Cont~act-Mutual cancellation-Whether transaction an exchange or two di-
visible sales of land

Contract-Unconscionable bargain-s-Sale of land transaction held unconscion-
able where seller had influence over buyer and land almost worthless

The plaintiff, a girl of about 17 years, and the defendant, who was
the plaintiff's uncle and former guardian, held undivided shares in different
plots of land. They agreed to an arrangement whereby, the plaintiff should
acquire the defendant's interests for the sum of £E12.300 m/ms and the
defendant should acquire the plaintiff's interests for a sum of . £ E.17 . The
defendant paid the difference to the plaintiff. Unknown to the plaintiff, the
land she received was almost valueless because it was subject to a Per-
petual tenancy. She sued for cancellation of that part of the arrangement
under which she had received the encumbered land. .

Held: (i) The transaction was harsh and unconscionable on the part
of the defendant, who obtained valuable land and gave almost valueless
reversionary rights. Plaintiff, though of age, had been under defendant's
guardianship and influence for years. Also, she was persuaded by the Om-
dah of Khartoum North. The defendant must therefore pay the plaintiff
£E.12.300 m/ms, and the registration must be restored to what it was
before the transaction.

(ll) The defendant was not entitled to the cancellation of the other
part of the arrangement in which he received valuable land. There was
not an exchange of land, but two divisible sales. Even if the transaction

* Court: Hamilton-Grierson, J.

were an exchange, the court, acting according to justice, equity and good
conscience would refuse to apply any English rules entitling the defendant
to mutual cancellation.

Action

August 16, 1926. Hamilton-Grierson, J.: This case represents
an episode in a long drawn out dispute and discloses a form of land
ownership of, in my experience; a novel and extraordinary kind. It is
in vogue in Hillet Hamad, Khartoum North .• It appears that at the
occupation of this country, this area was occupied by the Marioumab
tribe. It was thought that its value would appreciate in the near fu-
ture, and, in view of this, the Marioumab Sheikhs in some cases per-
mitted outside persons to build in this area on payment of ground rent;
at the same time refusing to sell or alienate their assumed ownership
of the land. The land in question in this case (plot 'no, 28) is subject
to an obligation of this kind, and there is a man called Hassan Da-
wood who has it by hikr of 20 piastres a year, and there is evidence
that, provided that ground rent is paid, neither he,' nor his heirs nor
assignees can ever be turned off.

At one time there were 3 plots belonging to one family, and all
three were registered to the various members of the family in undivided
shares. The plaintiff, a girl now about 18, and her uncle, the de-
fendant, who was her guardian till she came to womanhood, were
members of the family. When she was 16, she decided she wanted
her share divided off, and accordingly a partition suit was raised, which
was heard by the District Judge, Khartoum North. The 3 plots to be
divided were Nos. 28, 29 and 30.

No. 28 was registered as follows (measuring 886 sq. metres):

                 Hassan Hamad EI Shafie                 lhth (Defendant in the present

                 Taher Ahmed                                       lhth case)

                 EI Sadeg Ahmed                                 lhth

                 ~rikhtar Ahmed                                   lh th

                 'EI Tom Hamad                                   lhth (Father of plaintiff in the

present case-dead)

Plot No. 29 was registered (measuring 308 sq. metres):

                 Hassan Hamad EI Shafie         . .. Y2 '

                 Heirs of EI Tom Hamad            ... Y2

Plot No. 30 was registered (measuring 194 sq. metres):

                 Hassan Hamad EI Shafiie                 Y2

Heirs of EI Tom Hamad

In other words, plaintiff and defendant each had undivided shares in
all three plots.

A judgement was issued by the District Judge, which amongst
other things, decided that plot 28 should be sold and the proceeds
distributed. It was offered for sale but there were no bidders. After
that various attempts were made to arrange that plaintiff should get
her shares in one plot, and finally, under mediation of the Omdah of
Khartoum North, it was arranged that plaintiff should take defendant's
share in plot '28 as well as his share as heir of EI Tom Hamad in
Plot 28, and that defendant should take her share in plot 29 with the
buildings on it. He was to take them at a valuation of £E.17. As
he could not produce the cash, it was arranged that the land she took
from him in plot 28 should be assessed for the purpose at £E.12.300
m/ms and he should pay the balance of £E.4.700· m/ms in cash,
which he did. Plaintiff agreed to this at the time.

Subsequently, she discovered that plot 28 is under the obligation
to Hassan Dawood that he can live there as perpetual tenant, and his
heirs or assignees. She accordingly brought a civil' suit in the High
Court for eviction of Hassan Dawood. Judge Owen heard the case and
came to the conclusion that it was a misconceived claim, and that she
should bring an action to set aside the transaction between herself and
Hassan Hamad EI Shafie-s-present defendant-which he described as
"this amazing agreement of sale." He also said, "This state of affairs
points clearly to something very nearly approaching fraud,' This

          transaction is the subject matter of the present action.                        

Her ground of action is that the transaction was harsh and un-
conscionable, and therefore she should get her £E.12.300 m/ms back
and give back the land. As to its being harsh and, unconscionable I
have no hesitation in holding that it was. She got 246 sq. metres of
bare ground for £E.12.300 m/ms, which was subject to the tenancy
of Hassan Dawood. The latter's, rent was 20 piastres a year for the
whole of plot 28 of 886 sq. meters, i.e. her share of such rent was %1
of 20 piastres, i.e., about 5~ P.T. a year, which: capitalised at 20
years purchase, is about 110 P. T. I cannot see that the land she got
is in fact worth anything more to her than this rent of 5~ P.T. a year.
Nobody will buy it so long as it is subject to this tenancy. Accordingly

. she paid £E.12.300 m/ms for what was in fact w.orth about £E.1.110
m/ms, in my opinion. Even taking the District Commissioner's valua-
tion of the whole plot at £E.15, she should not have paid more than
£E.4.50 for the 246 sq. metres. So that, on my view of the trans-

action, I think it is clear she was 'planted' with this almost valueless
bit of ground.

It is objected by the defence that she agreed to the transaction,
and was of age when she did so, and had an aunt to assist her, and
therefore she cannot now try to upset it. To my mind this objection
is not of much weight. In the first place, she states she did not know
anything about this tenancy of Hassan Dawood. Further, although
strictly speaking of age, she was only about 17, a girl, and who had
been under the guardianship and influence of the defendant for years.
She was also asked by the Omdah to agree, and one knows how dif-
ficult it would be for such a girl to refuse to agree to what the old men
told her to do. Accordingly, I hold she is not barred for that reason
from seeking to upset this arrangement.

It was further objected by the defence that, in any case, if she
is allowed to upset her side of the arrangement, the defendant must be
allowed to upset his side of it. That is to say that, if one part of the
agreement goes; the other must go too. It is really an argument that,
this being really an exchange, you cannot cancel one side without
cancelling the other. In my opinion, it was not exchange, but two
divisible sales. For it to have been an exchange, there should have
been an identity of quantity of the interests exchanged, e.g., fee
simple for fee simple-not e.g., fee simple for life rent. In this case
there was no such identity of interest. He got a bit of land over
which he could exercise full proprietary rights-not subject to a similar
form of perpetual tenancy. She got a bit of land subject to a most
oppressive restriction of full proprietary rights. So that, even on a
strict application of law, I should hold it was not an exchange. But
even if I were wrong in that and it was an exchange, I should not be
prepared to hold myself bound to .apply those strict rules of English
Law, in the circumstances of the present case, and would apply what
I consider to be in accordance with justice, equity and good con-
science. In fact, if it were necessary, I should probably be prepared
to go the length of holding that she was fraudulently induced to enter
this agreement.

Accordingly, I hold this was not an exchange, and that, in the
event of holding that the plaintiff is not bound by her side of the agree-
ment to take the land at £E.12.300 m/rns, I am not bound to hold
that the defendant must necessarily be held loosed from his side of the
agreement to take the land at £E.-17.