Case No.:

HC-CS-63-1959 (Medani)

Court:

The High Court

Issue No.:

1962

Principles

·  Pre.emption_J.4 not covered by Pre-emption Ordinance Land of leasehold not covered by ‘Pre Ordinance Landlord and Tenant-pre-emptjon-Assjgnment of leasehold not covered by Pre- emption Ordinance

An assignment of leasehold is not a sale of immovable property within the meaning of Pre-emption Ordinance.1 s.

Judgment

(HIGH COURT)

TAMMAM HUDS v. AHMED MOHAMED ABDALLA AND ANOTHER

HC-CS-63-1959 (Medani)

A. A. Bitar J. January 28, 1959: —On consideration of the matter, I find that a decision on issues No. 3 and No. 4 only in this suit would dispose of it, and I do not find any necessity to decide all the other issues.

Issues No. 3 and No. 4 are as follows:

(z1 Is the plaintiff owner of adjoining plot within the meaning of the Pre-emption Ordinance as provided in section 5 (b) thereof?

(2) Was the transaction between the two defendants in respect of Plot 28, a sale of immovable property?

I have no hesitation to decide these two issues in the negative. The owner of the two adjacent plots is the Sudan Government. The plaintiff is merely a leaseholder of Plot 25 for a long time by virtue of a lease agreement between him and the Sudan Government, which is found in the Land Registry plot file put in evidence. The plaintiff can never be considered an owner of Plot 25. He is merely an owner of the leasehold interest therein.

Similarly, the first defendant was the owner of the leasehold interest in Plot 28 forming the subject matter of the suit, of which the Sudan Government is the owner. The first defendant did not sell the plot itself to the second defendant, but he merely assigned his leasehold interests therein to the second defendant with the consent of the Sudan Government according to the conditions of the lease. So there was no sale of immovable property from first defendant to the second defendant as provided in Pre-emption Ordinance, s.

I cannot give Pre-emption Ordinance, s. a wider interpretation to cover a sale of leasehold interests; I also cannot interpret the words “An adjoining owner of land” to include the owner of the leasehold interests. The words used in the Pre-emption Ordinance are very plain and I cannot give them any meaning other than their natural meaning.

The natural meaning of “owner of land” is the person who has owner ship of the land but not the ownership of leasehold interest therein.

Furthermore tile Pre-emption Ordinance provided for the sale of property. Property is defined therein to mean immovable property. The general and natural meaning of immovable property can never include the leasehold interest in the immovable property.

In giving this interpretation to the Pre-emption Ordinance I had to resort to the source in the light of which the Ordinance was enacted which is the Moslem law, which provides that there must be full ownership in the land pre-empted. I refer to Fyzee, Outlines of Mohammedan Law, s. 8 (A) (1) (i) at 289 (1949): “There must he full ownership in the land pre empted, and therefore the right to pre-empt does not arise on the sale of leasehold interest in the land.”

Furthermore, it is against public policy to interpret the Pre-emption Ordinance so as to include “the existence of the right of pre-emption upon the sale of leasehold interest in land.” The Sudan Government leases its lands according to a general policy and it is a condition in such leases that no assignment of the lease should take place except with the consent of the Government so that the Government would ensure that its policy was abided by. To give the right of pre-emption upon the assignment of such leases might defeat the policy of the Government, as it would deprive the Government of the right to consent to the person who would take the leasehold.

In the circumstances suit shall be dismissed.