Khamis v Kirobe and Others (Civil Appeal No. 18 of 1954) [1950] EACA 195 (1 January 1950)

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Newnham Worley (President), Sir Ronald Sinclair (Vice-President) and BRIGGS, Justice of Appeal

ALI BIN KHAMIS, as administrator of the estate of KHAMIS BIN SULEMAN. Deceased, Appellant (Original Defendant)

### (1) SALIM BIN KHAMIS KIROBE, (2) JUMA BIN ALI, (3) JUMA BIN ALI, as administrators of the estate of MWANA JUMA BINTI SULEMAN, Deceased

Respondents (Original Plaintiffs)

Civil Appeal No. 18 of 1954

(Appeal from the decision of H. M. Supreme Court of Kenya, Windham, J.)

Partition—All persons interested entitled to be heard on application for partition or sale—Partition Acts, 1868 and 1876—East African Court of Appeal Rules, 1954, rule 74 (5).

This was an appeal by leave from an order of the Supreme Court made in a partition suit. The land concerned had, some time before 1931, been vested in the four sons and nine daughters of the original owner but at the time of the appeal all except one of the children were believed to be dead. The proceedings were instituted by three persons who claimed an interest in the land and the defendants were the surviving child of the original owner and four others who also claimed an interest. An order was made ultimately by consent of all the parties before the Court. The appellant, who was a son of one of the deceased sons of the original owner, applied to be joined as a defendant as administrator *de bonis non* of his father's estate. He was joined and then applied to have the order set aside and a submission by the plaintiffs that the Court had no jurisdiction to set aside the order was upheld and the application was dismissed.

It was impossible, from the material before the Court, to say definitely who the individuals were who now had an interest in the land or even how the parties themselves claimed to have an interest.

Held (11-6-56).—While a partition suit may be commenced without all interested persons being made parties, it is essential that at the earliest possible stage it should be ascertained with precision who are interested in the property and in what shares and, on all matters into which inquiry must be made, all co-owners are entitled to be heard.

Appeal allowed, suit remitted to the Supreme Court for rehearing.

Cases referred to: Patel v. Patel, 6 E. A. C. A. 48; Waite v. Bingley, 21 Ch. D. 674;<br>Devonport v. King, 49 L. T. 92; Buckingham v. Sellick, (1870) 22 L. T. 370; Mildmay v.<br>Quicke, 20 Eq. 537; Gilbert v. Smith, 2 Ch. D. 686; Sy (1943) 1 A. E. R. 108; Malkarjun v. Narhari, 27 I. A. 216; Arnison v. Smith, 40 Ch. D. 567.

# Khanna for appellant.

Doshi for respondents.

BRIGGS, J. A.—This is an appeal by leave from an order of the Supreme Court of Kenya made at Mombasa in a partition suit.

An African coast Muslim named Suleman bin Jabu died many years ago possessed of a plot of land at Mombasa some 12 acres in extent and now known as Plot No. 2 of Section 1, Mkomani. His four sons and nine daughters inherited the land, the sons each taking a $2/17$ th share and the daughters each a $1/17$ share. They were duly registered as proprietors at some time prior to 1931 and all but one of them are now believed to be dead. The survivor is named Ramthan bin Suleman.

In 1951 the three respondents and one Mariam binti Athman sued Ramthan and four other defendants by way of partition action, but asking for sale of the land and distribution of the proceeds in lieu of partition. The first plaintiff married a daughter of Ali, son of Suleman, and inherited a small share in the land from her on her death. Juma, who wrongly appears as both second and third plaintiffs, is a son of Ali. He apparently claims part of Ali's share by direct inheritance and also claims as administrator of the estate of Mwana Juma, a deceased daughter of Suleman. It seems, however, that Juma is also administrator of Ali's estate, though he does not purport to sue as such. I am unable, on the inadequate and disorganized material before us, to discover who Mariam binti Athman is or how her claim arises. She may be a daughter of one of Suleman's deceased daughters or a widow of a deceased son.

Ramthan, who I have mentioned, is the first defendant. The second defendant, Suleman bin Khamis, is a son of one of Suleman's deceased sons. The third and fourth defendants were daughters, and the fifth was a granddaughter of Suleman. It is in dispute whether the fifth defendant died before action brought. If not, she died soon after. We are told that the third and fourth defendants have died since then. No attempt has been made to join any legal personal representative in these cases, or to appoint any representative *ad litem*.

The estates of some four or five of the deceased children of Suleman are, or have at one time, been represented by an administrator, in whom their shares presumably vested. We have no information as to the state of administration of these estates and inadequate information as to their beneficiaries. The estates of the other deceased children of Suleman are apparently not being administered. Their shares in the land may have passed by direct inheritance. We have no proper information as to their heirs, the dates of their deaths, or any other matters relevant to the issue, "Who now owns the land?".

This chaotic situation is unfortunately of only too common occurrence, and I feel bound to put on record my opinion that there is something gravely wrong, either with the law, or with the administration of the law, or with both, if such a state of affairs cannot be prevented. It can now be remedied only with great difficulty and at disproportionately heavy cost. The real remedy lies in insisting that on the death of any owner of property his estate shall be administered in accordance with law and with reasonable speed, and that land registers should thus record reasonably up-to-date facts instead of mere ancient history. This, however, is an administrative problem. It is made much more comlpex and difficult by the parallel systems of direct inheritance and devolution through a legal personal representative which govern succession to the estates of African coast Muslims.

The first four defendants filed a defence stating that Suleman and his descendants had been living on the land for about a hundred years. They opposed a sale and offered to purchase the shares of the plaintiffs at a valuation. This defence was dated 29th October, 1951.

It seems that the parties then negotiated in a way which was sensible so far as it went, but entirely ignored the requirements of the Partition Acts, 1868 and 1876, which apply in Kenya as statutes of general application. *Patel v. Patel*. 6 E. A. C. A. 48. At the trial on 25th March, 1952, an order was made, and, although the order does not so state, it is not now disputed that it was made by consent of all parties then before the Court (the fifth defendant was absent and the order states that she was dead). This order provides primarily that defendants one to four shall buy the plaintiffs' shares of the land at a valuation within a certain time and on certain terms, and, had it stopped there, it might have been unexceptionable, but it went much further. It also "ordered", by which presumably is meant "declared", that the shares of the plaintiffs in the land together amount to 12/85ths "of the total area and that the plaintiffs' interests include a stone house" on the land. It then went on to order that if the purchase by defendants one to four was not duly carried through the whole of the land should be sold "by public auction by direction and on terms and conditions to be fixed by this Honourable Court; in which event both the parties hereof to get their respective costs from the proceeds of the sale". [sic] Other details are not now important. No provision was made for any inquiries or further consideration and the parties were not even given liberty to apply, but the terms of the order of sale no doubt give this within a limited range by necessary implication.

The valuations were made by the end of April and presumably were filed at once. Defendants one to four had then either to object to the valuations or to deposit the necessary sum in Court within one month. They failed to do either. The order, so far as it related to a purchase of the plaintiffs' shares by defendants one to four, then ceased to have effect and thereafter it operated, or purported to operate, only as an order for sale of the land on certain terms. It is important to note (i) that the order purported to bind the estate of the fifth defendant, (ii) that it declared in a manner binding on all the defendants the etxent of the plaintiffs' shares in the land, (iii) that it appears to give, at least as against the defendants, some special rights to the plaintiffs in a "stone house," which presumably must have been a fixture and belonged to all the owners of the land for their respective rights and interests, (iv) that it ignored the question of possible incumbrances, (v) that it ignored a right of way alleged to exist over the land, (vi) that it was made with knowledge that persons other than the parties were interested in the land, and probably with knowledge that their interests amounted to more than a moiety, (vii) that it purported to saddle these other persons with a share of the costs, *inter alia*, of the abortive agreement for sale by the plaintiffs to defendants one to four.

On 13th June, 1952, the solicitors for the appellant, who is a son of Khamis, one of the deceased sons of Suleman, wrote to the Registrar to protest about all this and ask for delay pending joinder of all necessary parties. The appellant then applied for and obtained a grant of letters of administration de bonis non to the estate of Khamis and applied on 1st September, 1952, to be joined as a defendant as his administrator. The application was heard on 19th September and was resisted by the plaintiffs. In a lengthy argument Mr. Doshi contended that he had a vested right to a sale under the order of 25th March, 1952, and, in effect, that no other co-owner could be heard to question that right or that order. Mr. Doshi's attitude has since changed, but it is material to note what it was then. At the same hearing he applied that a final order for sale should be made. Mr. Joshi, for the defendants one to four, agreed with the appellant that he should be joined and that the order for sale was irregular. The learned Judge joined the appellant, refused to make a final order for sale and suggested that Mr. Doshi should apply for directions as to service on, or advertisements to, other co-owners.

On 19th June, 1953, the matter again came before the Court. Mr. Doshi still contended that he had a binding order for sale and that it was only necessary

to advertise so as to enable other co-owners to share in the proceeds of sale. He claimed that it was not possible to ascertain who all the interested parties were, and proposed to serve only the Public Trustee as administrator of one estate. This application was allowed, but without prejudice to an intended application by the appellant to set aside the order of 25th March, 1952, and proceedings thereunder. This application was duly made and was heard on 25th August, 1953. The first four defendants supported the appellant. Mr. Doshi opposed the application. He had, however, lost confidence in his earlier argument that the order for sale was binding on the appellant and other co-owners, and suggested that the appellant's remedy was to object to sale when application was made for the final order of sale. He submitted that there was no jurisdiction to set aside the order of 25th March, 1953. The learned Judge accepted this view and dismissed the application. The appellant appealed by leave to this Court. Defendants one to four also sought leave to appeal, but have not done so, and have not been made respondents. This may cause a little difficulty, to which I shall return.

The appellant's principal complaint against the proceedings taken under the order of 25th March, 1952, was of a misdescription of the property in the advertisements to co-owners. On the view I take of the case little turns on this point, but I may remark that even now proper steps have not yet been taken to bring in the remaining co-owners. On the major issue, the learned Judge's views were summarized in the following passage from his judgment.

"The Court's jurisdiction is fixed at the outset of the case; it either has or has not got jurisdiction to entertain the case. It either has jurisdiction to make or to refuse the order sought, or it has jurisdiction to do neither. In the present case the partition Acts gave this Court jurisdiction to entertain the application for a provisional sale order. If the Court should make an order at the conclusion of the hearing which was unjustified by the evidence and arguments adduced or upon other legal grounds (which evidence and arguments it only heard at all by virtue of its jurisdiction to hear the case) such an order would not be without jurisdiction, it would merely be a bad order.

The line between orders of Court which are merely irregular and those which should on proper proceedings for that purpose be treated as nullities cannot be drawn with precision; but where a special jurisdiction is created by statute certain principles may, I think, be laid down. The rule *audi alteram partem* is generally absolute. If, as in partition actions, it is relaxed by statute ex necessitate rei, the Court must observe strictly the limits of its powers to dispense with the attendance of parties otherwise necessary, and if it oversteps those limits it will exceed the jurisdiction conferred. In this case the limits laid down by statute and caselaw were wholly ignored. A partition suit may under the Acts be commenced without all interested persons being parties, but it is essential that at the earliest possible stage it should be ascertained with precision who are entitled to, or interested in, the property and in what shares. It must similarly then be ascertained, if in any way in doubt, what is the property in question and what incumbrances affect it. As regards the latter, separate inquiries may be needed as to priorities, and accounts may have to be taken. It must be ascertained whether incumbrancers will consent to partition or sale, since partition is impossible without such consent, and sale will be on different conditions according as consent is, or is not, given. Next it must be ascertained, usually by inquiry, whether partition or sale will be more beneficial (which means financially beneficial, sentimental considerations being disregarded) to the general body of co-owners. On . all these matters all co-owners are entitled to be heard. In consequence the preliminary decree must, unless all co-owners are already before the Court, either

direct service on the remainder of them of notice of the preliminary decree (section 9 of the Act of 1868) or dispense with service but order advertisement (section 3 of the Act of 1876). Persons so served or claiming in consequence of the advertisements are entitled to be heard in all respects as if parties to the action. It is only those as against whom an order is made to dispense with service, and who do not come in and claim, whose rights as owners may then be affected by an order made in their absence. See 21 Halsbury, 1st ed. Art. "Partition", Part IV, p. 834, et segg.; Waite v. Bingley, 21 Ch. D. 674; Devonport v. King, 49 L. T. 92; Buckingham v. Sellick, (1870) 22 L. T. 370. In the last-named case the Vice-Chancellor was of opinion that where section 9 comes into play there is "no jurisdiction" to make an order for sale at the first hearing, but such order could only be made on further consideration. In Mildmay v. Quicke, 20 Eq. 537, Sir George Jessel; M. R., confirmed this view, though he said that the words "further consideration". need not have their strict technical sense. Gilbert v. Smith, 2 Ch. D. 686, and Sykes v. Schofield, 14 Ch. D. 629, also confirm this view. The only vestige of authority to the contrary is in *Peters* $v$ , *Bacon*, 8 Eq. 125, and *Powell* $v$ . *Powell*, 10 Ch. App. 130. In the former case an order for sale had been made in the absence of some co-owners. The plaintiffs applied to proceed to sale before advertising under section 9. This was refused, but leave was given to advertise and to apply to proceed to sale if the absent parties did not come in in response to the advertisements. In *Powell* $v$ . *Powell*, the usual inquiries were ordered, but a contract for sale was entered into before further consideration and without notice to two co-owners who were out of the jurisdiction. Although subsequently a certificate was made that sale was beneficial, the Vice-Chancellor considered that the sale could not stand, and this was supported on appeal. Lord Cairns said that the words "on further consideration" meant "on any consideration after the inquiries have been made". He also said that the question whether sale or partition will be more beneficial cannot be decided until all parties interested are before the Court. The later of these two cases was decided in 1874 and they do not at all affect my opinion that it is now quite improper to order sale at the first hearing, unless all parties interested are at that stage before the Court.

On the appeal to us Mr. Khanna relied on *Craig v. Kanseen*, (1943) 1 A. E. R. 108, as showing that where an order is improperly made without serving a person known to be affected by it and having a statutory right to be served before it can be made, the order is a nullity in the sense that it must be set aside ex debito justitiae, and that in cases of nullity procedure is unimportant, since the Court has inherent jurisdiction to set aside its own order. I accept these principles, as laid down by Lord Greene, M. R., at p. 113.

"Those cases appear to me to establish that an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae to have set aside. So far as the procedure for having it set aside is concerned, it seems to me that the Court in its inherent jurisdiction can set aside its own order; and that an appeal from the order is not necessary. I say nothing on the question whether an appeal from the order, assuming that the appeal is made in proper time, would not be competent.

The question we have to deal with is whether the admitted failure to serve the summons upon which the order in this case was based was a mere irregularity, or whether it was something worse, which would give the defendant the right to have the order set aside. In my opinion, it is beyond question that failure to serve process where service of process is required, is a failure which goes to the root of our conceptions of the proper procedure in litigation. Apart from proper $ex$ parte proceedings, the idea that an order can validly be made against a man who has had no notification of any

intention to apply for it is one which has never been adopted in England. To say that an order of that kind is to be treated as a mere irregularity, and not something which is affected by a fundamental vice, is an argument which, in my opinion, cannot be sustained."

As regards the procedure adopted by the appellant this decision is apparently confirmed by Malkarjun v. Narhari, 27 I. A. 216, which seems to show that where an error is a mere irregularity an appeal may be necessary, but if it renders the order a nullity this is not the case.

The provision in section 9 of the Act of 1868 that "it shall not be competent to any defendant in the suit to object for want of parties" does not in any way diminish the right of a co-owner who is not a party to be heard before any order prejudicial to his proprietory rights can be made. It is true that he may be debarred in practice if an order has been made to dispense with service on him, if proper advertisements were published, and if he has failed to see them or omitted to claim. But that is not the case here. Even if the appellant were able on application for a final order successfully to oppose a sale under the order of 25th March, 1952, that order is in other respects gravely prejudicial to his rights. It should not have been made at all, and could not lawfully be made until he had been given the opportunity to object to what was intended. I have no doubt that on his application the Supreme Court should have set it aside.

Mr. Doshi went so far before us as to admit that, if the order of 25th March, 1952, was an unconditional or absolute order for sale, it was a nullity; but he contended that it had not that effect. I am unable to follow this argument. The order became an absolute order for sale as soon as the provisions for sale of the plaintiffs' interests to defendants one to four became a dead letter, and it stands as an absolute order for sale, until declared to be a nullity.

We were agreed at the close of the hearing that the appeal must be allowed. but the precise form of the order has presented a little difficulty. Only the first three plaintiffs were in form made respondents to the appeal. Mr. Doshi, who appeared in the action for all four plaintiffs and on the appeal for the three respondents, did not refer to this point, but inquiries made by us since the hearing indicate that this was a mere oversight. Instructions have been taken from the fourth plaintiff and she has now agreed and undertaken by her solicitors to be bound by any order which this Court may make on the appeal as if she had been a party throughout. Since Rule 74(5) does not apply in her case, I think it is necessary that she should now be joined as a respondent and that the final order of this Court should so provide, and should recite her undertaking to abide by the order. None of the defendants was made a respondent, but since they have supported the appellant since his first appearance it may, I think be assumed that the order in his favour will be for their benefit generally, notwithstanding that certain parts of it may be to their detriment. I think therefore that the Court may act in their absence under rule 74 (5) and will not be restricted as regards details of the order to be made.

I think the plaint, the defence of the first four defendants, the proceedings taken to join the appellant as a defendant, and his defence should stand, but that all other proceedings taken in the suit are invalidated by the inherent vice of the order of 25th March, 1952, and should be set aside. As regards the pleadings, it seems probable that the rule in Arnison v. Smith, 40 Ch. D. 567, will apply in a partition action and the surviving plaintiffs can continue the suit against<br>the surviving defendants. It must then be noted that a party ceases<br>to be a party on death, and either service or advertisement will be required in order to bind his or her estate in the suit. The proceedings in the

suit should be amended so as to show that the surviving parties are the only parties to the suit, and that Juma bin Ali is a single person suing "in his personal capacity and as administrator", etc. As regards the future conduct of the suit, it appears that the next step will be to set it down for hearing, when an order will be made for inquiries, and directions can then be given as to service or advertisements. In this connexion I think it right to say that in my view all known co-owners within the jurisdiction ought in these cases to be served individually. The purpose of advertisements is to provide for persons who cannot reasonably be served, not to save the trouble of serving persons who should be served.

We have been asked by counsel to make here and now a full order for accounts and inquiries, and counsel have gone so far as to agree provisionally upon the inquiries which should be held; but I think we ought not to do this Defendants one to four are not parties to this appeal, and they (or the survivors of them) are entitled to be heard as to the form of the preliminary decree. In addition we should be usurping the functions of the Supreme Court, in which is vested the discretion to decide what inquiries and what, if any, accounts are necessary in each case. Lastly, I am of opinion that the parties may well desire, and probably would be well advised, to produce at the hearing as much evidence as may be available to them on such matters as the right of way, the mosque, the cemetery and the family pedigree of the issue of Suleman, with dates and particulars of devolution of the estates of deceased issue. If this is done the preparation of a draft preliminary decree will be greatly facilitated.

I would therefore order that the appeal be allowed and that the ruling and order of the Supreme Court dated 14th September, 1953, be set aside. After the provisions regarding parties to which I have referred, I would further order that all proceedings in the suit other than the plaint, the proceedings to join the appellant as a defendant, the defences and the affidavits filed be set aside, that the parties be at liberty to apply to the Supreme Court to amend the subsisting proceedings and otherwise as they may be advised, and that the suit be reheard with a view to the passing of a preliminary decree in the form usual in partition actions. I should explain that some of the affidavits contain a good deal of useful miscellaneous information, and parties may desire to read some of them on subsequent applications, so I think they should not be treated as struck off the file.

The costs of the appeal must be paid by the respondents personally to the appellant, and the respondents personally must also pay the appellant's costs of the application to join him as a party, which they improperly resisted, and his costs of all subsequent proceedings set aside by this order. There will be no costs, save as aforesaid, of the affidavits left on the file for future use. The costs of the pleadings themselves will be reserved to the Supreme Court. Save as aforesaid, the plaintiffs and defendants will bear their own costs of all proceedings in the Supreme Court. The effect of this order will be that it will not be possible to charge any costs of the suit against proceeds of sale of the land, except the costs of the pleadings. The appellant will have recourse for his solicitor and client costs to the estate of Khamis, but Juma bin Ali will not have recourse to the estate of Mwana Juma.

#### WORLEY, President.—I agree.

SINCLAIR, Vice-President.—I also agree.