Case No.:

AC-REV-2 1957

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Land Law—Prescription—Period interrupted by disappearance of gezira land

·  Land law—Prescription and Limitatian Ordinance, s. 4 (1)—Applies to land constantly possessible though irregularly watered

Plaintiffs possessed certain gezira land from 1906 to 1935 when it disappeared and again from 1946 until 1951. They claimed title against the defendants by adverse possession.
Held: The disappearance of gezira land under water interrupts the period of adverse possession, because physical possession of it is impossible while the land is under water.

Obiter dictum: Prescription and Limitation Ordinance, s. 4 (1), providing that possession of land at two periods creates a rebuttable presumption of continuous possession between these periods was intended to apply to cases of land permanently in existence though infrequently cultivatable due to irregular rain or flood; the presumption is created because physical possession is permanently possible even without cultivation.

Judgment

)COURT OF APPEAL( *

MOHAMED ABDALLA BIREIR AND ANOTHER v. HEIRS OF

SALIM IBRAHIM

AC-REV-2 1957

M. I. El Nur J. December 11, 1957:—This is an application for the revision of the judgment on revision passed by the Province Judge, Northern

Circuit (NP-REV-69-57) whereby he reversed the decreo issued in CS- 191-1956 by District Judge Shendi on May 20, 1957.

The facts of the case are briefly as follows. The 5 uds known as share 7 in Sagia 5 El Haddadeya island, were registered upon settlement in 1906 in the name of defendants’ (respondents’) ancestor.

Plaintiffs (applicants) instituted Shendi CS-191-1956 claiming that they had acquired title to those uds by prescription having been in possession thereof since 1906 until 1953 when defendants’ heirs claimed them and they entered into possession by order of District Commissioner Shendi pending determination of the dispute (see petition on appeal to Appeal Court).

It was proved on evidence before District Judge Shendi that plaintiffs had been in possession of these 5 uds until 1935 when the land disappeared under water. When the land reappeared in 1946, plaintiffs resumed possession which they continue until 1951 when defendants’ heirs started to dispute their claim and entered into possession as stated above.

On the above evidence the district judge passed his decree on May 20, 1957. declaring that plaintiffs acquired title to the 5 uds in dispute by prescription and ordered rectification of the register in their favour accordingly.

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

On May 20, 1957, the defendants’ heirs (respondents) applied to the province Judge. Northern cirouit For revision of the district judge’s decree dated May 20, 1957.

On September 25. 195 . the learned Province .Judge in an exceptionally well-thought judgment said that it having been proved that plaintiffs had possessed the land since settlement in 1906 till it disappeared in 1935 and resumed possession in 1946 (after the land had partly reappeared) till 1951 when the dispute between them and defendants started, the main issue for him to answer was whether disappearance of the land in dispute under water amounted to an to  Interruption to their former possession, and if this was so whether the possession of plaintiffs since 1916 would e tie their, to acquire prescriptive title to the land.

The learned province judge alter a forceful argument came to the conclusion that the disappearance of the land in dispute for more than ten years did amount to an interruption of plaintiffs possession. Therefore he decided that plaintiffs possession since 1964 until the date of suing which was started by their petition of April 10. 1955. was not for the sufficient prescriptive period.

The learned Province Judge consequently reversed the District Judge’s decree of May 20, 1957.

On September 28, 1957. plaintiffs (applicants) applied to the Court of Appeal for revision of the decree of the learned province Judge but as they did not attach to their application the copy of the decree appealed against they were asked by the Registrar of the Court of Appeal to do so.

On Octobcr19, 1957, one of the applicants for himself on behalf of the others sent the copy- of the decree together with a memorandum of Appeal. In this memorandum the applicants, inter alia, said as follows:

“We had been in possession of this land since a very lot time. Nobody disputed our title because everybody new it was our own. In 1951 a dispute started by defendants and claimed the ownership of this land. The case about this dispute was put forward but the incidents of the southern Sudan prevented a decision being given on the matter. But District Commissioner Shendi delivered the land in dispute to defendants on account of the registration in their names on the terms we cultivated with them in it on the terms that the crop should be valued. We continued at that arrangement for about four years. After that we paid the fees for initiation of this suit.”

From the above it is clear that defendants entered into possession, even jointly with plaintiffs since1951. This is an important point because it shows that the peaceable public and uninterrupted possession of plaintiffs after the reappearance of the land was only for six years.

As regards their possession prior to the disappearance of the land in

J935. I find that I am in full agreement with the learned Province Jud that the disappearance of the said land under the water from the pen of eleven years was a complete interruption to their former possession.

Prescription and Limitation Ordinance 1928.s,4 (1). provides:

"Where it is shown that a person has been in possession of land or in receipt of the rents or profits thereof, at each of two period shall he presumed that he has been in continuous possession of land or in continuous receipt of the rents or profits between the periods until the contrary be shown.”

This subsection creates a rebuttable presumption in favour of continuation of possession, between two periods. But in my view it can apply to a ca where the land as in this ease had disappeared for a complete period of eleven years.

The requisites of possession are the corpus domini and the animus domini, that is to say the physical relation between the thing posse and the intention to exclude others from it.

In the case of submerging land which may or may not reappear, or at least it is not certain after how long, if ever, it would reappear, one hardly say that the former possessor who had already lost the physical relation between him and that land, the corpus of which had not b in existence for eleven complete years, had had any intention to exclude others from it during that period.

Therefore the presumption under section 4 (1) referred to above is tot rebutted by the complete absence of possession in all its forms for a complete period of eleven years.

This subsection however applies, and was intended by the legislator to apply. in cases of lands which are infrequently watered either by I or flood and cannot possibly be cultivated except in intervals of three or four years when they are so watered. In such case if person is pro to have been in possession of such a piece of land at the time of I watering and second watering after three or four years and a third watering after another three or four years his possession will then be presumed have been continuous.

The significant distinction between the two cases is that the land in case of a Gazira (Island) which had disappeared as a result of Haddam or wash out by flood process. remained non-existent for the whole period of its disappearance.

If and when it reappears, it means a new clay has formed in its place as a result of Haddam from some other land

In the latter case the land is already there. Physical possession a was quite possible even without being cultivated which is only taker

evidence of the continuing of possession. Between two periods of cultivation the possessor would be presumed to have the intention of excluding anyone who wanted to interfere with it.

For above reasons I am in full agreement with the learned Province judge. Northern Circuit,. that the disappearance of the land in dispute was a complete to plaintiffs’ possession which preceded the disappearance of the land in 1935.

The possession of plaintiffs from 1946 until 1951 when this dispute started, or even till 1955 when plaintiffs put their case before the District Judge was not sufficient: it is less than the prescribed ten years necessary or the maturity of a prescriptive right.

Therefore. in my view, this application is hopeless and if the Honourable Chief Justice agrees it should he summarily dismissed.

M. A. Abu Rannat C.J. December 11. 1957 :- Application for revision summarily dismissed.