Case No.:

AC-REV-5- 1950

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Civil Procedure—Civil Justice Ordinance, S. 174 (I)—’ Aggrieved” party—Right to apply for revision of prescription decree by non.party beneficiary of trust for grazing in land awarded

·  Civil Procedure-—Notice—All beneficiaries of trust for grazing right must be notified of hearing before prescription decree

Certain lands in Gereif West were registered as Government land with grazing and cultivation rights held by named trustees for the people of the Sheikhship of Gereif West. Respondent in 1954 claimed ownership of part of the land by prescription. The land was awarded to him in proceedings where the trustees appeared. No notice was given to the people of Gereif West, beneficiaries of the trust with grazing rights; none of them appeared. Six months after the award, applicant, a resident of Gereif  West. applied to the High Court against respondents decree on grounds that he had had no notice. Two questions arose:
(i) Was applicant an “aggrieved” party within the meaning of Civil Justice Ordinance. S. 174 (1), therefore having the right to apply for revision of the decree?
(ii) Was the decree of the District Judge void because no notice was given to applicant and others similarly situated?
Held : (i) Because the decree ends applicant’s right as a beneficiary of the trust to graze his cattle on the piece of land in question, he was deprived of a right by the decree below, and is an “aggrieved” party with right to apply for revision.

(ii) Because the decree below was rendered without giving applicant notice, if not personally at least by public notice of the claim and date of hearing, the decree is void, and the case is remitted to be reheard after the joining as parties all beneficiaries of the trust with rights to graze who apply after due notice given.

Judgment

(COURT OF APPEAL)*

ABUL GASIM ABDEL RAHIM v. HEIRS OF HASSAN EL HAG IBRAHIM

AC-REV-5- 1950

Court: M. A. Abu Rannat C.J. and B. Awodalla I.

Advocates: Ahmed Soleiman ……. for the applicant

      Yousif Mohamed Ali …….for the Attorney-General

Mohamed Ibrahim Khalil and Dafalla El I-lag Yousif

f or the respondent

B. Awadalla J. October 1, 1960 is an application against the dismissal by the Honourable the Judge of the High Court against the decree of the District Judge, Khartoum. in CS-2749-1954.

Briefly stated, the facts leading to these proceedings are as follows:

On October 29, :1929. Plot 10, Gereif West, measuring 130.383 feddans in area, was registered by the decision of the Settlement 3fficer as Government land with a remark entered on the register as follows:

of this area, 3 are subject to grazing and cultivation rights to Sheikhship of •Gereif West and the following are constituted trustees:

1. Abu Abu Zeid,

. 2El Tuhami Abdel Rahim, and

. 3El Zuein El Hussein

in addition El Sheikh of El Gereif West as ex officio trustee.”

The terms of the trust were stated in the settlement proceedings, a copy of which is before the court, to be the same as those for rainland Plot 1.

A perusal of the plot file of rainland Plot i. shows that the terms of the trust are as follows:

1. The rights of cultivating and grazing over the Government land registered under Plot No. i are vested in a board of trustees who hold those rights in trust for the people of the Sheikhship of Gereif West, hereinafter referred to as the beneficiaries.

.2 The first trustees are:

1. Sheikh of Gereif West

. 3Au Abu Zeid

.3 El Tohami Abdel Rahim

4. El Zein El Hussein.

. 3The board of trustees will consist of not less than two members of whom one shall be the Sheikh and the remainder chosen by the beneficiaries under arrangements to be made by the Governor or his duly appointed representative.

. 4The removal, replacement. and additions of members to the board shall be at the discretion of the Governor or his representative.

5. The President of the board shall be either the Sheikh or. Only  .  with  the permission of the Gov or his representative. shall be elected by the board from among its own members.

. 6No board nor change in a board will be complete until it is inscribed in the records of the Land Registry.

. 7It shall be the duty of the board to act for and represent the beneficiaries in all matters touching the rights aforesaid. They shall control the exercise and enjoyment of those entitled and shall where necessary make annual allotments of portions of the plot for that purpose according to custom, and shall prepare and maintain lists of such allotments. They shall decide all disputes arising out of the exercise and enjoyment of the rights. They will be responsible for seeing that the rights and benefits arising therefrom are enjoyed exclusively by the beneficiaries, the people of the Sheikhship of Gereif West in common. No alienation or transfer of those rights to a member of another Sheikhship shall be permitted in any circumstances without the consent of the Governor or his duly appointed representative. The trustees may by the permission of the Governor or his representative grant annual tenancies of any portion of the said plot not required by the beneficiaries provided that all rents and profits arising therefrom shall be held in trust for the beneficiaries generally.

It shall be also the duty of the board to see that the rights are maintained by user. Non-user will result in the loss of the rights and the acquisition of full ownership free of any rights by the Government.

El Tohami Abdel Rahim, one of the trustees, 4ied- in 1954 and no appointment to fill the vacancy seems to have been made. In fact, apart from this involuntary change in the constitution of the board, no change whatsoever seems to have been made therein as contemplated by paragraph 6 of the Terms.

On June 26, 1954, a certain Hassan El Hag lbrahim, apparently petitioning on behalf of his father, claimed ownership of sagia10 by prescription. He was called upon to produce fetwa of the heirs and survey sketch of the land claimed. He then reappeared on July 29. 1954, and without any explanation apparent in the record, was allowed to alter his claim to a right of cultivation” over:

 (a) 38.9 feddans in sagias 9 and 10, and

(b) 14.5 feddans of unregistered land the whereabouts of which were not indicated.

The usual notice was served on the Attorney-General apparently because of (b) above but the Attorney-General notified his intention not to defend the action.

On February 10,1955 plaintiff applied to exclude bugur 9 from is claim and his application was granted.

On May 9 ,1955 plaintiff appeared before the court as well as all the three surviving trustees. A certain Gasm El Sid El Tuhami, said to be sole heir of El Tuhami Abdel Rahim, was allowed to represent the estate of his father in ignorance of the rule that on the death of a trustee the trust estate devolves to the surviving trustees by survivorship.

Plaintiffs’ case is stated to have been explained and defendants to have admitted liability. Decree was accordingly entered for plaintiffs for rights of cultivation over 5o. feddans made up as follows:

(a) cross-hatched red above bugur and 10 Gereif West 145 feddans

(b) hatched red in bugur 10 ...            ...             ...             ... 35.991

On November 7, 1955. about six months from the date of the decree, Advocate Ahmed Suleiman, representing the present applicant, Abul Gasim Abdel Rahim, applied to the Honourabie Judge of the High Court against the decree in question contending that he was one of the beneficiaries, i.e., one of the residents of El Gereif Gharb, and that any decision concerning the communal rights which failed to give him notice of the proceedings and to join him as a defendant was obviously unjust. He relied on Civil Justice Ordinance, Order VII, r. 8, as giving the court power to join any person as plaintiff or defendant if the presence of such person is desirable for a just decision of the suit.

In answer to this application, the respondent, represented by Advocate Mohamed Ibrahim Khalil, pleaded Civil Justice Ordinance, s. 182, con tending that the remedy lay in a fresh action.

The Honourable Judge of the High Court accepted the argument for the respondent and ruled that there was no reason for the court to join applicant as a co-defendant as applicant was not bound by the decree and could therefore pursue his rights by instituting a separate suit.

It is from this decision that the present application is now being made.

Before us, the advocates for the contesting parties simply reiterated the arguments made to the Honourable Judge of the High Court. Applicant was again represented by Advocate Ahmed Suleiman, and responde by Defalla El Hag Yousef.

Neither before us nor before the Honourable Judge of the High Court was the quality of applicant as beneficiary denied by the respondent and it can therefore safely be assumed that applicant is one of those in whose favour the trust was created. Again there is no doubt at all that the respondents are beneficiaries. In fact petitioner himself, late El Hassan El Hag Ibrahim, who represented the respondent heirs at least until the suit was finally disposed of in the District Court, was one of those who appeared before the Settlement Officer on October 29, 1929, claiming, though un successfully, full ownership of the land in question.

It is now for this court to decide whether the decision of the Honourable Judge of the High Court that applicant was not a party to the proceedings and hence his only remedy lay in instituting separate proceedings was a correct decision. In our opinion it is not. It is true that applicant was not a party to the original proceedings, but is that a reason why he should be denied the right to question the validity of the decree? The matter is no doubt governed by Civil Justice Ordinance, s.174 (1), which says Subject to such conditions and limitations as may be prescribed any person considering himself aggrieved by a decree from which no appeal is allowed may apply for the revision of such decree.” If applicant is therefore a person aggrieved “ within the meaning of that section. then clearly he is entitled to apply to have that decree set aside. In Re Sidebotham (1880) 14 Ch.D. 458 it was said that a person aggrieved must be ‘ a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrong fully refused him something. or wrongly affected his title to something.” That was a case under section 71 of 1869 English Bankruptcy Act which provided that “any person aggrieved by any order of a local bankruptcy court in respect of a matter of fact might appeal “ but the principle appears to us to be the same. i.e.. was the applicant wrongfully refused or deprived of something or was his title wrongfully affected by the judgment appealed against? If the answer is in the affirmative, then no doubt that person is entitled to appeal.

We are of opinion that as the decree now puts an end to applicant’s rights to graze his cattle or cuItivate on the land in question without giving him an opportunity to be heard, then no doubt it is wrongfully depriving him of that right within the rule above cited and hence entitles him to make an application under section 174. If, therefore, applicant is a person whose application against the decree is maintainable, is his application to be acceded to on the merits? Clearly it is. The learned District Judge appeared to have treated the matter as governed by Civil Justice Ordinance, S. 112, by allowing action against the trustees only; but that section is applicable only where the contention is between the persons beneficially interested and a third party. Where, therefore, the contention is between the beneficiaries, inter se, the section is inapplicable and the beneficiaries themselves have to be made defendants. It may be con tended that it would be a heavy burden on respondent to join all the beneficiaries in the present case as defendants. That may be so, but the right he claims affects a whole community and if he chooses to embark on proceedings the effect of which would be to deprive that community of an established right, then he must face the consequences. I it will be seen from paragraph 7 of the terms of the trust quoted above that the

trustees are bound to make annual allotments and to prepare and maintain  lists of allottees. In our opinion therefore, the ascertainmet of the beneficiaries, which was contemplated to be an annual job of the trustees. does not seem to be a heavy, let alone an impossible. burden. At an\ rate. Civil Justice Ordinance, 5. , requires plaintiff to give the name, description and place of residence of the defendant, so far as they can be ascertained. and by implication would exempt the plaintiff from giving such details in proper cases.

This application is therefore allowed with costs and the case is hereby remitted to the court of the District Judge for rehearing after joining applicant and such of the beneficiaries as may apply to be so joined. To guard against any failure by respondents to include all interested beneficiaries the learned District Judge should, in our view, make a public notice of the claim and date of hearing. which notice should be displayed in as many public places at Gereif  West as is conveniefltly possible. Anyone who appears in response to that notice and proves to the satisfaction of the court to be a beneficiary should be joined as defendant.

M. A. Abu Rannat C .J. October 1. 1960:—I concur.