Administrative law - Notioe of sale - Whether provisions of disposal

of unoccupied town and village lands Ordinance 1922 are "directory"
or "C'.bsolute".

Land lal~ - No.t~~ t~ rbu~ld undeI;, Disposal of Unoccupied Town and Village
Lands Ordinance 1222 - Effect of conflict l~ith local ~o~er~
regulation - Whether requirement cf notice of sale before public
auction required by same ordin'ance is "dire ct o I"'J' , or "absc Lut e'",-

1. A notice under section 3(b) of the Disposal of Unoccupied To"m
and Village Lands Ordinance 1922 calling upon the OHner to build is
not illegal and therefore void if the plot is sub-minimum under
Standard Local Government (Municipalities) Regulation 18, because
procedure in <"v:',U",blc under- 1941 L.'~.O. 1;0. 67 wher-eby building
r.1<:'.y U'i'Y(l<etli e.l. J,<;s, 'be· peTl'ii :tt'ed>

2. The requiremQnts of section 5(2) of the scme ordinance as to
$>1iioo before s4e are mandiltory and not directory, so "Ihere the
Sheikh gave verbal notice to interested porties ti'IO days before
the auction and. 110 other notioe was given, the requirements of the
cect i on Here not complied i'lith and the sale ill null end void •

. Liverpool Boroug'h nu.nk v~~~£ (1861) 30 L.J. Ch.379.

Howard v •. Eodingt0n (1877) 2 P~D. 203.

Dispos~l of Unoccupied Town and Village Lands Ordinance 1922, ss.3(b)
and 5(2).

Standard Local. Government (MuniCipalities) Regulation 18, as amended,
1941 L.R~O. No. 67.

* Court: Platt t J.

As to the first, he draws attention to the modification by' 1941 L.R.O.

No. 67 of regulation 18 of the Standard Local Government (Municipalities)
Regulations 1938 in its application to Omdurman by whicn it was not an
absolute impossibility for the. plaintiff to build on the plot provided
that in pursuance of the procedure laid down in the amending legislat ion
he submitted a building petition. As to the second, he points out that
section 5 of the ordinance does not require service of.a notice on the
o"mer before sale by public auction. At the same time he admits that the

reciuiremepts as to notice under that section were not complied I~ith, but

s~s that, following practice, notice was given verbally by the Sheikh

to all who might be il).terested, such as neighbours, instead of "by fixing
a notice outside the Merkaz and on any buildings or otherwise on the land
and by ,-"dvert isement in such local newspapers as he (the Oovernor) may
select." He submits that the ordinanoe in this respect is "directory"

and not "absolute", and that failure to. comply strictly "Iith the direction to

as to notioe does not invalidate the sale, and he points out that the

ordinance does no~ expressly say that a sale is invalid for such non-
oompliance. In this connection he refers me to Oraies on Statute Law.^l

1. At 240.- 41 (5th ed.).

Plaintiff in his reply stresses the apparent impossibility of building
on his 91 square metres in face of the action ta~en by the District Com-
missioner, and says tb.at 1-Ihile still negotie.ting with the adjoining

owner, Ar.ma bint Bilal, (second def'endarrt ) for the purchase of her plot

in order to bring the total ar-ea 0::1 P!!ialg8::.ation miio.imum, he heard that
both plots ha.cl been sold.

While I think that the learned District Judge ~ias right in saying
that the Government should have acted under regulation 22 of the Standard

. Local Government (Municipalities) Regulations, I :o-.gl'ea 1'1ith the learned
!id.vocate General tha.t the Government Has not asking the impossible when
it served notice to build under section 3 of the Disposal of Unoccupied
To;-m and Village Lands Ordinance.

I also agree ,·lith h i.m when he seys that notioe is not required by
section 5

(2) to be served on the owner , but Hith zreat respect I am
llilable to agree that the provisions of that section are merely directory
end not absolute, or that, if they are directory, notice was effectively
pu~lished. In deciding 'l'lhether a mand.at oz-y enactment shall be considered
directory only or cbligatory,.it is clear from Lord Campbell's dictum,l

to \ihich I am referred by the learned Advocate General, that "it is the

duty of Courts of justice to try to get at the real intention of the
legislature b,Y c;'.refully ette."lding to the \vhole soope of the statute to
be construed." Some sixteen years later this was affirmed and followed by Lord Penzance in 1877.

The preamble of the ordinan ce in quest ion shews clearly the reasons
underlying it e.nd the intention of the legislature in ~assing it fiito
law. This recites as follows: "whereas in many t owns and villages in
th'3 Sudan, lands, upon tihich buildings have been erected or \,hich are
vacarrt and suitable for building, are abandoned or left unoccupied by
the owner-s \,Iithcut any apparent in'~ention of being reoccupied by them,
and the same frequently become insa.nitary end a. public nuisance. And
whereas it is desirable that such lands should be utilised for building
purposes ir, the interest of the ~or=ununity and. llith a. vie"1 to abating- the

nuisance ca.used as aforesaid." While the taking of such powers is

doubtless fully justified and ..... necessary "in the interest of the Oommunity"
those pO\'lero are undo'L~bted1y sweeping, and the Government is surely under

a duty to sell at the best possible price in the interest of the owner,
who has a right under section 6 on proof of his title or interest to the
whole or part of the prooeeds of sale.

Section 5(2) prescribes the method of publication of notice of sale,
which it is clearly intended should be as wide as possible, and which
requires (~~) the posting of a copy of the notioe "on any building
or otherwise on the land it self." The mmer is thus gi van. every opportunity
of bidding for the land himself. The learned Advocate General in his
application s~s, as I have remarked above, that notioe of the intended

sale was given verbally by the Sheikh to all who might be interested,

such as neighbours. While I do not -doubt the accuracy of this statement,

I can find no evidence whatsoever as to this on the record. it is also
noted that the Government spokesman told the court that the District
Commissioner, acting for the Governor, issued the notice on April 13,

1944 and the sale took place on April 15. Even assuming that the
requirement.s of section· 5(2) are directory only, and that notice was

given verbally to neighbours two days or less before the sale, I do not
consider that this was adequate notice. In my view therefore section

5(2) ~ust be considered mandator.y, and , its provisions not having been
complied with, the sale was. rightly held to be illegal and so null and

void.

Application dismissed.

1. Liverpool Borough Bank v. Turner (1861) 30 L.J.Ch. 379, 381.
2. Howard v. Bodington, (1877) 2 P.D. 203, 211.

a duty to sell at the best possible price in the interest of the owner,
who has a right under section 6 on proof of his title or interest to the
whole or part of the prooeeds of sale.

Section 5(2) prescribes the method of publication of notice of sale,
which it is clearly intended should be as wide as possible, and which
requires (~~) the posting of a copy of the notioe "on any building
or otherwise on the land it self." The mmer is thus gi van. every opportunity
of bidding for the land himself. The learned Advocate General in his
application s~s, as I have remarked above, that notioe of the intended

sale was given verbally by the Sheikh to all who might be interested,

such as neighbours. While I do not -doubt the accuracy of this statement,

I can find no evidence whatsoever as to this on the record. it is also
noted that the Government spokesman told the court that the District
Commissioner, acting for the Governor, issued the notice on April 13,

1944 and the sale took place on April 15. Even assuming that the
requirement.s of section· 5(2) are directory only, and that notice was

given verbally to neighbours two days or less before the sale, I do not
consider that this was adequate notice. In my view therefore section

5(2) ~ust be considered mandator.y, and , its provisions not having been
complied with, the sale was. rightly held to be illegal and so null and

void.

Application dismissed.