Civil Prooedure- nes judicnt%- Uativc court sanction of a oulh -

Uhether n bar to subsequent. proceedings on sane issues.

Judgment - lTative courts- Sulh a.pproved - flhcther proper judicial
sa.nction given.

Native courts- Jud&ment - Sulh approved - iihether proper judioial
sanction ~iven.

* tllicre th-e native oourts ,~ore competent to deal Hith the subject
matter of a ciaim, and the decree of the native Court '\-Ias awarded
"after investigation and hearing of the statements- of all in the
presence of so n;aJ'IY ~~oslems Hho had arranged the sulh of the

• parties," and· the reoord Has sealed by the President of the oourt
  under the ,~ords "I ao"Toe to this sulh," and upon appeal after the
  members of the 001.4-<t •• he had. been pres ant a.t the original sitti.."lg.

They Si-TOre that a sulh had taken place, it was approved and. oon-
firmed, proper judicial sanction "las given to the su-lh

1. Uhere a matter had been substantiaJ.l.y in issue before a native
   oourt and proper judioial sanction by that oourt had been given
   to a sulh, and the native oourts t~ere competent to deal with the
   subjeot matter of the olaim, and the terms of the sulh were not
   unreasonable nor oontrary to native custom, the judgment of the
   native oourt ,.,ill operate as a bar to a later suit on the same
   subject.

Revision •

.o:C.4I.~'!t;.X~j·!~ 2y}!;'uslCIIlap. ll..,iPo. , This Has originally a claim aga,inat
the registered o"mera to land of \>1hioh the greater part 1s in Sag1a

No. 16, Gersi Village of Shendi Dis'triot. To the claim to land was
added a ola.im to date trc'''3 on it, and it is with this part of the olaim

* Court: Flaxman, C.J. and O'Meara. J.

that we are concerned. The claim to ownership of the land was dismissed
. and is not the subject of this application.

There were 88 date trees, large and small, on this land. and the
learned Judge of the High Court, Northern Province, has found for reasons
set out in his judgment that they are the property of the plaintiffs.

It is from this decision that the present application is made. The
defendants have throughout contended that the question qf the date

trees is res judicata, a sulh having been made by the parties and
embodied in the decree of a competent native court.

This question. of res judicata was in issue in the court below,
where issues "lere framed as follows:

"Was Exhibit S a genuine decree issued by a court of competent
jurisdiction in the dispute between the parties?"

If so, is the present suit barred as res judicata?

The latter issue was one of la,~, and might well have been determined
before the issues of fact were embarked upon, for if the anSl'ler is L"l

favour of the defendants, the suit is at an end by reason of the prior
adjudication on .the subject in dispute by a court of competent jurisdictirc .•
It cannot, I think, be disputed. that the native courts concerned, the

Mogren Court and its appellate court, are competent to deal with such

a claim as this.

, That these courts have purported to deal with the matter is clear
from the reoords before this court. The learned. judge of the court
below has.decided that the "so-called hukm" was "really a sulh of the
Qruia of Mogren," but that the plaintiffs never acoepted. this sul.h, and
that the sulh "oontains no elements of a judgment properly s~lled,,,
and it is \-lith this decision that the defendants express themse~: as
dissatisfied. It is the only matt&r for our present .consideration,

for if this decision of.the .learned Judge of the High Court is not

upheld the plaintiffs' claim must be dismissed as a matter on which
there has been prior adjudication.

We have made a careful examination of the copies of the r-ecorda

of the hearings before the native oourts at El Basli on April 18, 1939,

and in the appellate court under the presidency of ~10hamed Sherif El
Zubeir at El Damer on March 30, 1940. At El Basli the present plaintiffa
appeared and claimed the date tre~s, the defendant heirs of Ahmed El
HowaI' being represented by on e of their number, Abdal Majid El HONar,

who has come before us in this court. The record 0110\-18 that judgment

vras given, t\-JQ thirdfJ of the trees being awarded to the plaintiffs and
one third to the d.efcndant heirs, "after investigation and hearing of

the at at ernerrt s of all in the pr-enence of so many ~Ioslems 'l'lho had. arranged
the ~ of the parties ••• "and it appears that the record is sealed

or signed, not only by the President of the court, the CAndo. of 'Mogren, /
but by six member-a, On July 15, 1939, it was sealed by ·the President

of the Branch Court under the words "1 agree to this Gulh."

In 1940 it\ seems that the parties Here still in dispute, for the
present plaint iffs appealed against the judgme.."1t of t he 1,Iogren Court,
and the appeal 'I.J.G heard. on ~larch 30, 1940 before the Branch Court,

the Presider.t sitting ~Iith four members. It appear-s that the sulh was
set up as a defence, and t hat the Branch Court, aft€:r calling upon the
members of the Mogren Cour'!; who had. been present at the origirral sitting
to 'o.lear that a sulh had' taken place, approved and confirmed it.

In our vie~·l proper jud.icial canct Lcn ~-::J.S b~":C."'l tc the sulh, end

the aotion before the High Court at Damer should not have been raised.
The terms of the sul.h uer e by no means unreasonable and not contrary
to 'native custom. Having perused the copien of the records in the

nat i ve courts we are unable to agree \·li th the decision U.at t4ere were
"no e.l.eraerrt s of a judgment properly so-call€:d" in connection •. lith the
claim to the date trees, and the matter having been SUbstantially in
issue ru1d disposed of in the native court is in our view a bar to its
further consideration in the civil courts. The claim for.revision of
the decree in the High Court, Darner is allo'led and the decree set aside,
the matter in issue baving already been disposed of in a competent
court.

O']lleara, J.: I concur.

Application allowed.