(COURT OF APPEAL(*

PI-HLLIPS MORGOS v. MAHFOUZ ABDEL MASIH

AC-REV.469-1965

MAHFOUZ ABDEL MASIH V. FSFATE OF HAMII HASSANEIN AND ANOTHER

AC-REV.493-1965
Principles

Judgment

Advocates: Abdalla Nagib and Fawzy El Tom………………………. for applicants

Babiker Awadalla C.J. March 8, 1966:—Plot 9 (i) Block 4 HilIet Hamad, Khartoum North—of which the area is 531 sq.m.—was the property of heirs of Hamid Hassanein who died in Khartoum North on September 9, 1957.

In partition proceedings instituted by the heirs before the Sharia Kadi of Khartoum North it transpired that the plot in question was incapable of partition amongst the heirs and on January 6, 1962, the Kadi passed an order of sale and referred it to the District Judge, Khartoum North, for execution.

At that time the share of the widow—i.e., 99 sq.m.—was the subject of a suit before the High Court. Khartoum, in which a certain Mahfouz Abdel Masih claimed rectification of the register in his favour by purchase. On July 15, 1961, restraint of dealings on that share was ordered by the learned District Judge who was handing the case in the High Court, and that order was entered on the register of the plot on July 17, 1961.

Mahfouz .Abdel Masih applied to the Sharia Court in the partition proceedings contesting the order of sale and on December 21, 1961 (i.e., before passing the order of sale), the Sharia Court wrote to the High Court to remove the restraint on the share of the widow so that the plot could be sold free from any adverse claims, on the understanding that the claim of Mahfouz—if successful—should attach to the proceeds of that share. On January 3, 1962, the High Court replied consenting to the procedure and the Sharia Kadi passed his order first above referred to for the sale ,of the plot and the attachment of the share of the widow in the proceeds pending the disposal of the claim by Mahfouz.

It does not appear that the order of restraint, though agreed to be revoked by the High Court as a result of the request by the Kadi, was formally expunged from the register and the learned District Judge, Khartoum North, proceeded with the formalities of sale without consulting the register.

He first obtained a valuation from the local authorities who assessed the house at £S.I;900. On January 17, 1962 he issued notice of sale by public auction to be conducted on February 9, 1962. On January 18, 1962, i.e., one day after notice of sale was issued, the learned District Judge, Khartoum High Court, disposed of the High Court suit by passing a default decree in favour of Mahfouz of rectification of the register. That same day he also wrote to the Kadi, Khartoum North, asking him to stay sale of the plot in question owing to the fact that a decree had been passed in favour of Mahfouz for rectification of the register. That letter seems to have been ignored by the Kadi apparently because interference with his original order of sale—which was well on the way towards execution—would have been prejudicial to the interests of the proprietors who were all consenting to the sale.

The Land Registry Office was not notified immediately of the result of that suit because, according to the practice followed in the High Court, a default decree ordering rectification of the register cannot be sent to the Land Registry concerned before the lapse of one month from the date of issue, and it was for that reason that the decree in question did not reach the land registry office of Khartoum North before February 18, 1962.

But more than a week before that date. i.e., on February 9, 1962, public auction for the sale of the plot in question was conducted and the plot knocked down to one, Phillips Morgos, for a sum of £S.2,525- which was paid into court the next day (i.e., on February 10, 1962) and the Sharia Kadi informed.

On February 18, 1961, advocate Abdulla Nagib on behalf of Mahfouz Abdel Masih filed an objection to the learned District Judge, Khartoum North, .praying for the sale to be set aside under Civil Justice Ordinance, Ord. XV, r. 46 (2).

In that application Advocate Nagib attacked the sale on two grounds. In the first place, he contended that as the plot in question was subject to an order of restraint of dealings concerning, the share of the widow, then any disposition of the plot by sale would be void under Civil Justice Ordinance, s. 204. Secondly, he tried to invoke Order XV, r. 46, contending that as Mahfouz was a person whose interests were affected by the sale within the meaning of rule , then he is entitled to apply for that sale to be set aside on the material irregularities committed both in publishing and conducting the sale. According to the learned advocate those irregularities were as follows:

i. No certificate of registration was laid before the court in consonance with rule 4.

ii. No proper notice of sale was made in compliance with rule 28.

iii. The provisions of rules 38 and 39 were ignored and, instead of the purchase price being paid by two installments, it was allowed to be paid all at once.

iv. No order of confirmation of sale was made under rule 46.

The learned District Judge dealt with that application on March 27, 1962, and although he purported to dismiss it (on the ground that applicant had failed to invoke the privilege given him by rule 42) yet he withheld confirmation of the sale in respect of the 99 sq.m. which were on the date of that decision registered in the name of Mahfouz.

It is to be noted here that on February 28, 1962, Mahfouz acquired by purchase for £S.239.500m/ms. another share in the same plot, viz., that of Mohamed Hamid Hassanein (one of the heirs of Hamid Hassanein) amounting to 42 sq.m. That transfer was entered on the register the  same day although by that time the whole plot was already sold by the District Court to Phillips Morgos. In my view the failure of the District Court to notify the land registry of the result of sale might have materially contributed to the highly suspicious activities of Mahfouz in this respect.

Both Mahfouz and Phillips Morgos applied for revision against the decision of the learned District Judge. His honour the Province Judge who dealt with these applications, revoked the decision of the learned District Judge, and sent the matter back for a proper investigation with a view to the determination of certain points suggested by him. The learned District Judge who reconsidered the matter, disposed of the objections raised on behalf of Marfouz by Advocate Nabig as follows:

1. As regards section 204. the learned District Judge decided that the section was not applicable because there was in fact no valid restraint on the share of the widow on the date of sale, for the High Court—on whose order the restraint was imposed—had consented to remove that restraint and, although it purported to stay the sale by letter dated January 18, 1962, addressed to the Sharia Court, the learned District Judge who conducted the sale had no knowledge of such a step and a good title could therefore pass to any bona fide purchaser consequent on the sale in question.

2.As regards the irregularities, he decided that at the material time the objector had no interest affected by the sale and that, even if he had, he had sustained no substantial injury justifying the setting aside of the sale under Civil Justice Ordinance, Ord. XV, r. 46. He accordingly made an order of confirmation of the sale under rule 46.

Mahfouz applied for revision to His Honour the Judge of the High Court and his application was dealt with by Dafalla El Radi, Acting Province judge, who differed with the learned District Judge in his conclusion that Mahfouz suffered no substantial injury and accordingly set aside the order of confirmation in so far as it affected the share of Mahfouz (i.e., the 99 sq.m. acquired by purchase from the widow).

Both Mahfouz and Phillips Morgos are now applying to this court for revision against the above order.

Before us, Advocate Nagib reiterated the arguments already made before the learned District Judge. Advocate Fawzy El Tom appeared on behalf of Phillips Morgos and he argued that a restraint of dealings is not an attachment within the meaning of the Civil Justice Ordinance, S. 204, and that even if it were, the High Court agreed that sale should proceed and that the restraint be removed. As regards the irregularities in the sale proceedings, Advocate Fawzy contended that the rules in question were only applicable where immovable property is sold in execution of a decree. Even if this is not the case, he contended that no substantial injury was caused to the objector by reason of such irregularities.

In my view the application by Phillips Morgos should be allowed and that of Mahfouz, the objector to ‘the sale, should be dismissed and that Mahfouz should bear the cost of both applications. The learned District Judge who confirmed the sale of the whole plot was in my view right and the decision canceling the sale in so far as it affected the objector’s share was in my view wrong.

It is obvious that the learned advocate for Mahfouz laid unnecessary stress on the fact that the share in question was shown on the register to have been subject to a provisional order of restraint of dealings made at the instance of the High Court. But let us a for the sake of argument that the restraint in question was valid, does the Civil Justice Ordinance, s. 204, stand in the way of a transfer of property by sale in pursuance of an order of a competent court? Certainly it does not, for

transfer of this kind is not a “private transfer or delivery of property” within the meaning of the Civil Justice Ordinance, s. 204.

Furthermore, and still assuming that the said order was valid when made, I think that that order had—to all intents and purposes—no doubt ceased to exist so long as the court which passed it agreed that it should be ignored for the purposes of the sale and both the court that ordered the sale and the court that conducted it did so ignore it. The subsequent letter by the learned District Judge, High Court asking the Kadi to stay sale, was in my view nothing but a request which in the circumstances it was quite outside the Province-m toEomply with However, this letter was never brought to the notice of the learned District judge who conducted the sale and I entirely agree with the view that this letter should not be allowed to interfere with the rights of a bona fide purchaser.

But quite apart from the above, I think there is a strong argument against the validity of the practice prevailing in the civil courts of making an automatic re on registered land whenever a civil suit concerning that land is instituted.

A Civil court does not have more extensive powers where the subject- matter of the suit is immovable property than what it has in other cases and, therefore, a defendant’s power of disposition over his land can in no way be restrained otherwise than in accordance with the provisions of Chapter XX of the Civil Justice Ordinance. If plaintiff is unable to bring the case within the ambit of that chapter, thCn his only protection is in the Land Settlement and Registration Ordinance 1925, S. 78. This view is in accordance with the opinion of Maclagan C.J. in a circular letter addressed to the court on November 30, 1947. In that letter Maclagan C.j. condemned those orders of restraint as having “no legal sanction,” adding that the proper procedure in such cases was for the  Claimant to enter a caution in accordance with the provisions of the Land Settlement and Registration Ordinance 1925, S. 78.

The learned advocate for Mahfouz, in trying to exploit to the full certain alleged flaws in the handling of the matter by the learned District Judge, Khartoum North, is in my view simply trying to divert attention away from the real mischief of which all this affair was the outcome. hi my view the whole misfortune in this case arose by reason of the mishandling of the case in the High Court. Quite apart from the wrong order of restraint and the equally wrong effort to restore it, there is nothing in the circumstances of this case justifying the granting to Mahfouz of a decree of specific performance. It is no doubt contrary to all norms of equity to decree specific performance of so small a share owned undividedly by the vendor jointly with other co-heirs. This is the typical case in which damages would have been an appropriate remedy. There is no doubt that the decree in question could not have withstood an attack by the defendant either on reopening or revision.

As regards the irregularities attributed to the learned District Judge, Khartoum Noith, I think the only imperative provision which was ignored is rule 28 of Order XV, fixing a minimum of one month for notice of sale of land. But the important question in this respect is not whether any irregularities were committed, but whether Mahfouz can bring himself within the operation of rule of the Order referred to.

In order to do so he has to establish two things: (1) that he is a person .. . “whose interests are affected by the sale” and (2) that he has sustained substantial injury by reason of said irregularities.

As regards (1). There is no doubt that—at the time of the sale— Mahfouz had no interest whatsoever in the property sold although against one of the co-owners he had a us pendens concerning that co-owner’s share. The word “interests” in rule covers interests of a proprietary, possessory or pecuniary nature (cf. II Mulla, Code of Civil Procedure (12th ed., 1953), p. 899 and therefore cannot be extended to a mere lis pendens concerning that land.

As regards (2). And assuming for the sake of argument that Mahfouz had an interest that could be protected under rule 44, did he sustain any; substantial injury by reason of the irregularity as to notice?

By substantial injury is of course meant gross inadequacy of price realised in the sale. In the present case the property was estimated at £S.I,900 and fetched £S.2,525 and therefore proof of substantial injury would certainly have been impossible. -

It may be that the learned advocate for Mahfouz considers it a “substantial injury” that Mabfouz bad lost the possibility of enjoying the privilege of a co4wner at the auction because he contends that, if the order of restraint was not ignored (i.e., if the 99 sq.m. were not included in the order of sale) and if the sale itself was subsequently con ducted in accordance with the provisions of the Civil Justice Ordinance, Ord. XV, then Mahfouz being a co-owner would have been able to invoke rule 42 of Order XV and acquire the plot in question at the price by Phillips Morgos at the auction sale.

Such a contention is in my view untenable. The hypothesis of Mahfouz exercising a right of pre-emption at the auction sale is counteracted by a much more probable hypothesis in the co-heirs -or any of them—exer cising such right over the sale by the widow to Mahfouz, immediately the decree of specific performance became operative, thereby depriving Mahfotiz of any locus standi at the auction sale.

For the above reasons, the sale to Phillips Morgos of the whole plot is hereby confimedandinOrd odisPoseoftluS matteronceandfor all, it is hereby ordered that Mahfouz shall receive, in respect of the shares now registered in his name, the amounts which would have been paid to his vendors.

Osman El Tayeb 1. March 8. 1966:—I entirely agree, and I have nothing useful to add..

court: Babiker Awadalla C.J. and Osman El Tayeb j.