Prescription-A bandonment of acquired rights-A cquiescence ill sale by regis-
tered owners

Prescription-Rectification of the register-Discretionary remedy

In 1906 plaintiffs' father sold a share in a sagia at Gereif West to
first defendants, which share was subsequently registered to first defend-
ants. Plaintiffs' father. however. remained in undisturbed possession. and
applied the rems and profits for his own benefit. In. September 1938 the
first defendants sold the land by registered transfer to the second defend-
ant, a villager of Gereif West. The negotiations for sale and the actual
transfer were known to the plaintiffs. At the request of the tenant of the
plaintiffs, the second defendant allowed him to remain in possession until
the end of 1938, when second defendant himself went into possession. and
incurred expense in improving the property. No objection to any of these
events was raised by the plaintiffs until they initiated proceedings on No-
vember 20, 1939.

Held: (i) Had the plaintiffs brought an action under section 3 Pre-
scr iption and Limitation Ordinance 1928 before September 1938 they would
have succeeded.

(ii) (Per Creed C.l. and Evans R.G.L.: Cumings J. doubting) The
acquiescence of the plaintiffs with full knowledge in the transfer to the sec-
ond defendant and his improvement of the property was an abandonment
of their interest and rights in the property.

(iii) The remedy of rectification under section 85 Land Settlement and
Registration Ordinance 1925 is discretionary. and should not be granted to
the heirs because they did not apply for rectification against the first de-
fendant, and because their inactivity gave the second defendant reason to
believe tbat they bad abandoned their rights, and led him to act on that
belief and incur expense. It would be inequitable, therefore, to turn out
the second defendant, who was guilty of no fault, in favour of the plain-
tiffs.

Abdel Azi: Abdel Hakem v. Stomatopoulo 8ros. AC-REV-45-1939, 2
S.L.R. 364 referred to.

Sarkis Lzmirtian v. Heirs of Mohammed Orphi Pasha AC-APP-19-1931,

S.L.R. 511 referred to.

Freeman 1'. Cooke (1848) 18 Ll. 114, 154 Eng. Rep. 652 applied.
Pickard I". Sears (1837) 6 A. & E. 469, 112 Eng. Rep. 179 cited.

Land Settlement and Re gistrution Ordinance 1925, s. 85.

Prescription and Limitation Ordinance 1928. s. 3.

~ Court: Creed C.J., Evans R.G.L. and Cumings J.

Appeal

May 29, 1940. Creed C.J.: This is an appeal from the decree
of the judge of the High Court by which he summarily dismissed the
application for revision of the decree of the district judge. By that
decree the district judge dismissed the claim of the plaintiffs and
present appellants for a delcaration that they are owners of a certain
plot of land under section 3 of the Prescription and Limitation Ordi-
nance 1928, and for an order that the land be registered in their
names.

The facts of the case are briefly these. In 1906 the plaintiffs'
father sold three habls tumani in sagia 13, Gereif West, to the first
defendants, Messrs. Starnatopoulo Bros., and the sale was duly reg-
istered at the subsequent land settlement. The plaintiffs' father, how-
ever, remained in possession of the land, and on his death it came
into possession of the present plaintiffs. This possession was undis-
turbed until the latter part of the year 1938. During this period the
plaintiffs' father and later the plaintiffs themselves exercised the rights
which are normally exercised by an owner of property, either cultivat-
ing the land themselves, or letting it to others and collecting the rents
for their own benefit. 111 the year 1938 Messrs. Stamatopoulo ap-
parently suddenly awoke to the fact that this land was still registered
in their names, and in the latter half of the year made efforts to sell
the land. Enquiries were made by them in Gereif as to possible
purchasers, and the sheikh of the village was anxious that it should
not be sold to anyone living outside the village. As a result of his
efforts in the village, a purchaser was found, the second defendant,
El Rayah EI Saeed, also a villager of Gereif. That these negotiations
were known generally in the village of Gereif and that the present
plaintiffs had knowledge of these negotiations docs not appear to be
open to doubt. They made no protest against these negotiations, and
made no representations to the sheikh or anyone else that they had
rights in the land. In due course in September 1938 the sale was
registered. The plaintiffs' tenant asked that he should be allowed
to remain in possession until the close of the year, in order to remove
his crops. This was granted, and at the beginning of the year 1939
the second defendant went into possession as purchaser and owner,
without any protest whatever from the plaintiffs, who were residing
in the village, had full knowledge of :111 the relevant facts and con-
sented. After going into possession the second defendant set to work
on the improvement of his new property. Before the plaintiffs' very

eyes he planted trees and incurred other expenses in generally im-
proving the property. On November 15 a certain decision was given
in this court against the present defendants in favour of Abdel Aziz
Abdel Hakern.' It is unnecessary for me to set out the details of that
case as reference can be readily made to the file of the suit. On
November 20 the present plaintiffs petitioned the High Court for a
declaration that they are the owners of the three habls which are the
subject of this action, and paid fees on December 2, 1939. The claim
was dismissed by the district judge, and his decision has been affirmed
by the judge of the High Court. An appeal has now been lodged in
this court.

The district judge has found that "from 1906 to 1938 the land
was in more or less continuous cultivation by Abbas Saeed or his
heirs or their tenants," but goes on to state that "the plaintiffs' oc-
cupation of this land throughout the entire period from 1906 to 1938
was precario, and they therefore at no time acquired the ownership of
the land under the Prescription and Limitation Ordinance." May I
at once say that I strongly deprecate the use of the word precario,
which finds no place in the Ordinance, and which adds nothing to its
elucidation. The first issues to be decided by the di t'·.t judge were
plain issues, first "Were the plaintiffs in peaceable public and un-
interrupted possession of the land for a period of ten years prior to
1938?" and secondly "If so, were they in possession as usufructuaries?"

It is clear that they were in possession for the statutory period, and .•..
their possession was manifestly peaceable, manifestly public and mani-
festly uninterrupted. It is equally clear that they were not usufruc-
tuaries. Throughout the period 1906 to 1938 they exercised the
rights of ownership and behaved as owners. Had they brought their
action prior to September 1938 there is not the slightest doubt that
they would have had every right to succee 1.

Did the plaintiffs in September 1938 abandon the rights which
they had acquired under the Prescription and Limitation Ordinance?
I am not oblivious of the fact that the (),.~ of proving abandonment
of the rights acquired rests on the defenoant, nor am I oblivious of
the fact that the abandonment must be properly proved, but I am
unable to interpret the conduct of the appellants when the negotiations
for sale were in progress, when the sale was being completed and
after the sale had been completed as indicating other than a clear
abandonment in favour of the registered owner of the rights they had

I AC-REV-45-1939, 2 S.L.R. 364.

acquired. A Sudanese landowner is not slow to complain if his rights
in land have been or are about to be wrongfully infringed. The
plaintiffs raised no protest to anyone when the negotiations for sale
which took place before September 1938 were afoot, although they
had full knowledge of the negotiations. They raised no protest at the
sale being completed and registered, although they had full knowl-
edge of the sale. Their tenant, with their full knowledge and consent,
handed over possession of the property on their behalf to the registered
owner. Not only so, but they stood by and watched the registered
owner spending money on the improvement of the property he had
acquired, and only in November 1939, ]4 months after the sale, did
they make their first protest, claiming an interest in the land. Did
they abandon all their beneficial interest in the land, and license the
registered owner to take possession for his own profit and to the exclu-
sion of whatever beneficial interest they had in the land? I am unable
on the facts to give other than an affirmative answer to this question,
and in my view the plaintiffs abandoned whatever unregistered rights
they had acquired through their long possession.

Even if my view expressed above is incorrect, 1 am still of the
opinion that this court should not grant the plaintiffs the remedy for
which they ask. The granting of the remedy is purely discretionary,
and for the reasons set out in the judgement of Cumings J., which I
have had the advantage of reading, I am of the decided opinion that
it would be grossly inequitable that this court should exercise its dis-
cretion in their favour.

In my opinion this appeal should be dismissed with costs.
Evans R.G.L.: I COncur.

Cumings J.: The facts of the case are fully set out in the judge-
ment of the Chief Justice, and I agree with that statement of them.
In my opinion this appeal should be dismissed, and the decisions below
affirmed, but not for the reasons given there. with some of which 1
positively disapprove.

The first issue was in my opinion too wide, and reaUy contained
two issues. The first one of these was whether the plaintiffs had
occupied the land for more tban ten years before the end of 1938.
It should have been clear from the start that they had done so. and
the time of the court was wasted by que tions as to "whether Gasm
El Sid died before Abbas" or vice versa. Clearly Stamatopoulo never
occupied the land from the day he bought it from plaintiffs; clearly

someone had occupied the land. and clearly that someone was the
plaintiffs. But the important and disputed questions of fact as to
what happened after Srarnatopoulo came and claimed the land at
last were inadequately investigated. The second issue was whether
that occupation amounted to "a peaceful, public and uninterrupted
possession" of the land by a person not being an usufructuary "within
the meaning of those words in section 3 of the Prescription and
Limitation Ordinance 1928."

The only claim of the defendant on this was that the occupation
was not "possession" because of the lack of a certain mental element
in the plaintiffs, the elusive animus domini of the Hassa judgement of
Owen C.J. But Maclagan D.J. found in favour of defendants on this
issue, on what seems to me to be a different ground, that their oc-
cupation was precario, with which I do not agree, for, as I understand
the meaning of that word as used in the Roman law, it meant that
the occupation was by permission of the owner, which is not the
case here. But if the learned judge meant only that the plaintiffs
had not the necessary animus, then I disagree. It seems to me that
they had just the same state of mind when they occupiec as Abdel
Hakkam in the previous case over the adjoining lana to this, but
Jess courage in advancing their claim to the court. I really do not
think that the difference in behaviour, after they had lost possession,
from that of Abdel Hakkam satisfactorily proves any difference in the
intention with which they possessed from that of his. They must
have been doubtful of their rights, or even thought that they had no
claim at all, but such a mistake does no-r affect their rights, if such
they had by the law; many judges have been wrong in interpreting
the Prescription and Limitation Ordinance 1928. Animus domini or
animus prcscribendi they certainly need not have: Abdel Hakkam's
case" has knocked that on the head. So, in my opinion, the plaintiffs
could have got on the register years before Stamatopoulo came along
in 1938.

Next, on the defence of abandonment. There is a good deal to
be said for the decision of the district judge, for Sudanese of the
kind of these plaintiffs do not easily submit to losing land, and these
persons did nothing for a year after they had lost the land. Never-
theless, I do not find it so easy to draw the inference (and it is on
the defendant to prove it) that the plaintiffs gave up intentionally
their rights, or any rights they may have had to this land. It seems

, Supra, note I.

to me that it may be that they did not believe tbey had any rights to
give up, or that they thought they had doubtful rights, and preferred
to let Abdel Hakkam litigate them for them. In favour of the latter
inference is the fact that they came to court only a few days after
Abdel Hakkam succeeded. True the plaintiffs have set up another
reason, the fees one, for their delay, which bas not impressed the
district judge, and has not impressed me as the whole truth, but it is
for the defendant to satisfy me, and I remain doubtful. I· should
require much more consideration before I cowd agree with the district
judge that the law as to abandonment, or waiver of rights in land,
and the relation to it of the doctrine of estoppel, is as simple as he
holds it to be. In England, Parke B. said, as to cases where abandon-
ment of a vested right is alleged, in Freeman v. Cooke (1848) 18
L.J. 114, 154 Eng. Rep. 652, at 657, "In truth, in most cases to which
the doctrine in Pickard v. Sears" is to be applied, the representation
is such as to amount to the contract or license of the party making it."

But in my opinion there is a short and clear ground, not mentioned
in the courts below, on which the plaintiffs must fail. They are ask-
ing the court to rectify the register in their favour under section 85
of the Land Settlement and Registration Ordinance 1925. The power
of the court to rectify under this section is permissive; "Rectification
of the register may be ordered by the court," and in this case the
question is "should the court rectify in favour of the plaintiffs against
El Rayah?" Let us examine their respective "equities." Plaintiffs
could and should have applied for rectification years ago, and this
delay on their part enabled the present transaction to El Rayah to
go through on the register. They did not oppose El Rayah in his
purchase, though they had notice of the intended sale even before it
was made to him, and they knew when he agreed to buy. They
certainly gave him reason to believe that they bad abandoned any
rights they might have to the land and allowed him to act on that
belief, and incur expenses as a result. Only a:- year later do they come
to the court. On the other hand, EI Rayah seems to have been
guilty of no fault at all. He bought on the register and after enquiries
were made on the -land, and as a result of the plaintiffs actions and
inaction, he reasonably concluded that they were not asserting any
claim to the land. And he has spent money on the land, 'lfrrd now it
would be inequitable to turn him out in favour of plaintiffs. So the
court should not rectify in favour of plaintiffs.

• (I837) 6 A. & E. 469,112 Eng. Rep 179.