Conlract-Condition precedent-Action required by defendant

Land law-Sale of land-Consent of Governor-Native heirs of non-native
Limitation of actions-Specific performance-Agreement to transfer registration

of land-IO ~r 5 year period-Implied admission-Verbal admission

Plaintiff sued defendant as administrator of the estate of defendant's
father, an immigrant from Iraq, for specific performance of an agreement to
register land in plaintiff's name. Defendant pleaded (1) that he and the
other heirs were natives of the Sudan, and that the agreement, being-made
without the consent of the Governor under section 2 of the Natives Dis-
position of Lands Ordinance 1918, was void or unenforceable- (2) that
the agreement was subject to a condition which bad not been fulfilled; and
(3) that the right of action was barred by the Prescription and Limitation
Ordinance 1928, Schedule, item 14.

Held: (i) The original sale was made by the father, a non-native, and
an agreement to carry out the sale might be inforced against his heirs,
though natives, without the consent of the Governor .

•• Court: Cumings J.

(ii) Defendant could not plead non-fulfillment of the condition. since
fulfillment depended on action on his part and be did next to nothing to
satisfy it.

(iii) A claim for specific performance of an agreement to perfect a
sale of land by registration falls under item 14 uf the schedule to the Pre-
scription and Limitation Ordinance 1928 which provides a 5 year period of
limitation on suits for specific performance.

(iv) An implied admission of obligation does not renew the right of
action, for the words "verbally or in writing" in section 9 of the Ordi-
nance refer only to express admissions.

(v) On the facts, defendant made a verbal admission within 5 years of
action brought and thereby the right of action was renewed.

Action

1938. Cumings J.: In this case the plaintiff, P. M. Derounian,
a merchant of Khartoum, sues the defendant, Ishag Israil Daoud, a
teacher in the Engineering School, Khartoum, as Administrator of the
estate of his father, the late Israil Daoud, claiming specific performance
of an agreement signed by the defendant, dated October 25, 19_1,
whereby the defendant promised to register plot no. Ill, map 9, Selim
Registration Section in the name of the plaintiff.

The defendant adrni's the agreement, and that it has never been
carried out, but defends this suit on three grounds. 111e first is that the"
agreement is null and void under the Natives Disposition of Lands
Ordinance of 1918 because the consent of the Governor required under
that Ordinance has never been given. He alleges that that consent
is required because tie seller of the land was really the heirs of Israil
Daoud, who were then natives of the Sudan within the meaning of the
phrase as used in s-ction 2 of the Ordinance. Secondly, he says that
his promise was de. pendent on a condition which has not been carried
out, so as to free aim from his liability to register. He says that he
only agreed to register if Abdullah Abu Sin would agree to give up
his rights which 'ie did not. Lastly the defendant alleges that, even
if at one time tr • plaintiff had a good claim for specific performance
of the agreemen., that claim has now become barred under the Pre-
scription and Limitation Ordinance 1928. In the hearing the case has
been fought for the defence practically entirely on the" first and third
defences.

To this the plaintiff replied that (1) the seller" of the land within
the meaning of section 2 of the 1918 Ordinance was lsrail Daoud, who
was not a native of the Sudan: (2) that the defendant did not fulfil

the condition which was to be performed by him. and so cannot rely
on it's non-fulfillment to clear him from liability, as it's non-fulfillment
was itself a breach of the agreement; and (3) that the claim has been
admitted in writing in 1930, and verbally in 1935 and 1936 .

...., In his rejoinder the defendant admitted the admission in writing
of 1930,. but denied the alleged verbal admissions, and the defendant
maintained that the 1930 admission was itself out of time, as the claim
was barred in 5 years under item 14 of the schedule to the Limitation
Ordinance. To this the plaintiff replied that the period was 10 years
under item 16 of the schedule to the Ordinance; and so we arrived
at the issues.

I should add that the petition for this suit was presented on De-
cember 30, 1936, and tbe written admission relied on is dated May
2, 1930. Also that, towards the end of the case, another sort of
admission was suggested, and implied admission arising out of the
defendant not baving answered the plaintiff's letters of 1935.

It is now necessary to set out the history of this case leading
up to tbe agreement of 1921, and we must begin before the Mahdia
when Israil Daoud came to the Sudan from Iraq. He was then a
young Jew, and he was in for an adventurous time, for he was
caught in the siege of Khartoum, of which he contrived to be one
of the survivors. Then he must have found favour with the Khalifa
Abdullahi, for he made the Jew a Moslem and gave him two wives,
one a Dinka and the other an Abyssinian. By the former wife
Israil had several children, of whom the defendant is one. Israil
also survived the Mahdia-he was not a Jew for nothing-and after
it he seems to have returned to his former faith, for his estate was
administered in the Civil Court of Khartoum by estate No. 1 of
1918, or rather by a grant which issued out of the court, at first to
the Official Administrator and then to the defendant; that is how
he comes into this case. Israil's death was romantic too, -for he
went off to Darfur before the occupation, and was no more heard
of. Before he left on his Jast adventure, he had several land trans-
actions with the plaintiff. One of these was by written agreement
dated April 16, 1915, whereby he recited that he had "sold plot No.
III, map 9, Selim," the plot now in question, to the plaintiff who had
become the owner of it, for £ E.150, which he had received, and that
he would register it to the plaintiff "when approval is given." (It
can only be assumed that the parties thought. rightly or wrongly,
that the Governor's approval was required by law.) The sale was

never registered, and then Israil went off to Darfur and died, leaving
the plaintiff with a number of claims against him, including' that for
the registration of plot No. llI, map 9, Selim.

The plaintiff at first claimed for the return of the £ E.150 he
had paid for plot No. III, Map 9, Selim, and other monies paid in
respect of other land sales which did not come off-a sum of £E.485
in all. Then the plaintiff came into contact with the defendant, who
had become administrator, and the 1921 agreement was the result.

It is now time to look at the registration of plot No. Ill, map 9,
Selim. This plot was first registered by the registration officer on
January 30, 1914, in the name of Abdullah Abu Sin Ahmed. In
April of that year Abdullah executed a deed of sale of the whole
plot to lsrail Daoud fa);" a consideration expressed as £ E.35. This
deed was executed by the vendor on April 21, 1914, and the sale
was duly approved by the Governor, Abdullah being a native of
the Sudan. But by a document which was not registered and bore
the date April 19, 1914, the parties agreed on the face of it the'
following restrictions in respect of this plot: (a) a partnership in
cultivation of it between Abdullah and Israil, and (b) in the event
of sale or mortgage by Israil, Abdullah to have first refusal. That
was what was on tbe face of the document, but in the case on it
which was brought about by this case, it was declared that this
transaction was really a mortgage in favour of Abdullah for £ E.20,
being the balance unpaid of the purchase price. This was the state
of things when Isr31' sold to the plaintiff in 1915, and in October,
1921, when the a' 'eement was made. This so called partnership
agreement was sen. to the registry, though' not put on the register.

This was the position when the agreement of 1921 was made,
and it was knowr to both parties. 1 shall not set out the terms of
that agreement here, but shall state it's meaning as 1 find it which
is: The two par ies recognized the sale of 1915, which was complete
except for the egistration (plaintiff had not gone into occupation
and has not done so to this day), and the defendant agreed to
complete it by registering the land to the plaintiff. But the Abdullah
Abu Sin rights were in the way of course, so the defendant agreed
to procure their removal by consent of Abdullah. In consideration
for this the plaintiff agreed to waive all his claims against the estate,
and in addition to pay £E.50 to the defendant. This sum was to
be paid at the time of registration, except that £E.20 of it was to .
be paid when Abdullah has signed his waiver. It is perfectly clear

to me that this £E.20 was for the buying off of Abdullah-that was
the real sum of his mortgage. That was the agreement and it looks
a very good bargain for the defendant. Indeed it is said to have
saved the Estate from bankruptcy; yet that is the agreement that
the defendant seeks to evade; that is not too strong a word for his
conduct.

Since that agreement, and right up to the raismg of this case,
the defendant never got in touch with Abdullah. He says be once
wrote a letter to the Registry, but can produce no evidence of that,
and in any case the Registry is not the agent of Abdullah.' As for
his excuses for not dealing with Abdullah, they are pure nonsense
and he knows it; that Abdullah was in jail (the prison says he
came out before 1919); that the defendant was too busy is bigger
nonsense. Now the defendant says the agreement of 1921 is null
ana void because the Governor's consent was necessary under the
Natives Disposition of Lands Ordinance 1918, and has not been given.
As he has taken the benefit of the agreement, I am not sure that he
can be allowed to repudiate it in this way, but the point does not
arise, because I hold that the Governor's consent was not necessary,
because the seller of the land was Israil, who was not a native of
the Sudan. He clearly is not covered by the definition of a "native"
accepted by the defendant's counsel, as he was not born in the Sudan,
nor were his parents domiciled in the Sudan. He was a native of
Iraq. By the agreement, the administrator of his estate agreed to
perfect a sale that had been effected by Israil, who was tbe seller
within the meaning of section 2 of the Ordinance. The heirs had no
land to sell until the estate had been cleared; that, it seems, has not
yet been effected .. So this highly discreditable defence fails.

Now for the defence as to the failure of a condition precedent
to the registration. ..... This condition was a promise to. be performed
by the defendant himself; to procure the waiver from Abdullah. That
is the promise which I have held he did nothing, or next to nothing,
to fulfil, and is in default over; so he cannot rely on it's non-perform-
ance to free himself from tbe main obligation, to register. As for
the suggestion that all the defendant had to do was to ask Abdullah
kindly if he would waive, that has only to be stated to show how
absurd it is, and I have beld that the meaning of the agreement is
different; in any case the defendant never did ask Abdullah.

There remains only the defence under the Prescription and Lim-
itation Ordinance. The first point is as to when the claim arose

within the Ordinance, and on this I uphold the claim of the defendant.
I hold that the defendant had a reasonable time in which to procure
the waiver of Abdullah and register to the plaintiff, and I hold that
one year was a reasonable time. Therefore the right of action accrued
to tbe plaintiff on October 21, 1922.

The next point is as to whether this claim is barred in ten years
under item 16 of the schedule to the Ordinance, or five years under
item 14. Is this a claim to "specific performance" (item 14) or
"a claim in respect of land" (item 16)? Within the plain and
ordinary meaning of those terms, it is both, but it cannot be both
for tbis would be a manifest contradiction in the Ordinance, and
would be nonsense. I must make some sense out of this obviously
unscientific schedule. Now it seems to me that, seeing that a claim
to the specific performance of an agreement to sell land, or rather
to perfect a sale by registration, is the typical instance of a claim
to specific performance in the Sudan (probably 90% of claims to
specific performances are such), the legislature must have intended
them to have been comprehended by item No. 14. So 1 bold that
the period of limitation is five years. I have not done this without
considerable difficulty, for through all the Ordinance the ten year,
period is giv~n to. land, but that is my opinion, giving /he matter
the best consideration that I can.

The result of this is that the plaintiff fails unless he can prove
some admission by the defendant within five years before Decem-
ber 30, 1936, when tbis suit was begun. He has no written admission,
for that of 1930 will not do. First I consider an alleged implied
admission, raised by the defendant not having answered the plaintiff's
lawyers' letters of 1935. I hold that an implied admission has been
proved to my satisfaction, but that will not avail the plaintiff, because
I hold that the words "verbally or in writing" in section 9 of the
Ordinance refer only to express admissions.

There remains only to consider the alleged verbal admissions
set up by the plaintiff. Here I am faced by a flat contradiction
between the evidence of tbe two parties. The plaintiff's is that in
1935 and 1936 he saw the defendant, and asked him as to this claim,
and was answered by him that he admitted it, but was still procuring
the waiver of Abdullah, and had not done so yet because he was
so busy. The defendant on the contrary has sworn that all the time
from 1930 until tbis case began be never talked to the plaintiff,
though he did see him two or three times. Asked as to the two
letters which the plaintiff says he wrote to the defendant by

lawyer, Mr. Claxton, in 1935 the defendant "cannot remember"
whether he had such letters: But his counsel produced one of them.
and the other was a registered letter. I am sure that he had them
both. His failure of recollection as to them is all the more remarkable
when one recalls that he does remember the lawyer's letters sent him
in 1930. It is difficult to resist the conclusion that the difference
is explained by the fact that his own letter of May 2, 1930, refers
to the two letters of 1930, and so he cannot deny that he had had
them. 1 am asked by the defendant to believe that the plaintiff
was all the time so dormiens that he never asked the defendant
about this matter, though they did meet. I cannot believe that. The
things that are quite certain show that the plaintiff was vety vigilans
indeed. He wrote two lawyers letters to the defendant in 1930 and
1936. And it is strange that the excuse the defendant gave this court
for not seeing Abdullah-that of work-was just the same one that
the plaintiff said he gave him when asked him about the matter. I
have no hesitation at all in accepting the evidence of the plaintiff
as sufficient to establish the verbal admissions in 1935 and 1936,
and in not being able to believe the evidence of the defendant.

I hold that the plaintiff has proved his claim, and that it is
still alive by reason of the verbal admissions of the defendant within
five years of the date on which this suit was begun, and so I dismiss
a defence which has no real merit at all, and is in my opinion a
discreditable search for technical reasons to evade a clear moral
obligation. For those reasons I shall not even consider not giving
the plaintiff his ' costs. r read the order made by this court for the
plaintiff to pay money into court as being in security for the defend-
ant's costs, should he have succeeded in this case, which he has not.
So that money, £E. 7 .750 m/rns, will be returned to the plaintiff.
There will be the usual decree for the rectification of the register of
plot No. III, map 9 Selim into the name of the plaintiff, Abdullah
having been removed by the defendant at last as the result of this
case.

As I have found that the defendant should have registered the
land to the plaintiff years ago, long before 1937 when the land came
into the Scheme, there will be a declaration that plaintiff is entitled
to the rent from the Government since then, and as the rent for
1938 of £E.29.180 rn/rns was received by the defendant he must
pay it to the plaintiff.

Judgement for plaintiff