.(ii) hen if such a custom existed, becauae it. coDflicted "i~h the
terms of the Prescription and Lillli tati on Ordinance, 1928, it
could receive no lelal recoanition.

On revision 1-0 tbe Hi&h Court·, t.he case was remanded for retrial

and it wu heldI

(i)

There was error in the proce_edin,s in the District

Court in that (a)

no parties appeared as plaintiffs

ana 1defendants,

(b) no evidence waa received on

either aide - plaintiffs must prove the facta they
alleled even thou&h party admit.ted ex-advers., defendants
must prove the alleged custom which is not au issue of
fact but of law, and

(c) the merkaz should have been
ordered to put plaintiffs back on the Laud and the
defendant advised to petition the court for their
eviction.

(ii) Otherwise, on the unproved facts stated by the Distric~
Judie, the result was proper.

On retrial in the District Court in was ~ I Plaintiffs'
preacripti ve claim succeeded. 'the ·custom invoked by defendants
di d not exi st.

Civil Justice Ordinance, 1929

Prescription and Limitation Ordinance, 1928.

ActionI

The judam~nt in the District Court ia followed by the High Court
revi.ion, which followed by the jud~ent on retrial in the District Court.
The fac~s sufficiently appear from the judaments.

June 18, 1944, Merowe District JudgeI The issues pres.nted by this case

are as foUQw8 I                 

(1) Were the plainti fra in actual or conatructi ve

poss.s.ion of \he strip of land claimed for more than 10 years ?

(2) Are they e~~itled to it by prescription?

(3) Even if there is
an exi atin, l,ocal custom to the contrary, has ita le,al r.cepti on in 80
for as it does not conform to the ena.cted law

The defendants ",.dmit that plaintiffs tlere in actual possession of
the .strip of land claimed and therefore they are entitled to it by
prescription. The defence on Hhich the defendants rely is a question
of la,v as to whether the Court \'Iill accept in their favour the prestige
and authority of their custom that the claims in respect of "lrong
bounduties "Ihich are based on prescription are null and void. In other
'-Jords, they "dsh to sey that when the statute law and custom are in
c0l1f'li6-t·· '~he custom should prevail.

I found that their plea is not based on any sound grounds. So far
as lI\Y knowf edge goes such a custom is not known throughout·: the whole
Northern Province. Moreover, this custom directly oonflicts .lith the
Prescription and Limitation Ordinance 1928, and therefore it should not .
receive any legal recognition in the courts of justice. In order that

a local custom m~y be valid and operative it must conform to certain
requirements laid down by law such as reasonableness, conformity ,-lith
the statute la\v, etc.

I therefore give judgment in favour of plaintiff and order that the
maps be rectified accordingly.

Decree accordingly.

Revision.

~,:v.~.b.e.r.·.l~,:·'J.H'14, .HalforJ'iJ~ ~: .• Prom the very meagr-e record, I

undez-s t ond the,t Laat year the defendant t the Omda of Harndab East complained
to the me rkaz that as the result of a survey the plaintiffs, who he
admitted had been in cccupat Lon by themselves and their ancestors for

many years past, \-Iere cult i vat ing some 1/5 of a feddan of selluka "Ihich
rightly belonged to him and his eo-osners , "Ihereupon they were evicted

by the markaz , I have no doubt whatsoever that if the ccmplainant had

not been a person of the standing of an Omda, no action would have been
taken by the merkaz on his complaint. It appears that the land in dispute
is situated on the boundary between the selukas registered to the parties
and that the nal'latir (boundary marks) had been washed awey in the flood.

Sbme of the evicted plaintiffs petitioned the District Judge who
allowed them action to establish-their title by prescription and finally
without taking evidence he gave judgment in their favour against which
the Omda has applied for revision on the ground that he proceeded
according to custom.

I agree ~1ith the judgment of the District Judge if the unproved
facts are as stated by him. However, I shall allo\</ the application'
because he has not complied with the requirements of the Civil Justice
Ordinance 1~29, and on the ground that: 1. No parties appeared as
plaintiffs and defendants. 2. No evidence was received on either side,
i.e., by plaintiffs to prove the facts they alleged even though partly
admitted ex-adverso or by defendants to prove the alleged custom which
is not as the District Judge says an issue of law but one of fact. 3.
No protest was made by the District-Judge against the high-handed action
of the merkaz in evicting plaintiffs.' He is there inter alia for the
express purpose of protecting the ~ (people) against these abuses.

He should have ordered the merkaz to put the plaintiffs back on the

land and advised the Omda to petition the court for their eviction.

I therefore order that on payment by the defendant of balance of
fees on revision copy of the Omda's application for revision is to be
served by the District Judge on plaintiffs who must show cause in writing
to me through him vlithin 15 days why I should not order a retrial.

Application alloVied.

Judgment on Retrial.

December 5, 1944, in Merol'Je District Judge ;

It is now clear that the plaintiffs .·:ere in possession of the strip
. of land they are claiming for u proscriptive period.

The trouble viaS caused through a misdonception of the true boundaries
of the plots. The pcs s e s s Lon of the plaintiffs does not cor-r-espond vlith
the maps, and such event is commonly existing for the very reason that

the lands in this district were not properly demarcated and settled.

I admit that the Omda has caused some complications in the trial by

givi!1g conflicting statements and b:r i!lvoking a question of a custom

uh i.ch does not exist.

The pl:3.int iffs i"ere kind enough in that they did not apply for
damages, but of course they <':.re entitled to their full costs - ,·uich
the defendant pa i.d in court LE.l.240.

I therefore &i ve jnctO'1ent in f'nvour of plaint iffs.

Decree accordingly.