(COURT OF APPEAL) *

                      ADAM MOHAMED IBRAHIM vs. ABBAKER AHMED KAGIR

AC-Revision-93-59

Revision

Principles

  Land law—Unregistered land—Effect of native custom

      Where the possession of unregistered land is claimed and the claim is disputed. substantially on the ground that there is a local or tribal custom by which possessors of such land must fulfil certain conditions (e.g., here, that of residence within a particular Omodeya), and that the claimant does not satisfy such conditions, the trial judge should hear evidence as to such custom and not decide the case exclusively on grounds derived from the general law. If he is satisfied that such custom is proved, and has the effect contended for, he should make such order as is most consistent with the custom; subject, however, to the presumption that ownership of unregistered land belongs to the Government.                                                                                                                                                                                         
     Case returned to Province Judge, with leave to review his decision by hearing evidence of native custom as to possession of these large tracts of land.

Judgment

The facts appear from the judgment of M. I. El Nur J.

Advocate: Ahmed Fadl ……………………for applicant

       9th June 1959. M. I. El Nur J.: —The gist of this case, which has been incorrectly dealt with and was never properly understood by either the parties or the Courts, is briefly as follows: —The ancestors of Mohamed Ibrahim (plaintiff and respondent) used to cultivate a very large tract of land. In the life of his own (plaintiff’s) father the boundaries of the variousOmodeyas of Fasher District were set up. This took place about fifteen years ago (see P.W. 3: Omda Hassan Suleiman). Consequent on that demarcation, the land of plaintiff s ancestors fell partly within the Omodeya of P.W. 3 and partly within the boundary of Omda Abbaker Ahmed (defendant). The part which fell within the Omodeya of defendant was about 1,500Mukhammas (see the sketch enclosed with the proceedings). Since that date defendant has prevented plaintiff or his father before him from cultivating that land as they did not reside within his Omodeya, and started either to cultivate it himself or to give it to others on lease.

   Plaintiff instituted Fasher DC/CS/74/57 claiming recovery of possession of those 1,500 Mukhammas on the grounds that he and his ancestors had prior rights of occupation over it.                                                                                                             

* Court: M. A. Abu Rannat C.J., M. I. El Nur J.                                                          

Defendant did not claim ownership of that land, indeed he cannot possibly do so since the land is unregistered and is presumed to be Government property, but said that since the setting up of the boundaries of the various Omodeyas (for which he gives fantastic dates) he prevented plaintiff and his father before him from cultivating it unless they came and settled in his Omodeya. He added that plaintiff had made the same claim before the District Commissioner and sued him in the Native Court and both the District Commissioner and Native Court rejected his right to the said land. Defendant added that he still does not claim any title or right to that land and would not object to plaintiff having it back if he elects to come and reside within his Omodeya and pays him Government dues on the land.                                     

    On this reply by defendant it appears he is preventing plaintiff from occupation of this land on a local or tribal custom which provides that the unregistered land within any Omodeya can only be occupied by people residing within that Omodeya. If this were the local or tribal custom, on which defendant relied, it ought to have been investigated by the Court. But to my surprise both the District Court as well as the Province Court dealt with this case on quite different bases of prescription, res judicata and the like. The President of the Native Court said in his letter of 10th February 1956 that defendant had been in occupation of the land in dispute for over fifty years and so they had adjudged that he should continue to do so. Defendant himself did not claim the land on these grounds.                                                     

     I am afraid that confusion has prevailed throughout this case and I am not sure whether adjourning this application to the Court of Appeal and bringing the parties from Fasher would solve the problem. We certainly cannot dispose of the dispute unless both parties are before us and have explained their claims. But an easier way, which is not a usual one, is to return these proceedings to the Province Judge and ask him to hear the dispute between the parties afresh and give his judgment on it.

     M. A. Abu Rannat C.J. —I agree that the case be sent back to the Province Judge with leave to review his decision by hearing evidence on native custom as to possession of these large tracts of land. If the custom supports possession by the respondent to the exclusion of applicant, then the Province Judge may declare that the land is Government property, but the Respondent is entitled to possess it as trustee and distribute it amongst villagers.                                                                             

                                                              (Case returned to Province Judge)