Case No.:

AC-REV-181-1956

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Land Settlement and Registration—Registration of land held by custom whereby cultivator pays headman one-tenth of crop

·  Custom—Registration of land held by custom whereby cultivator pays headman one-tenth of crop

Land held according to the ancient Arab custom whereby strangers to the proprietary tribe were allowed to cultivate for payment to the headman of one- tenth of the crop should be registered in the name of the cultivator as proprietor, and the right of the heirs of the headman to receive one-twentieth of the crops. an one-twentieth of the land value, if expropriated, should also be registered.

Land held according to the ancient Arab custom whereby strangers to the proprietary tribe were allowed to cultivate for payment to the headman of one- tenth of the crop should be registered in the name of the cultivator as proprietor, and the right of the heirs of the headman to receive one-twentieth of the crops. an one-twentieth of the land value, if expropriated, should also be registered.

Judgment

(COURT OF APPEAL)

MOHAMED AHMED HAMZA v. HEIRS OF MOHAMED AHMED HAMAD EL NIL

AC-REV-181-1956

Advocates: Ahmed Suleiman ……………. for the respondents

      Ahmed Kheir  ………………… for the applicant

B. Awadalla 1. January 11, 1958 :—This is an appeal against the decision of the Settlement Officer of the Danagla Lands Settlement. Wad Medani District, passed in Danagla Settlement Case No. 1 of 1956 and reversing the decision of the Registration Officer in so far as ownership of Plot No. 210 Danagla Registration Section is concerned.

Court: B. Awadalla .J.

The plot in question forms part of a big estate, over 2,000 feddans in extent and broken by the Settlement into about 28 plots, all registered by the Registration Officer in the names of persons 9f whom the applicant is one. The respondents are some of the heirs of the original overlord who died about 70 years ago and through whom the respondents claim to derive proprietary rights. On such a claim the decision of the Registration Officer was contested before the Settlement Officer who selected the plot iii question for a test case and ultimately came to the conclusion that the respondents are entitled to be entered in the Register as proprietors and ordered r of the Register compiled y the Registration Officer accordingly awarding at the same time cultivation rights to the appellant, so long as he paid the customary annual rent.

The applicant obtained the leave of the Chief Justice to appeal against the decision under Land Settlement and Registration Ordinance 1925. S. 19, and the Chief Justice referred this application to this court for a decision under subsection (3) of the section above referred to.

The learned counsel for the applicant submits that the learned Settlement Officer was wrong in law in finding that the relation of landlord and tenant existed between the applicant and respondents; because in the first place no specific amount was proved to have been payable by the applicant for his holding. and therefore the theory of a tenancy is inconceivable. Secondly because what was proved to have been receivable by the respondents was not rent but simply a “toll’S originally commanded and taxed by the overlord from the applicant’s predecessors-in-title and now given recognition to through sheer acquiescence and the march of time.

In answer to this the learned counsel for the respondents submits that although what was payable by the applicant was not a specific sum of money in the sense that is common in tenancy agreements yet it was a determinable quantity of the profits of the land arrived at by a simple process of calculation.

I am purposely refraining from restating here in full a contention by the learned counsel for the applicant that the non-framing of the issues by the Settlement Officer vitiates the whole proceedings because in my view this is a minor technicality which ought not to have been raised.

I take it from the line of attack pursued by the learned counsel for the applicant that “there is no disagreement as to the findings of facts of the Settlement Officer. According to these. the respondents are the third generation of the original overlord Mohamed Ahmed Hamad El Nil who seems to have been an administrative head during the Turkish Government and Mahdia. He held vast stretches of rain land in the locality which were given out to the inhabitants of neighbouring villages for cultivation receiving one-tenth of the c whenever there was sufficient rain making profitable cultivation possible.

There is no direct evidence as to whom in the ancestral line of applicant held the land in question directly from him. Mohamed Ahmed Hamad El Nil died in 1309 (1892) and it will not be unfair to assume that a striking feature of this manorial imposition was that both the right to collect and the liability to pay it enured for and ‘against both parties predecessors-in-title. In 1937 the amount payable by the applicant was by administrative order reduced to one-half or 5 per cent. of the crops.

It was mentioned in the evidence of the respondents before the Settlement Officer that ownership of the lands in question is evidenced by some wathigas of comparative antiquity. No attempt was made by the respondents to produce these wathigas to the Settlement Officer and no demand was made by the latter for their production. In my view both attitudes are understandable. For on the one hand proof of genuineness of these wathigas is now practically impossible and on the other, the purpose of a settlement is to protect and give effect to the rights as they exist at the time of the settlement.

I entirely agree with the learned counsel for the respondents that although rent generally consists of the payment of money, it may equally well assume any other form provided what is to be given in its stead is something specific and determinable.

Nonetheless, I think this case presents three features which make the conclusion impossible that the relationship of the parties was one of landlord and tenant.

In the first place there is the element of perpetuity in that relationship, or in other words, the lack of a specified limit of time for which this relationship can be assumed to have been made to endure. This is the essence of a tenancy agreement. Applicant and his father before him and before them their grandfather were on the land.

Secondly, the fact that the respondents’ predecessor had at his disposal so many lands, that it is beyond the means of an ordinary Sudanese either to acquire or make use of, save on the hypothesis that the relationship between him and the cultivators was a specific one quite independent of that of landlord and tenant.

And lastly and most important the fact that what was alleged to have been payable by way of rent is the subnormal figure of one-tenth which is more consonant with the fact that the collection of that rate was rather an incident of a consideration for, the tenancy.

 I think it is high time that the courts should take judicial notice of the fact that from time immemorial there existed amongst the Arab tribes of this country a custom which gives the headman of the tribe the right to distribute the rainlands in his domain amongst the people of his tribe but that when a stranger to the tribe asked for some land, he was only allowed to cultivate on the conditions that he would pay one-tenth of the crop to

the headman. The figure of one-tenth may have had its origin In Sharia law and was exactly what was payable to the Beit el Mal by way of Zakat el Huboob. Some of the tribes even sanctioned the payment of that figure by their own members to the Nazir. Through non-intervention by the various regimes of government, this practice took the form of custom where the headman was influential or had a religious standing. It would therefore seem that it would be fair to both parties to assume that the facts as proved are more consonant with such custom. This is the only way through which both rights can be recognised and the appellants will be allowed to cultivate as owners and to be entered in the Register as proprietors. The respondents, on the other hand, will continue to receive their share of the crop on the strength of the custom and will be entered on the Register as the owners of a right to receive one-twentieth of such crop as heretofore from the proprietor and his successors in title subject to this that if the land is expropriated they will be entitled to one-twentieth of the value.

This appeal is therefore allowed and me decree of the Settlement Officer set aside. The decision of the Registration Officer is restored and a note of the respondents’ customary right as herein found is hereby ordered to be entered in the Register.

No order as to costs