.

Babiker Awadalla J. September 15, 1958: —This is an application by a certain Omer Ali Omer of El Zouma, Merowe District, against the decision of His Honour the Province Judge, Northern Province, reversing the decision of the District Judge, Merowe, dated June 29, 5957, by which applicant was declared to have established a pre-emptive title over 21 sahms of land sold by first respondent to second respondent in Sagia No. 63, El Zouma.

The sale against which pre—emption was sought in the District Court is alleged to have taken place about April 1956 and it is not contested that both applicant and the vendor are co-owners in the said sagia. The original application was based on the fact that at the material time, i.e., the date of sale, the second respondent owned no land registered in his name in the sagia in question, although he was entitled by inheritance to a share in the lands registered in the name of his father who died some time before the date of sale.

During the hearing it transpired that this sagia, though shown on the register as held undividedly, was in fact divided into three distinct sagias, each with its separate dulab, and that even within these three separate sagias individual shares are, by agreements held dividedly. It is also admitted by both sides that the shares of applicant and first respondent are both within the middle one of the three sagias and lie contiguous to each other. The share inherited by second respondent lies in the southern sagia of the three. In our opinions therefore, applicant is entitled to pre-emption on the ground that he is an adjoining owner on the sale of land adjoining his own and within the same unit of irrigation.

We now come to the more interesting point on which His Honour the Province Judge based his decision, that the purchaser is a co-owner of date trees on the land sold. It is not contested that for a considerable time purchaser was cultivating date trees on the land sold under the custom known as “Hag el Toria.” The Province Judge said that because date trees are permanently affixed to land, they are property within the meaning of Pre-emption Ordinance, S. 4 (b) and therefore second respondent is a co-owner in undivided shares in the property sold. We do not think that this view is correct because, an owner of “Hag el Toria” is not an owner of an undivided share in the trees planted by him, but he is simply the owner of a right to a certain share in the crop. He owns no definite interest in the land or date trees and his interest amounts to no more than what, in English law, is enjoyed by the owner of a profit a prendre. But assuming that the Province Judge’s interpretation is correct in that the owner of “Hag el Toria” is an owner of an undivided share in the trees planted by him, how can such ownership entitle the owner to preemption when the thing sold is not the tree but the land? The property sold within the meaning of Pre.emption Ordinance 1928, S. 4 (b) is the land and any person who claims priority in the purchase must show that he is a co-owner in such land.

. We are therefore of opinion that the decision of the District judge is correct and ought to have been upheld.

This application is therefore allowed and the decision of the Province Judge is reversed and that of the District Judge restored. The second respondent shall pay the costs of the applications both here and in the District Court.

M. I. El Nur 1. September 15, I958: —I concur.

Court: Babiker Awadalla J. and M. 1. El Nur I.