Case No.: AC-REV-2-1956 Court: Court of Appeal Issue No.: 1961 Principles · Criminal Procedure—Civil Justice Ordinance, s. 201 (2)—Governor must exercise powers within limits prescribed by purpose of statute A Province Governor may exercise his power under Civil Justice Ordinance,S. 201 (2), to refuse approval of an execution sale of land belonging to a Sudanese only within limits prescribed by the purposes of the statute, two of which are: (1) to prevent agricultural land from falling into .the hands of foreigners or undesirable persons; (2) where the land in question is the only means of support of the owner’s family. Judgment (COURT OF APPEAL) * MOHAMED OSMAN KHALIL v. ABBAS AHMED EL SADIK AND ANOTHER AC-REV-2-1956 Advocate: Abdella Abdel Hadi …… for the applicant M. A. Abu Rannat C.J. May 28, 1956 :—This is an application for. revision against the decision of the judge of the High Court, Khartoum, dated November 15,1955 refusing to allow sale of land belonging to judgment –debtors, on the ground that the Governor of Khartoum refused to give approval of the sale under Civil Justice Ordinance, 5. 201 (2). The material facts are these: *Court: M. A. Abu Rannat C.J. and M. I. El Nur On November 21, 1954, an execution was allowed against two judgment debtors (respondents) for the recovery of £E.555.775 plus execution fees. Usual execution proceedings were taken and no movable property, attachable or saleable, were found in possession of the judgment-debtors. So the immovable property of the first judgment-debtor was attached. His share comprises 100 square metres undivided shares in Hosh No. 3/3/784 in Omdurman Town. On March 19, 1955, the Governor of Khartoum gave his approval to the sale of the land. In consequence of this approval, notice of sale was issued on March 24, 1955 On April 14, 1955, the Governor wrote to the judge of the High Court, Khartoum, as follows: On the recommendation of the town clerk and on reconsideration of the matter, I recommend that this house is not to be sold.” The sale was fixed for April 27, 1955. On April 17, 1955, and before this sale, both parties appeared before the judge of the High Court. First judgment-debtor made an offer for settlement by instalments, but the decree-holder refused the offer. The learned judge ordered that the parties should see him on April 24, 1955. On April 24, ‘1955, the parties saw him and judgment-debtors offered £E.150 in full settlement of execution debt. Decree-holder did not accept this offer also. The judge made a note that before the sale is approved by District Judge, Omdurman, he would like to see how much the debtor’s shares would fetch. On May 7, 1955, the District Judge, Omdurman, informed the judge of the High Court, Khartoum, that the highest bid for first judgment- debtor’s share was £E.300 and that he collected from the highest bidder 20 per cent, of the price. On May 19,1955 the decree-holder produced a fresh Land Registry Certificate showing that the whole plot is registered as follows: “First judgment-debtor as to150 square metres; second judgment- debtor as to 51 square metres.” This was the result of elimination of certain shares belonging to co-heirs whose names are shown on the certificate. In the light of this certificate the judge of the High Court ordered that the whole plot be put up for sale. On June 13,1955 the sale which was made by the District Judge, Omdurman, was not approved by the judge of the High Court and the 20 per cent. of the purchase-price paid by the purchaser was refunded to him. On July 3, 1955, the Commissioner, Khartoum Province, did not approve of the sale of the land. The learned judge of the High Court kept the papers before him for a fairly long time and on November 15 1955 he wrote that he did not find a similar precedent and decided that he was bound by the Governor’s decision. The main point in issue is whether the Governor by withholding his approval to the sale of the debtor’s share in land has exercised the discretion given to him by law correctly. The object of Civil Justice Ordinance, S. 20! (2), is to enable the governor to prevent agricultural land from falling into the hands of foreigners or administrively undesirable persons. It is also true that the Governor could properly exercise his discretion and refuse his consent to the sale where the land was the sole means of support available to the judgment-debtor and his family. It was never intended that the section should serve to protect a judgment.. debtor in circumstances such as these. This is the view given a long time ago by a former Chief Justice, The Honourable chief Justice Howell- Owen. The same view was also shared by an eminent judge—His Honour Judge Charles Halford. Civil Justice Ordinance, S. 20! (2), confers a discretion on the Governor of a Province, to refuse approval of sale of land belonging to a native of the Sudan. Where, as in a multitude of Ordinances, something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised in the spirit of the statute. It must be according to the rules of reason and justice, not private opinion; according to law and not humour; it is to be, not arbitrary, vague and fanciful, but legal and regular. It must be exercised not capriciously, but on judicial grounds and for substantial reasons. In this case the judgment-debtor is a broker. The Governor withheld his approval on the ground that the judgment-debtor with about 13 members of his family, were living in this house, and that if this house is sold, they would find no other house to live in. The decree-holder’s advocate contends that the judgment-debtor could hire a house so far as he failed to pay his debt. He further contends that if the ordinary execution proceedings in such a case is departed from, it would defeat the ends of justice. It amounts to this: “The decree-holder will be left without any relief for the recovery of his debt.” I entirely agree with the decree-holder’s advocate. I refer to the rules of construction to be put against impairing obligations, or permitting advantage from one’s own wrong. I refer to Maxwell, Interpretation of Statutes 208—209 (1oth ed., 1953 which states: “On the general principle of avoiding injustice and absurdity, any construction would, if possible, be rejected (unless the policy and object of the Ordinance required it) which enabled a person to defeat or impair the obligation of his contract by his own act, or otherwise to profit by his own wrong. ‘A man may not take advantage of his own wrong; he may not plead. in his own interest, a self-created necessity.’” In Maxwell, Interpretation of Statutes 286 (1oth ed.,1953), it is said: “It is a proper rule of construction not to construe an Act of Parliament as interfering with or injuring persons’ rights without compensations unless one is obliged so to construe it.” Surely the refusal to give approval interferes with the decree-holder’s rights and it is also clear that the judgment-debtor is taking advantage of his own wrong when he asks the administrative authority to protect him from the payment of his just debts. I therefore think that the discretion conferred on the Governor was not properly exercised as is intended by the legislature, .M. I. El Nur j. May 28, 1956:—I concur.