Case No.:

PC-REV-56-1958(Ed Damer)

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Land Law—Statute of Frauds—Requirement of writing in land transactions—Not applicable in the Sudan

The provision of the English Statute of Frauds, rendering contracts for the sale of an interest in land unenforceable unless there is a written memorandum thereof signed by the party against whom enforcement of the contract is sought, is not law in the Sudan.

Judgment

                                                     (PROVINCE COURT)

        HEIRS OF HUSSEIN FARAH v. ABDEL RAHMAN GASMIL SEED

                                PC-REV-56-1958 (Ed Darner)

Osman El Tayeb p. October, 1958: —This is an application for revision from decree of District Judge, Ed Darner, dated April 6, 1958, granting plaintiff and respondent specific performance of an agreement of sale in respect of 4 uds in share No. i sagia No. 7 (1), Ahab East, Shendi District.

Applicants in their application contend that the sale was not proved.

The case is a very old one, started by petition dated August i 1948. It was once neglected by plaintiff for about two years, so dismissed under Civil Justice Ordinance, s. 217, and reopened.

The case seems to be a simple one of an application for order of specific performance of an agreement of sale. That the sale took place in 1944 and that steps were taken to effect registration. In the evidence of plaintiff it is alleged that the deceased seller appeared in time before the Sheikh El Khut, who had authority to consent to the sale, to put the matter into writing and obtain his consent. Plaintiff adds that they found him busy and he asked them to come back in another time. He adds that again they found him busy. Plaintiff is supported by one of the defendants, Medani. She was the agent of her father by a formal tawkil, and so seems to be the daughter who was obtaining the confidence of her father and knew all his affairs. . She stated that the sale took place and the price was paid and received and that her father and plaintiff went to Sheikh El Khut for the purpose of having the sale registered and they returned without that being done. On the second occasion, she states that her father gave his seal to her son Saved, in order to go to Sheikh El Khut to execute the sale deeds. The certificate of search, as admitted in evidence, showed that there was a petition of sale by defendant predeceSSOr4fltitte to plaintiff; the petition was entered in the daybook and that it concerned the same plot in dispute. It was No. 13—46. But it could not be traced in the office.

It is in evidence that the vendor died in i 946 most probably after the submission of the petition of sale to the Acting Registrar of Lands; and so the sale could not be registered. In 1948 as a result of a dispute between plaintiff and defendants, plaintiff started this suit.

Looking at these facts to find that the agreement was fair, bona fide made and the price was reasonable, and an order for specific performance can be granted.

I said that the case was complicated by plaintiff himself by making a claim of prescription in the alternative. The possession on which he was relying was said to have started some time before 1944 the year of the sale. A sale is a clear acknowledgment of the title of the vendor and so possession before it is nullified. The court below was not justified in investigating that possession.

The learned District Judge made a proposition of law, which must not pass without comment. He stated that the rules of English law that an agreement of sale of land must be evidenced in writing in order to be enforceable are applicable in the Sudan. The present agreement he found to be not evidenced in writing and so he applied the principle of part performance in order to make it enforceable.

He is obviously wrong. These rules of English law, which are statutory rules, are not applicable in the Sudan, and an agreement of sale of land need not be in writing in order to be enforceable in this country. The principle of part performance similarly should not be applied in the same sense. But when there is possession after an alleged sale, that possession may be considered as evidence to support the existence of the sale.

In a complicated judgment the District Judge came to the right conclusion of granting an order of specific performance of the agreement of sale of 1944.

Application for revision is summarily dismissed.