Gondoram and Another v Gibson (C.A. 18/1930.) [1930] EACA 36 (1 January 1930)

#### COURT OF APPEAL FOR EASTERN AFRICA.

### Before SIR CHARLES GRIFFIN, C. J. (Uganda), PICKERING, C. J. (Zanzibar), and SHERIDAN, C. J. (Tanganyika).

## SHAMDAS GONDORAM AND ANOTHER $(Appellants)$ (Original Plaintiffs)

# DAVID GIBSON as Administrator of the Estate of LEVI MWANGOMA (Respondent) (Original Defendant).

### C. A. $18/1930$ .

Validity, as an Agreement or Licence, of a document which had been termed an Indenture.

Held: -(Pickering, C. J., dissenting): -That the word Indenture had been used without any clear appreciation of its implications in English law, and that as an agreement was sufficient to create in<br>binding form the relationship sought to be established between the parties the document was not ineffectual in the absence of registration and seal.

Burke for appellant.

A. V. Patel for respondent. $\Box$

SHERIDAN, C. J.—The decision in this appeal turns mainly on whether the learned Judge correctly decided that an agreement entered into between the parties was invalid by reason of its not having been registered under the Registration of Titles Ordinance, Cap. 142 of the Laws of Kenya. If the document creates an interest in land, being for a term exceeding twelve months, registration is essential to its validity. The document purports to confer a full irrevocable sole and exclusive licence and authority to quarry stone and generally to do such acts as are necessary for the quarrying and carrying away of the stones quarried. The term provided is two years and the rent Sh. 130 per month. $\mathbf{A}$ default clause appears providing "If any default is made as to the payment of monthly rents as above agreed, the proprietor shall give two months' notice terminating this agreement. If, however, all the rent in arrears is paid within the period under notice aforesaid this licence shall renew and its forfeiture shall be waived."

The plaintiff on the ground that the defendant broke his contract by refusing him permission to enter on the land for the purposes set out in the document brought an action for damages, and this suit was dismissed on the ground that it was based on a document invalid for want of registration.

The learned Judge held that although the document was referred to as a licence it was clearly a lease as it gave irrevocable sole and exclusive authority to work the quarries, to erect and build huts on the land, and was for a term exceeding twelve But these characteristics do not constitute the documonths. ment a lease as distinct from a licence. The document clearly shows that what the plaintiff obtained was a licence to enter upon the land for the limited purpose of quarrying stones, to do anything necessarily incidental to that purpose, and to remove the stones for disposal after they were quarried. The character of the document in question is best illustrated by a reference to the case of Heap v. Hartley, L. R. 42 Ch. D. (1889), 461, in the Judgment of Corrox, L. J., at page 468. The learned Lord Justice expresses himself: "With regard to the word 'licence', there is some little ambiguity. It is however well defined in the case of Muskett $v$ . Hill and I prefer stating it in the language there cited by CHIEF JUSTICE TINDALL to giving my own. It is thus stated: "A dispensation or licence properly passes no interest but only makes an action lawful which without it had been unlawful, but a licence to hunt in a man's park and carry away the deer killed to his own use, to cut down a tree in a man's ground and carry it away the next day after to his own use, are licences as to the acts of hunting and cutting down; but as to carrying away the deer killed and the tree cut down they are grants'. So here a licence to enter upon a canal and take away the ice is a mere licence; and the right of carrying it away is a grant of the ice so to be carried away.'

Now it seems to me that this case illustrates that the document in the case under consideration amounted to a licence to quarry the stones and the right of carrying them away when quarried, in other words a licence coupled with a grant. Counsel for the respondent has stressed that in as much as land as defined in Cap. 142 includes "things embedded or rooted in the earth", the right in this case must be deemed to include an interest in land and that consequently whether the document be regarded as a lease or licence its validity depends on its being registered. I think this argument is more specious than sound, for just as in the case of the man who had permission to cut and carry away the trees not having any property in the trees until they were cut down, the plaintiff in the present case had no property in the stones until they had been quarried from the earth. I therefore find that the document in this case did not require registration for its validity. The next point I will deal with is whether the plaintiffs were prohibited from bringing an action owing to their not having registered under the Registration of Business Names Ordinance. This is a point not covered by the Judgment and its determination would necessitate the taking of evidence. For this reason I am of opinion that it cannot be considered in this appeal. The next point raised before us was that even if the document be regarded as a licence coupled with a grant it is still invalid because of its not being under seal. I do not think that this contention can be supported.

The case is distinguishable from the case of a parol licence to come on to land and there make a watercourse to flow on to the lands of the licensee. In such a case it was said by Alderson, B., that there was no valid grant of the watercourse (Wood v. Leadbitter, 13 M. and W. at page 846). In the case of Lowe v. Adams, 2 Ch. D (1901), 598, where the licensee had a right to shoot and carry away the game when shot, that is a licence coupled with a grant, I cannot find any suggestion in the report that the agreement was under seal. This point, in $mv$ opinion, fails.

On the point as to whether the document is an Indenture I have had the advantage of reading what the learned Chief Justice of Uganda has said and I agree with it. I am glad to be able to agree on the point of Indenture as the point was not taken in the Supreme Court, Mr. Patel having referred to the case of Stynn v. Simpson, 8 E. A. L. R., p. 164, only in support of a contention that the document had to be under seal.

I would allow the appeal with costs and send the case back to the Supreme Court for trial declaring that the document is not ineffectual in the absense of registration and seal.

SIR CHARLES GRIFFIN, C. J.-I have had the advantage of reading the Judgment of the learned Chief Justice of Tanganyika with which I am in agreement.

I wish to add a few words on the subject of the word "indenture" upon which we heard counsel to-day. The use of the word in the document setting out the agreement between the parties in this case has created some difficulty, inasmuch as the document was not signed, sealed and delivered as a deed, but merely signed. In fact it purported to be signed and no This fact seems to differentiate it from $Stynn v$ . Simpson, more. 8 E. A. L. R., page 164, in which the document before the Court purported to be signed, sealed and delivered and was declared invalid by the learned Chief Justice of Kenya, because it was merely signed and was not also sealed and delivered, as it purported to be.

In my opinion the word "indenture" has been used at the beginning of the agreement in this case, per incuriam and without any clear appreciation of its implications in English law. An ordinary agreement was quite sufficient to create in a binding form the relationship sought to be established between the parties, and to hold the document invalid because being described as an indenture it has not been executed as a deed, seems to me to be unduly technical. As an agreement-which in fact it was-it clearly sets out the intentions of the parties and they should abide by it.

PICKERING, C. J.-In my opinion this appeal can be disposed of shortly. It came before this Court for a consideration of a ruling of the Supreme Court of Kenva that the document drawn up between the parties to this appeal constituted a lease and was ineffectual by reason of the provisions of section 32 of the Registration of Titles Ordinance (Cap. 142). Looking at that section it appears that the question upon which the learned Judge decided the matter before him could have been more aptly expressed if the issue were put in the form of a question as to whether the indenture sued upon did or did not purport to pass any land or any interest in land. Now in my opinion the document adduced did not purport to pass an interest in land. Firstly words were used for granting a licence to enter upon the respondent's lands and there to dig for and quarry stone, and to do all things reasonably necessary for the effective enjoyment of such licence; then, following such words, a grant of the quarried stone was set out. It was further contended on the part of the respondent that an interest consisting of a licence and a grant of stone can only be conferred by deed. The document upon which the appellant relies opens with the words "This Indenture" and is drawn with some elaboration. $\mathbf{It}$ concludes however with the words "In witness whereof the parties hereto have hereunto set their hands the day and year first above written". The document was signed only. The question arises whether the parties set out to effect their purpose by deed. A similar case was argued before BARTH, C. J., in the case of Stynn v. Simpson (8 E. A. L. R., 164). In the course of his Judgment the learned Judge said: "It is not open in my opinion to say that it is perfectly true that the document was not sealed but that it was signed and is therefore sufficient for all purposes under the applied Indian law. In my opinion if the document purports to be a deed and is not sealed then it is of no effect". I respectfully concur with that statement of the law. The report of the case gives no guide as to what words or passages the learned Judge had in mind when he ruled that the document before him purported to be a deed, and we have not had the advantage of seeing the document. Now the parties to the document before this Court have described it as an An Indenture is a deed and to be effective as an Indenture. Indenture must be sealed. Does the document of the 25th June. 1929, purport to be an Indenture? The words used are the words of the parties. Is the fact that the document was signed only and not sealed good ground for saying that when the parties used the words "This Indenture" they did not mean "This Indenture "? I feel it difficult to go to that length. In my view the parties should be taken to have set out to effect their purpose by the execution of an Indenture. Whether an Indenture or a deed poll or a written document would suffice to effect their purpose is irrelevent. I am aware that the Judicial Committee in the course of their decision in the case of

Stephens $v$ . Allen said: "In the present case the negligence is alleged to be due to the ignorance of the provisions of an Act of Parliament. It may well be that in Nairobi this Act (the English Companies Act) has practically never been heard of in judicial proceedings ". I would suggest that weight ought not to be given to similar considerations in this case. When parties use the word "Indenture" in my opinion they should be taken to understand what the word connotes; no application has been made for the rectification of the document by substituting the word agreement for the word they used. For these reasons I am of opinion that the document purports to be an Indenture but has not been duly executed and for that reason should be held to be inoperative.