. Estoppel - Agency - Act ion on behalf or assumed on behalf of

estops agent fro~ later denying agengy relationshi~ or that agent
acted on principal's behalf.

Evidence - Judge's research - \fuether can be considered as to factual

disputes in rendering judgment.

Evidence - Subdivision agreement - Inadmissible against·non-signer if
not a \1itness to it or has not approved of it. tacitly or otherwise.

Land law - Sale of land - \fuether land \~as purchased by vendee as agent
for brother or for himself - Burden of proof thereon.

Prescription - Family relationship - l'Ihether possessar,y acts Here sufficient
to prescribe against brother - Burden of proof thereon.

Plaintiff contended that defendant, his broth~r, had purchased
certain shops for him as his agent, but had fraudulently secured
registration in defendant's name. He offered an. agreement of sub-
division made bet\>leen himself and one Ali Mustafa Tabbusha on

behalf of the heirs of Abdel Aziz Shalabi as evidence of his o\mer-
ship. Defendant claimed the shop was owned by hims·elf and Abdel
Aziz Shalabi, and.that plaintiff merely served as his a~nt in the
shop. During his research in the Land Registry the judge discovered
a petition in \1hich plaintiff .had sought an order Compelling the
heirs of Abdel Aziz Shalabi to carry out repairs and alleged he \1aS
acting on behalf of his brother the defendant.

~: (i) The subdivision agreement between plaintiff end Ali
Mustafa Tabbusha was inadmissible as evidence G~ainst the defendant
beoause he \-tas neither a witness to it nor in c:m::! way approved of
it, tacitly or othervlise.

* Court; Babiker A'I'ladalla, D.J.

(ii) The petition brought by plaintiff in which he admitted
he {las . .:tct ing on behcLf of his brother operates as an estoppel in
favour of d.ef'endant o.gainst a denial by plaintiff that he was
defendantis agent.

(iii) Plaintiff failed to carr.y his burden of proof as to his
o~~rship of the land both by the purchase by his brother allegedly
on his benalf and by prescription.

Roberts v. Ogilby (1821) 9 Price 269.

Action.

~!b.r:i:~ )5~ .1~1.t1o, .Illllbik:~r Awadl'iff9r :'O;J,I This is e. cC'.se betHeen t110 full
1n'others, natives of 1M'co. 'l'o'In, in 1111ich ;12_intiff is E.pp~ing for a
declaration th2,t he is the owner' of shop 2 Block I.D. Rufa..~. Suk registered
in the name of the defendant, or, in the c;lternative, that he acqu i.r-ed
cwner-shd.p of the said shop by prescription.

Plaintiff clleges as foJ"lows. Between 1912 and 1926 he ,~as a"ley

fro~ Rufaa trncling at different part:3 of the Sudan (to \-1hich his eldest
.brother end brother of defendant I-Ias posted as a qadi). He contends t!lat
defendent was managing his affairs generally during his absence, and for
that 2nd other purposes, he used to send him money, some of which defendant
expended in the purchase of immovable property on behalf of plaintiff.

In that capacity, defendant bought an undivided half of each of shops 1

and 2 Rufaa Suk and actually informed plaintiff in 1927 thr:.t tho said

shops Here boue,ht out of plaintiff's noney Md on plnintiff's behalf.

In the Settlement of Rufaa Suk defendant frruddently re;3'isterec', the add
undivided halves in h i,o oim name, the other halveo being registered in the
names of. heirs of Abdel Aziz Shalcbi. On his retirement from business in
1927 he took possession of the said shops eitherOpersonally'or through
tencnts until 1928 t;hen a dilapidation notice lIas served on him end his
co-oimer-s , consequent upon Hhich e. consent sub-division l1<lS made and
reduced into ,o1riting: (This is Exhibit A in whd ch Ali Mustaf'<:!. Tabbusha
signed on behalf of the heirs of Abdel Aziz Sht.le.bi). By virtue of the
said eub-d i vi sdon he eot the'"!Jetter situated shop No.2 on paymerrt to

his CO-ONners of LE.7.500m/ms. In 1937 he rebuilt the said ahop in red
bricks out of his olin pockat , Only in 1939 did he discover the fraudulent
registration ~;hen he intended to transfer the said shop by Hey of gift to

his son. Defendant at that time acknowledged the fraud and promised to
make the transfer to plaintiff's son and actually petitioned the Registrar
of Lands for that purpose but could not complete gift formalities owing

to the shop being then under restraint in execution proceedings. in favour of
Messrs. Contomichalos.

The defendant denied having ever acted as an agent of or received
monies from plaintiff either for the purchase of property or. otherwise.
He contends as follo\'ls. The shop in dispute, together with shop No. 1
were owned by him and Abdel Aziz Shalabi in undivided shares since a
short time after the advent of this government. The sub-division by
which defendant got shop No.2 registered in his own name was made in
1938 with the consent of qadi Rufaa after the death of Abdel Aziz Shalabi
and he has no knowl edge of the alleged sub-division inade by plaintiff.

If in 1931 plaintiff had a hand in rebuilding the shop it was simply in
his capacity as defendant's agent. The application for gift of the

shop to plaintiff's son in 1939 was merely a futile attempt to defraud
Messrs. Contoinichalos who had then a joint and several decrees against
plaintiff and himself.

The shop in dispute is now subject - on the Register at least - to

a mortgage of LE.50 in favour of el Ameer l.iahgoub (nephew of both parties).
Plaintiff made some reference to this mortgage in his statement in an
effort to connect it with the subject matter of this case. It really
forms part of another matter under litigation between the parties in

this court and in my view has no bearing whatsoever 'upon the merits of
this application. In fact, if anything, it tends to confuse.

The case is complicated by the fact that brotherly relations were
maintained by the parties for a very long time after th~ alleged fraudulent
registration, and that during that period 1921-1940, the parties seem to
have acted the one for the other without question by any of the people

of Rufaa with whom the parties had business (see the statements of P.U.6
and 1). Their relation, as common in such c,§tses, became strained some
years after the dissolution of a partnership into which they entered about
1934 for the purpose of running an agency for Messrs. Contomichalos.

The following two issues were framed: (1) Was plot 2 Block I-D
Rufaa Suk comprising 45 sq. m. originally the property of plaintiff and
was it registered by defendant, who "las acting as agent for plaintiff,
in his own name by fraud? (2) If not, has plaint iff been in peaceable,
public and uninterrupted possession as owner of the said plot for the
last ten yeiU's? It woul.d be easier to follow the usual practice and
consider the issues in their order. The onus of both issues is on the
plaintiff.

As to issue (1): P.W.l, 2, and 3 gave direct evidence in favour of .
plaintiff. Though their relation to both parties is the same I am giving
little or no weight to the evidence of P.W.l and 2 who did not impress

the court as witnesses of truth. As to P.H.3 there is too much ccntradictory
evidence to allo\i me to give any regard to his testimony. P.W.5, 6 and 7
were the witnesses to ~. A - the agreement of sub-division made between
plaintiff and Ali Mustafa Tabbusha (PW.8) in 1928. This document is
inadmissible as evidence against defendant because he vias neither a

witness to nor in any we;{ approved of it "hether tacitly, by being present

at the time of its execution, or otherwise. I am inclined to believe

tltat plaintiff in that agreement was acting on behalf of defendant and

that the ilam of sub-division made in 1938 ~ which the shop in dispute

was registered to defendant was simply giving official recognition of

that agreement. This is because the amount given to heirs of Abdel Aziz
Shalabi ~. LE.7 • 55rn/ms was declared in the said ilam to have been received
by the heirs in compensation. p.w.8, agent of the heirs, stated that his

own knowledge was that the shop "las owned by defendant but th,at plaintiff

was the person in charge.

Save for the application for gift of the shop in dispute to plaintiff!s
son, I was unable, despite a thorough research in offioial documents· both

in the Lend Registry and Rufaa Sharia Court, to find anything substantiating
plaintiff's allegation.

~oreover, the said researohes disclosed the following oogent pieces
of evidence in favour of defendant:

-- From a perusal of the relevant plot files, I found as a faot that
plaintiff \1aS present at the Settlement of Rufaa Suk in 1925 and actually
registered two shops in his own name, viz. shops 28 and 29 Block I-B.

Those shops were admitted. by plaintiff in the settlement proceedings to
have been bought for him by his father. It is noteworthy that plaintiff
stated that defendant was his sole agent in the purchase of property.
Though the dates of appearance by the parties before the Settlement
.Registration Officer were different - defendant appeared on May 6, 1945
and plaintiff on May 20, 1945, I am not at all satisfied that plaintiff
had no knowledge of the fact of registration in defendants ovm (l(jme ••

I also found that on February 1, 1928 plaintiff petitioned the
District Commiss.ioner, Rufaa applying for an order compelling the heirs
of Abdel Aziz Shalaby to carry out repairs or in the alternative for
partition. In that petition plaintiff explicitly stated that he was

act ing on behalf of his "brother" defendant. This, over and above the
fact that it leaves no doubt in my mind as to plaintiff's knowledge of
the Register, operates as an estoppel in favour. of defendant against a.
denial by plaintiff of representative authority. In Roberts v; Ogilby,
(1821) 9 Price 267, it was held that the assent of the agent is implied
whenever he-acts or assumes to act on behalf of another person and, after
having so acted or assumed to act, is estopped from denying that an
agency in fact existed or that he acted on his principal's behalf.

In 1937 defendant appli'ed to the Land Registry for a sale of the
halves of the two shops 1 and 2 for LE.20 to plaintiff. Plaintiff
admitted in court that the said application was made to his knowledge

and with his consent. As such, it ':'lOuld be inconsistent with his

present application. It is true that plaintiff alleges that the agree-
ment of sale lias fictitious and was simply an attempt to restore to him

a lost right. I am unable to accept this explanation for the reason

that both parties in my view well know that so long as no money passed
hands it would cost four times as much to effect a transfer by sale than
by gift. Defendant's allegation that the sale was a genuine one dictated
by personal circumstances carries a greater probability of truth.

As to the allegation of gift, plaintiff states that in 1939 defendant
petitioned the Registrar of Lands for a gratuitous transfer to plaintiff's
son el Nagi of the shop in dispute. This is half the truth. Defendant

in fact ~plied ~or a transfer of two shops, ~., the shop in dispute

and shop No. 12 Block 2-E RQfaa Suk,as gift to plaintiff's son. Plaintiff
alleges that the said application was consequent on his discovery of the
fraud. when he wanted to tl'ansfer the shop to his son and that on

Judgment for defendant