Case No.:

PC-REV-109-1958(Ed Damer)

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Pre-emtion—Sale by court order. —Preemption Ordinance. s. 7 (a)—Decrees for specific performance not an exception to right of preemption

A court order for specific performance of an agreement for the sale of land is not a “sale of property ... by order of the court” within the meaning of Pre-emption Ordinance 1928, s.7 (a), and thus is not an exception to the right of pre-emption.

Judgment

(PROVINCE COURT)

OSMAN AHMED MOHAME OSMAN v. AHMED MOHAMED OSMAN AND OTHERS

PC (Ed Darner)

Osman El Tayeb p November 23, 1958: —This is a case of pre-emption on sale of date trees. The learned District Judge, without framing issues, dismissed the case on the ground that in a former case (c between the two defendants, vendor and purchaser, in respect of the same trees there was a decree in favour of the purchaser. This being so  he concluded that the case falls under Preemption Ordinance, s. 7, which provides that no right of pre-emption arises where a sale property takes place by public auction.

The learned District Judge is clearly wrong in his conception of law. It seems that the former case was one of specific performance of an agreement of sale, and that the court made the order in favour of the purchaser.

It was ruled by the Court of Appeal in El Sayed El Amin Ahmed El Shotali v. Osman Mokhtar and others (1957) S.L.J.R. 86, 88 (Babiker Awadalla J.) as follows:

“A decree for specific performance is not a sale but is simply an order in personam calling on the defendant to abide by a bargain which he had previously concluded. It is essentially a remedy ordered and not a dealing or transaction concluded by the court.”

It is thus something totally different from a sale by public auction ordered by a court. The right of pre-emption exists at a sale the specific performance of which was ordered by a court.

The decree of District Judge, Merowe, is set aside and the case is sent back for retrial.