(COURT OF APPEAL)

FATIMA MOHAMED NASIR v. EL AMIN SIDDIK AND (YFHERS

AC-REV-95-1967

Principles

  Land Law—Expiration of a long-term lease—Relation is transformed into annual tenancy if lease not renewed

  Land Law—Easement—Owner cannot acquire and easement over his property by prescription

(i) On the expiration of a long-term lease the relation is transformed into an annual tenancy if the lease was not renewed.

(ii) An owner cannot acquire by way of prescription an easement over his property.

Advocates: Abdel Wahab El Khidir and Camal El

Judgment

Din Wida’a for applicant

Mahdi Mohamed Ahmed J. September 23, 1969: —This is an application to revise the order of Province Judge, Khartoum, dated December 13, 1967, dismissing summarily an application for revision against the decision of District Judge, Omdurman, dated October 8, 1966 dismissing applicant’s claim for title or easement by prescription.

The gist of the present application is that the trial judge was wrong in dismissing applicant’s claim under the Prescription and Limitation Ordinance, s. 6 (A), because on December 21, 1963 the same court ruled that the above section does not apply in the circumstances of the present case and the trial judge has no power to overrule this decision. App1icant counsel contends that alternatively if the decision of the trial judge is correct, it must apply to second respondent only and must not affect applicant.

To dispose of this application it suffices to say that the trial judge did not dismiss applicant’s claim under the Prescription and Limitation Ordinance, s. 6 (A). It seems that applicant did not read the judgment of the trial court carefully. The claim was dismissed because the court found out that applicant’s lease expired in 1944 and was not renewed,

and it concluded therefrom that applicant was not legally in possession and therefore, has no legal standing.

I admit I am not quite happy about this conclusion of the trial court because it seems to place applicant in the position of a mere trespasser. To the best of my knowledge on the expiration of a long-term lease the relation is transformed into an annual tenancy if the lease was not renewed. However I do not think the exact status of applicant will have any bearing on the outcome of this case.

Applicant is claiming a right of light. Such a right is not a natural right, but an easement which must be acquired: Clerk and Lindsell on Torts (12th ed., 1961), p. 664. An easement is defined in the Prescription and Limitation Ordinance, s. 2, in the following terms:

"Easement’ means a right, profit, benefit or privilege not arising out of contract, which a person or the general public enjoys over any land in the ownership of another, and in restriction of the full enjoyment of such land by the owner thereof".

Thus an easement is a benefit to one person and a restriction on another. It follows that identity of ownership or occupation negatives easements. To say that an owner of land can acquire an easement over the adjoining land which also belongs to him will be a contradiction in terms. Owner ship is the entirety of rights that can be enjoyed over a thing. Hence there would remain nothing for an owner to acquire by way of an easement over his property. He has everything that could be had. Therefore, the finding of the trial court of December 21, 1963 excluding the application of the Prescription and Limitation Ordinance, s. 6 (A), on the grounds that the two plots in question are Government land and therefore an easement can be established in favor of the one over the other, is untenable. The Government will gain nothing by restricting its full enjoyment of the servient plot. See Cheshire, Modern Law of Real Property (9th ed., 1962), p. 450 and see Gale on Easements (13th ed., 1959), p. 131.

Again an easement being a right in rem and not in personam it is not available to a lessee however long his term may be. See Cheshire, Modern Law of Real Property (9th ed., 1962), p. 486. The English term “fee simple” is synonymous with the term freehold and connotes ownership. However, the English Prescription Act 1832, S. 3, provides an exception in the case of an easement of light. In the case of Morgan v. Fear [1907] A.C. 425, it was held that a right of light can be acquired by a termor over land held by another termor under the same reversion by virtue of the English Prescription Act 1832, s. 3. If we abandon legal jargon this simply means that a lessee can acquire a right of light over the land of another lessee even though the two lands were owned by one landlord.

However, if we thought it desirable to receive such a statutory exception into our law, we will be faced with the Prescription .and Limitation Ordinance, S. 6 (A). This section contains an express prohibition “ No easement may be established over any land after it has been registered in the name of the Government.

Respondent’s plot was registered in the name of the Government before applicant obtained his lease, and an easement being a right in rem it will attach permanently to the plot and, therefore, will bind both the lessee and the landlord which is the Government. Hence the said exception cannot be received except in the teeth of section 6 (A) of the above Ordinance.

I conclude, therefore, that applicant’s claim whether for an easement or title by way of prescription is unmaintainable. I wonder if he could not obtain a remedy by invoking the Buildings Regulations and moving the building authorities? However he could proceed against the surveyor or the survey Department for negligence if he so wishes.

This application is summarily dismissed.