(COURT OF APPEAL)*

SIDHOM BASIL IOUS AND OTHERS v. HEIRS OF MOHAMED OSMAN GAILY

AC-REV-184-1966

Principles

·  Pre-emption—Pre-emption notice—Pre-emptiori Ordinance, s. 11 (1) (b)—” Date of service of notice” means the date of receipt of form by court of jurisdiction.

The date of service of notice under Pre-emption Ordinance. s. 11 (1) (b), does not mean the date of actual service to purchaser and vendor, but it means the date of receipt of notice duly completed by court of jurisdiction.

Judgment

Advocates:  Salah Marhoum………………….. For applicants

                         Hamid Elias……………………… for respondents

Osman El Tayeb J. August 28, 1966: - This is a case of pre-emption in which the point raised is very simple. It relates to the meaning of service of notice to claim pre-emption in the Pre-emption Ordinance, s. 11 (1) (b). The person seeking to exercise a right of pre-emption has to serve notice of his claim on the vendor and purchaser and “within thirty days from the date of service of such notice shall institute a pre emption suit..’’

Respondents (as claimants) applied to the Land Registry Office on September 29, 1962, to serve pre-emption notices as required under sec tion it on the vendor and purchasers (defendants and applicants). The Acting Registrar of Lands signed the notice on the same day. The actual service (presentation and procuring of the signatures of the persons on whom the service was made) was made on November 19, 1962, and it was registered in the prescribed form bearing the number of deed on February 23, 1963. Then it was sent to the District Court, that it reached on March 23, 1963. On March 27, 1963, respondents (claimants) filed their petition to institute a suit of pre-emption.

The submission of the learned advodafe for applicants in tflis and in the courts below is that as respondents had failed to file their petitior to institute a suit within thirty days from November 19, 1962 (the date I actual service), they lost their right. This is the main point for our decision. The learned Province Judge Salah Shibeika, in his well-written judgment, overruled the learned advocate for applicants, on the grounds that since the notice was to be served through the agency of the L.d Registry Office, as is required by law in the case of registered land, then the date of service of the notice cannot be the date of actual service, but it must be the date of receipt of the notice duly completed hy th court of jurisdiction. I find myself in agreement with this opinion. The claimant having made his petition to the Land Registry Office, he is no longer concerned with the process of service and he is not to know how and when the process was taken and actually executed, before d forms Were being diily completed nd renirned to the court of jurisdilon.

Th Land Registry Office iss out the notices to claim pre-emption in the prescribed form to the process-server. The latter has to seek persons mentioned in the notices according to their addresses, and effect the service by presentation and obtaining the signatures of those person on the notices. He returns the notices to the Acting Land Registrar who has to give it a number of a deed and make an entry cf it on the regis Being ccmpleted as described, the forms are sent to court. Thi claimant has no chance and is not allowed to interfere in this process, and he does not know when the actual service was made, his knowledge starts from the date of receipt of the forms by the court, and from such date time starts to run against him. In this case respondents instituted their case in time.

I cannot conclude this judgment without commenting on the negli or rather apathy of the Acting Registrar of Lands, Khartoum, who handled the pre-emption notices in this case. How thes notices took as as six months in order to complete. Apart from his assumed knowledge of the urgent nature of a claim of pre-emption, the Acting Registrar of Lands (Sayed Saeed Mohamed Au Shendi) was generally in the least negligent; the delay in carrying out the execution of the noticer in Jme caused this prolonged litigation, which would have been otherwise avoided.

This application is dismissed with costs.

El Fatih Awouda J. August 28, 1966: —I concur.