HEIRS OF ABDALLA FREIGOUN, Appellants-PlaintiDs v. 'MOHAMMED ALI HAMDUN~ Respondent-Defendant
Land Law-River boundary disputes-Blue Nile custom of mot el iaif
Appellants attempted to prove permanent -ownership of a section of
land adjoining the Blue Nile river as against the respondent who claimed
his possession was justified on the basis that there was a yearly shifting
ownership of the land. T. A. Leach J. held that respondent had proved
the existence of a local custom defining river bountary and was entitled,
under that custom, to remain in possession. On appeal
Held: (i) The courts should give effect to Sudan local custom when-
ever -posstble.
(.ii) By the Blue Nile custom moj el saif the river boundaries between
east and west vary yearly and are defined by the margins of the deep
water channel at low Nile. ....
(iii) The Blue Nile custom recognizes that lasting accretions may,
with long. possession, result in perma~ent' ownership, but .appellants did
not bring themselves within this exceptional situation.
Appeal
The material facts appear from the judgement. No fuller account
of the facts could be given because the case record could not be
traced.
April 15, 1914. Wasey Sterry, Acting, J.e.: This case raises
one of the most difficult questions that arise all over the world wherever
there are rivers whose channel may vary much from 'year· to year. In
course of time local customs usually grow up for' dealing with the
problems that arise, and as' they will naturally represent the . general '
agreement of the persons interested as to what is fair in the circum-
stances, with which they are all familiar, a court of law should, it
seems te me, give effect to those customs whenever possible .
.-Iii this case Mr. Leach' has found that the general Blue Nile
custom, which is commonly expressed in title deeds by giving the.
)tiver boundary of properties as the "moj el saif," is that the boundary
·Court: Wasey Sterry, Acting J.C.
between east and west should vary from year to year, and be defined
by the margins of the deep water channel at low Nile.
He has qualified .the rule by this, that accretions . may, by long
possession and their more permanent character, lose this quality of
shifting ownership and obtain a permanent one: . He has, however,
found that in this particular case there is not sufficient length of
possession or permanence of the land in dispute to modify the general-
custom. That the. custom is fairly stated by him seems to me con-
firmed by the fact that he had inquired into and made record of it
before this. dispute came before him, at the request of the Governor.
The evidence given before me also points to the same conclusion.
The appellants have tried to bring themselves within the quali-
fication stated by Mr. Leach, I do not think they have .succeeded or
that such doubt as one may reasonably feel in such a.case is sufficient
reason to upset his judgement.· And the judgement is 1Urther supported
by this: that, failing the system of mirins which north of Khartoum
is the customary method of settling such disputes, the Blue Nile custom
seems to be the only method of settling rights of cultivation with
any reasonable certainty. The only difficulty that arises would seem
to be to ascertain the point at which annual possession may be said
, to have ripened into ownership. . That question may have to be settled
more exactly on a 'future occasion, and I could only in. passing note
that when it is settled more evidence over a wider district should be
obtained, and that it may" be necessary to lay down that one bank
shall not acquire rights of a permanent character beyond the centre
line of the stream.
Appeal dismissed