Bwana & Bwanahave v Ibrahim & Abdulrehman (Civil Appeal No. 5 of 1947) [1948] EACA 3 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR G. GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and BOURKE, J. (Kenya)

(1) ATHMAN BWANA and (2) ALIM BWANAHAVE, Appellants (Original $Defendants)$

(1) HAJI ABDULLA IBRAHIM and (2) HUSEIN HAJI ABDULREHMAN, Respondents (Original Plaintiffs)

Civil Appeal No. 5 of 1947

(Appeal from decision of H. M. Supreme Court of Kenya).

Limitations Ordinance, 1934—Adverse possession—Onus of proof.

The plaintiffs claimed possession of a plot of land from the defendants. The defendants pleaded that they had been in possession for over 12 years and were entitled to remain by virtue of sections 10 and 29 of the Limitations Ordinance, 1934. Judgment was given for the plaintiffs and the defendants appealed.

Held (4-2-48).—That possession for 12 years could not, per se, make operative the Limitations Ordinance, 1934. There must be proof of adverse possession causing a right of action to arise.

Budhdeo for the Appellants.

Hassan for the Respondents.

SIR G., GRAHAM PAUL, C. J.—The respondents in this appeal were the plaintiffs in a suit in the Supreme Court of Kenya. They claimed possession of a certain plot of land from the defendants, the present appellants, and mesne profits. They obtained judgment as prayed with costs. From that judgment the<br>defendants appealed to this Court. No evidence had been taken in the Court below, the case having been decided as a matter of law on the pleadings. It appeared to this Court that until the facts as to possession by the defendants were elicited the questions of law involved were hypothetical. This Court therefore made an order remitting the case to the Court below "for a report with findings of fact arrived at either upon evidence or upon agreement of parties showing what precisely the position is as regards the allegation in the statement of defence that defendants have been in possession for over 12 years and with particulars as to the nature and extent of possession duration, etc.".

Following upon that order the learned Judge in the Court below took evidence and submitted a report to this Court embodying the record of the evidence taken and the findings of the learned Judge on that evidence. At the conclusion of his report the learned Judge said: "Having considered all the evidence I have come to the conclusion that the defendants have only established possession for the past seven years". That conclusion of fact has been challenged by the appellants' advocate in this Court, and following the ruling already given by this Court we have to come to a conclusion on the issue of fact before considering the questions of law which have been raised.

Before we deal with the issues of fact there is a preliminary point of law to be discussed. When the learned Judge took the evidence he ruled against the submission of the defendants-appellants' advocate that as the plaintiffs-respondents said that the defendants were trespassers therefore the onus was on them to prove this and that they must begin, and the defendants-appellants were ordered to begin which they did, the view of the learned Judge being that it was for the defendants to prove all the elements of their possession.

Upon that point it seems to me that the position in the Court below when the point was raised was not the same as if it were the ordinary trial of the suit that was in progress. This Court had called for a report only as regards the allegation in the statement of defence that the defendants had been in possession of the land in question. Obviously the defendants knew better than the plaintiffs what facts they founded upon as establishing the possession they claimed and under the order of this Court logic and common sense would seem to me to require that the defendants should begin.

Even if the question had arisen at the ordinary trial of the suit instead of at the specific inquiry by order of this Court I think the position would have been the same. The plaintiffs pleaded expressly that they were the registered owners of this land and that allegation was not denied by the defendants in their statement of defence either specifically or by necessary implication. The defendants' case on their statement of defence was, by virtue of Order VIII Rule 5 of the Civil Procedure Rules, an admission that the plaintiffs were registered. owners of the land and a plea that by virtue of the Limitations Ordinance, 1934. section 10, the plaintiffs' claim to bring this section was barred and their right. and title were extinguished by virtue of section 29 of that Ordinance.

These sections of the Limitation Ordinance are as follows:

"10. No person shall make an entry or distress, or bring a suit to recover any land or rent, but within twelve years next after the time at which the right to make such entry or distress, or to bring such suit, shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims, then within twelve years. next after the time at which the right to make such entry or distress, or to bring such suit shall have first accrued to the person making or bringing. the same".

"29. At the determination of the period limited by this part to any person for making an entry or distress, or bringing any suit, the right and title of such person to the land or rent for the recovery whereof such entry, distress, or suit respectively might have been made or brought within such period shall be extinguished."

My view of these sections—and I think it is obvious besides being well. settled—is that the mere fact that for 12 years there has been no suit brought is not enough to make the sections operative. Before they become operative it must be shown that by adverse possession a cause of action had arisen, otherwise how could the owner bring a suit? The defendants pleaded that they had been in such adverse possession for the necessary period but before these sections<br>become operative against the registered title of the plaintiffs the adverse possession had to be *proved*. On the pleadings therefore it seems to me that the *onus* of proof was upon the defendants. In my view also it is from that angle that the material issue of fact must be examined both by the Court below and by this Court.

I now come to the issue of fact, and the questions are whether on appeal this Court can hold on the record of the evidence that the learned Judge was wrong in his finding of fact and if so what is the correct finding of fact on the evidence.

In his report the learned Judge has examined the evidence exhaustively and carefully. I have examined the record of the evidence with care in the light of the analysis of that evidence by the appellants' advocate in this Court and in the result I am certainly not prepared to say that the learned Judge was wrong in his conclusion.

$\alpha$

First it may be well to define what it was that the defendants had to prove, and on that point the well-settled law is clearly stated at page 699 of volume 20 of Halsbury's Laws of England (Hailsham Edition) as follows: -

"Mere going out of possession is not enough; in order that the statute may operate there must be not going out of possession on the part of the owner, but also exclusive possession for the statutory period by someone else to be protected."

My study of the record of the evidence has made it impossible for me to hold, contrary to the view of the learned Judge, that the defendants were in exclusive possession of this land for the statutory period of 12 years and I am therefore of opinion that section 10 and 29 of the Limitations Ordinance do not apply to bar the remedy or to extinguish the right and title of the registered owners, the respondents in this appeal.

For these reasons I consider that the Court below was right in giving judgment for the plaintiffs on 2nd December, 1946, and I would dismiss the appeal with costs to the respondents, to include the costs of the inquiry by the learned Judge into the facts of the defendants' alleged possession.

EDWARDS, C. J.—I agree with the judgment just delivered and I have nothing to add.

BOURKE, J.-I also agree.