(COURT OF APPEAL)

SUDAN GOVERNMENT v EL AMIN EL BEDRAWI

AC-REV-260-1986

Principles

Prescription—Prescription against the government—prescription and Limitation Ordinance, s. 6 (A)—Right may be acquired by prescription for periods prior to the registration if the claim is not time barred

Prescription and Limitation Ordinance s 6 (A) bars claims by prescription for periods after registration is effected in the name of the Government but does not prohibit establishing prescriptive titles for periods prior to the registration in the name of the Government if the claim is not time barred.

Advocates: Abdel Hafiz Abdel Aziz  for the Advocates

General                        for the applicant

Abdalla El Daw             for the respondent

Judgment

Madhi El Fahal J. August 31, 1969 :—This case raises interesting points of land law, i.e. the finality of settlement decisions and the extent of the Prescription and Limitation Ordinance 1928, s. 6 (A).

The application at hand by the Attorney-General challenges the decision of the District Judge, Khartoum, which was upheld by the Province Judge, that the land in dispute at Burn be registered in the name of the respondent. The Attorney-General’s petition raises two contentions:

1. That as the land was registered in the name of the Government and the six months period fixed for revision by the Land Settlement and Registration Ordinance 1925, s. 18 has lapsed then the applicant cannot sue unless he alleges error or fraud or claims by prescription according to section 85 of the Ordinance.

2. That the respondent cannot claim by prescription because the Prescription and Limitation Ordinance, s. 6 (A), precludes such actions after the land is registered in the name of the Government.

As to the first contention, it has now been established that a settlement decision is not a bar to a claim for prescriptive title over the settled land whether such title was acquired before the settlement or during it—per Mr. Justice Osman El Tayeb in Heirs of El Nayal Abdalla v. Abdalla Idris (1960) S.L.J.R. 59, agreeing with an earlier decision of Mr. Justice Nur, in NPR-80-1956. This is now established law as held by a full Court of Appeal in the case of Abdel Rahim Elias and Others V. Heirs of Musa Karrar and Others, AC-REV-I53-I967 where Mr. Justice Osman El Tayeb stated:

I have no doubt in my mind that after the register has become final it becomes subject to rectification under any of the reasons mentioned in the Land Settlement and Registration Ordinance. s. 85 The first registration or re-registration by the settlement may possibly be procured by a mistake of fact or by fraud. These are possible matters that cannot altogether be eliminated and they may possibly occur as in any other proceedings. No immunity or infallibility can be attributed to a settlement officer. The registration that has been procured by a mistake or error of fact or by fraud that could not be rectified by application for revision must find its way of rectification in a Civil Suit. In many cases that come before this Court, and it was found that the settlement officer neglected to entertain a petition that was made to him against a decision of the Registration Officer, and as the settlement was closed, and it was not possible to direct the settlement officer to hear such petition, this Court directed the petitioner to institute a Civil Suit. It was a matter of justice and fairness to that petitioner to whom justice was denied; and on the other hand it is not contrary to law".

As to the case of a claim based on prescription under the Land Settlement and Registration Ordinance, s. 85 (c), it is to be noted that the period of prescriptive possession can continue against successive owners and proprietors whether those proprietors are registered for the first time by the settlement or re-registered on subsequent dealings. This does not make any difference as to the continuity and adversity of the possession. The person who has been in possession before the settlement and so continued after the settlement can afterwards institute a civil suit to establish his title against those persons who have become the registered proprietors by the decision of a settlement. This is the rule in the case of Heirs of El Nayal Abdalla.

This brings us to the second point, i.e. claims of prescription against the Government after the land has been registered in the name of the Government.

The Prescription and Limitation Ordinance, s. 6 (A) lays down that no easement may be established, and no person shall acquire any right or title by prescription, over any land after it has been registered in the name of the Government.

I entirely agree with the interpretation of the courts below that this section bars claims by prescription for periods after registration is effected in the name of the Government. The section does not say that no action can be brought but merely states that no right can be acquired. Thus there is no prohibition against suing to establish prescriptive titles for periods prior to the registration in the name of the Government if the claim is not time barred.

The respondent here proved his prescriptive title and his action was not time barred when raised and hence succeeded.

The application by the Attorney-General is thus hereby summarily dismissed under the Civil Justice Ordinance, s. 176.