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Kevane, Michael
1997.
Land tenure and rental in Western Sudan.
Land Use Policy,
Vol. 14,
Issue. 4,
p.
295.
Article contents
Some General Principles of Acquisition of Ownership of and Rights Over Land by Customary Prescription in the Sudan
Published online by Cambridge University Press: 28 July 2009
Extract
Custom is known as urf in Arabic. In Islam the sources of law are the Holy Koran, the Sunna, the ijma’a, the qiyas and possibly urf Customary law existed before the advent of the Condominium Rule in the Sudan. But the origins of the customs and their nature have not yet been studied seriously. According to section 9 of the Civil Justice Ordinance, 1929, the civil courts of the Sudan may have resort to customary law to reach a decision if there is no express enactment covering a certain situation by applying the formula of equity, justice and good conscience of section 9. Moreover, the law to be administered in personal matters in any suit or other proceeding in a civil court shall be any custom applicable to the parties concerned which is not contrary to justice, equity and good conscience, and has not been altered or abolished and has not been declared void by the decision of a competent court.
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References
2 Ijma’a is consensus of opinion.
3 Qiyas is analogy.
4 1898–1955.
5 Hereafter referred to as “C.J.O.”.
6 See the C.J.O., 1929, section 5. Personal matters under it include succession, inheritance, legacies, wills, gifts, marriage, divorce, family relations or the constitution of wakf.
7 See the C.J.O., 1929, section 5.
8 See the Chiefs Courts Ordinance, 1931, section 7 (1) (a), and the Native Courts Ord., 1932, section 9 (1) (a).
9 Hereafter referred to as “L.S.R.O.”.
10 See the Native Courts Ordinance, 1932, section 8 (1) (c).
page 80 note 1 See the letter from Lindsay, J.H.C., B.N.P., entitled “Native custom as part of the laws of the Sudan”, No. BNP/HC/Gen/2–4, Wad Medani Town, 17.7.1946. See also the Land Law of the Sudan: Cases and Materials, ed. Thompson, (unpublished), 1965, p. 781.
page 80 note 2 I was a member of the team.
page 80 note 3 Hereafter referred to as “P.L.O.”.
page 81 note 1 It literally means the right to the land opposite and below high sagia land on the bank of the Nile.
page 81 note 2 See Owners of Sagia No. 10 etc. v. Owners of Gerfs No. 64 etc. Gebel Um Ali, NP-HC-Rev-165–1947; NP-HC-CS-31–1949-; AC-APP-53–1950—unreported, Stanley-Baker, J.
page 81 note 3 Ad medium filum aquae; aquae means water (river), filum means an imaginary line or thread drawn along the middle of the river course.
page 81 note 4 See “Notes for Guidance for Settlement Officer” (in Settlement and Resettlement of Sortot, Timinar, Lebab and Dirar Island), by R. C. Stanley-Baker, 27–10–53.
page 82 note 1 See the Notes of Stanley-Baker, J.
page 82 note 2 See the Notes of Stanley-Baker, J.
page 82 note 3 It is known as the mirin in some localities such as N.P. Berber District. The gusad principle may not apply when the mirin system applies.
page 82 note 4 See the undated note by Mr. Justice Harrison of the N.P.-“The siting of the medium filum aquae”. The note is probably written in the later 1940s. It has many typing errors, and grammatical confusions; see Land Law of the Sudan: Cases and Materials, op. cit., pp. 794–799.
page 82 note 5 See Owners of Sagia No. 10 El Meknia v. Owners of Gerfs No. 64, etc., Gebel Um Ali, HC-NP-HC-Rev-165–1947-. NP-HC-CS-31–1949; AC-APP-53-; 1950—all unreported, D. Lomax, J., in the C.A.
page 83 note 1 Wasey Sterry, Acting J.C., in Heirs of Abdalla Freigoun v. Mohamed Ali Hamdoun, Ct. of J.C. 1914, J.C. APP-25–1914.
page 83 note 2 It means the waves of summer, when the Nile is low.
page 83 note 3 See the case of Heirs of Abdalla Freigoun, above.
page 83 note 4 N.P. HC-1949, HC-CS-71–1949; AC-APP-11–1950-, both unreported. Three to five feddans of the land in dispute here were registered in the name of the Sudan Government, but the validity of the registration was doubtful. The second defendants, Abu Karroug, were lessees of the questionable registered three to five feddans of the Sudan Government.
page 83 note 5 A feddan is 4,200 sq. metres.
page 83 note 6 Lindsay, J., in the C.A. in Abu Karroug Case.
page 84 note 1 This contention was made in a Shendi D.C. civil suit whose number is not given. It is made by the Attorney-General; I could not trace it.
page 84 note 2 See El Tayeb Abdalla Amin v. El Tayeb Abdalla Ibrahim, Shendi D.C.-CS-54–1953, unreported, Lutfi, D.J.
page 85 note 1 See Ata Al Mannan Ahmed Fellag and others v. Owners of Sagia No. 6 El Damer, and Sudan Government, NP-HC-CS-30–31–32–33–1946, unreported, Lomax, J.
page 85 note 2 See Ata El Mannan Ahmed Fallag and others v. Owners of Sagia No. 6 El Damer and Sudan Government.
page 85 note 3 C.A.-Rev-58–1937-, Sir Thomas Greed, C.J., unreported. Since the land in dispute is new and unregistered the government is joined as a defendant here, but usually the government does not contest the case where others have already exercised rights of possession or if there is no local order empowering government to exercise rights of distribution.
page 85 note 4 See Notes on Annual Distribution of Seluka Land, Berber District, dating probably 1926, probably by A/D.C.P.B. Broadhelm. The notes were salvaged from an old store room in Berber Town by the Sudan Law Project Team; I was one of the members of the team.
page 86 note 1 Taha El Egail and Mohamed Abdel Bahman and Others v. Suleiman Daoud Mandail and Others, C.A.-AC-Rev-35–36–37–38–1953—reported in: Cases in the C.A. and the H.C. 1/3/53–30/6/54, p. 69.
page 87 note 1 Notes on Annual Distribution of Seluka Land, Berber Districts.
page 87 note 2 Taha El Egeil and Mohamed Abdel Rahman and Others v. Suleiman D. Mandil etc., AC-Rev-35 etc.-1953, Stanley-Baker, J., C.A.
page 87 note 3 Ibid., AC-Rev-35–36–37 and 38–1953, Stanley-Baker, J.
page 87 note 4 Taha El Egeil case, H.C. HC-Rev-5, 6 & 7, 1953.
page 88 note 1 AC-REV-189–1957- (1961) S.L.J.R. 149. (Court of Appeal) H.H. Osman El Tayeb, P.J.
page 88 note 2 (1961) S.L.J.R. 149.
page 89 note 1 (1961) S.L.J.R. 149—C.A.
page 89 note 2 M. A. Hassib, J., (1961) S.L.J.R. at p. 153.
page 90 note 1 See Ali Ibrahim and Others v. Sudan Government, Merowe District, DC-CS-45–46–1949; NP-HC-REV-94 & 95—1949 AC-REV-40–1951, (all unreported).
page 90 note 2 See Ahmed Younis and Others v. Abdel Bagi Sheikh Hamed El Nil and another, Hassa Heisa, HC-CS-38–1939; AC-REV-44–46- and 48—1939, (all unreported), Fleming-Sandes, J., in High Court, and Sir T. Creed, C.J., in C.A.
page 90 note 3 Northern Province, Allotment of Government Land in Merowe-Dongola, (rules): Merowe D. Commissioner’s Files No. MD/38A 4, Merowe, dated 13.5.1942.
page 91 note 1 Opposite or below.
page 91 note 2 In re Hamza Ahmed El Malik and Ahmed Mohamed Salih v. Sudan Government, Merowe D.C. CS-25–1944 (first hearing) and 1947 (judgement in review); NP-HC-Rev-109–1947 (all unreported); Mohamed Y. Hashim, D.J. (second hearing).
page 91 note 3 See the Rules of Allotment, supra.
page 92 note 1 See the Judgment in Review in the D.C. (following demarcation) by M. Y. HASHIM, D. J., and D. LOMAX, J., in the High Court. The applicant could raise a new suit in the High Court because the mirin was uncertain and the D.J.’s decree is without prejudice. The D. Court in Hamza case recommended a settlement and registration of the land in dispute because a decree of the court does not bring the disputes to an end. The decree is without prejudice to any subsequent claim and a land settlement.
page 92 note 2 Seluka.
page 92 note 3 Hamza Case.
page 92 note 4 Nafa’ab village.
page 92 note 5 NP-HC-CS-34–1943 (unreported).
page 93 note 1 See Sartout, Settlement Cases (Dongola District): East Bank Riparian Owners v. West Bank Riparian Owners, C.A., AC-Rev-65–83; 88–90; 97–102–1954-all unreported, R. C. Stanley-Baker, J. See: Notes for Guidance for Settlement Officer, R. C. Stanley-Baker, 1953.
page 94 note 1 There might be a local order providing that all unregistered new riverbed seluka land is the property of the government. See Heirs of Mohamed El Nur Omer v. Ibrahim Mohamed El Nur and Others; NP-HC-REV-65–1955—unreported, A. M. Imam, J.
page 94 note 2 Sartout Settlement Cases (Dongola District) East Bank Riparian Owners v. West Bank Riparian Owners AC-REV-65–83; 88–90; 97—102–1954—all unreported, Stanley-Baker, J.
page 94 note 3 See Heirs of Mohamed El Nur Omer v. Ibrahim Mohamed El Nur and others, NP-HC-REV-65–1955, unreported, A. M. Imam, J.
page 94 note 4 See Stanley-Baker, J. ‘s Notes for Guidance for Settlement Officer 1953 and the case of the East Bank Riparian Owners v. West Bank Riparian Owners; AC-REV-65 etc.—1954 unreported.
page 94 note 5 See Heirs of Mohamed El Nur Omer v. Ibrahim Mohamed El Nur and others, NP-HC-REV-65–1955—unreported, A. M. Imam, J.
page 95 note 1 See Heirs of Mohamed El Nur Omer,., where the claim of the donees by reward was weak. The gusad claimant argued that the poor should have been maintained by land from the villages whence they came. See also Heirs of Tahir Abdalla and others v. Abdalla Mahgoub and Others, NP-HC-REV-38–47–1956; (1960) S.L.J.R. 5, Imam, P.J.
page 95 note 2 See above, p. 81, n.4.
page 95 note 3 (1960) S.L.J.R. 5, Imam, P.J.
page 95 note 4 See p. 93, n. 1.
page 95 note 5 Owners of Sagias 22 and 23 Argi v. Sudan Government and Others, NPC-CS-99–1952; ACAPP-31–1955 (both unreported), A. Bedri, P.J.
page 96 note 1 Hayes, J., was the sole Arbitrator. See (1960) S.L.J.R. 336–347. “An Arbitration between the Kababish and the Howawir tribes, the Award” (No. KND-HC-GEN-7–1–8–1; (January 1953—) Howawir were represented by Advocate Zarroug and the Kababish by Advocate Mahgoub.
page 96 note 2 Mutual humanity and charity.
page 96 note 3 Arabic plural of wasm—mark.
page 96 note 4 K. O’C. Hayes, 1960 (S.L.J.R.) pp. 336–338; “Dar rights among the Nomads: An Arbitral Award-Introduction”.
page 96 note 5 (1960) S.L.J.R. 343, point 9, also p. 344.
page 98 note 1 S.4.
page 99 note 1 (1932–1940) S.L.R. p. 200.
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