Mtashiwa v Mtashiwa (Civil Appeal No. 87 of 1955) [1950] EACA 52 (1 January 1950)

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

Before Sir Newnham Worley (President), BACON, Justice of Appeal and WINDHAM, Chief Justice (Zanzibar)

MJASIRI WA MTASHIWA, Appellant (Original Defendant)

## ASMAN WA MTASHIWA, Respondent (Original Plaintiff)

## Civil Appeal No. 87 of 1955

(Appeal from the decision of H. M. High Court of Zanzibar, Greene, J.)

Limitation—Purchase of land by A with money belonging to B—Conveyance in A's name—Limitation Decree, articles 91, 116 and 142.

In 1944 the appellant purchased a house and took the conveyance in his own name although the purchase money was provided by his brother, the respondent. In proceedings before the First Class Subordinate Court for a declaration that the respondent was the owner of the house the Resident Magistrate found that there was evidence that the purchase money was provided by the respondent and that he did not ascertain until December, 1948, the fraudulent act of his brother. The proceedings were commenced in July, 1953. The Subordinate Court held that the proceedings were not barred on the ground that the relevant article of the Limitation Decree (Cap. 11) was article 116 which prescribes six years as the period of limitation and embraces every "suit for which no period of limitation is provided elsewhere". On first appeal the appellant argued that the relevant article was article 91 which prescribes three years as the period of limitation of any suit "to set aside a decree obtained by fraud, or for other relief on the ground of fraud". This was rejected by the High Court which upheld the Magistrate's decision, but on the ground that the relevant article was article 142 which prescribes 12 years as the period in the case of any suit "for possession of immovable property or any interest therein not hereby otherwise specially provided for".

*Held* (22-12-55).—The relevant article was article 91 and the suit was accordingly barred.

Appeal allowed. No order for costs in any of the proceedings as the appellant succeeded only by reliance on a limitation provision which applied by reason solely of his own fraudulent act.

Case referred to: Chander Nath Chowdhry v. Tirthanand Thakoor, (1898) 1. L. R. 3 Cal. 504.

P. S. Talati for appellant.

Samaja for respondent.

JUDGMENT (prepared by Bacon, J. A.).—This is a second appeal from a Decree of the High Court of Her Britannic Majesty's Court of Zanzibar passed on appeal from the First Class Subordinate Court.

The respondent (the original plaintiff) succeeded in both Courts below in his claim for a declaration that he is the owner of House No. $16/2$ situate at Kwabijoha and for an order directing the appellant to convey that property to him. There was also a counterclaim by the appellant for a sum of money alleged to be held by the respondent to the appellant's use which was dismissed at the trial and has not formed part of the subject-matter of either appeal.

The dispute as to the beneficial ownership of the house concerned arose in the following circumstances. The parties are brothers. The house was purchased in 1944, was conveyed to the appellant in his name, and has remained in his. name ever since. The respondent, however, alleges that the purchase price was provided by him out of his own moneys, and, as was found by the learned Resident Magistrate, there is ample evidence in support of that allegation. The Magistrate also found that the respondent did not discover until December, 1948, the fraudulent act on the part of the appellant, namely the execution of the conveyance in favour of the latter in his own name. The respondent instituted these proceedings in July, 1953.

On those findings of fact the only question which has emerged for the decision of this Court is whether the respondent's claim is barred by the Limitation Decree (Cap. 11).

The learned Resident Magistrate held that it was not so barred, apparently -although he did not in his judgment expressly say so-on the footing that the relevant article of the Schedule to that Decree is article 116 which prescribes six years as the period of limitation and embraces every "suit for which no period of limitation is provided elsewhere in this Schedule".

The learned Judge on the first appeal took the view that the suit was "certainly a suit for declaration but it is also an implied suit for possession", and accordingly rejected the appellant's new argument before him that the relevant article of the Schedule is article 91 and accepted the respondent's contention that it is article 142 which applies, with the result that the respondent's claim was not barred.

Article 91 prescribes three years as the period of limitation of any suit "to set aside a decree obtained by fraud, or for other relief on the ground of fraud".

Article 142, a residuary provision at the end of Part VI of the Schedule, prescribes 12 years as the period in the case of any suit "for possession of immovable property or any interest therein not hereby otherwise specially provided for".

Thus, for different reasons, each Court below held that the Limitation Decree did not prevent the respondent from avoiding the result of the appellant's fraudulent act as so found.

The question for us is this: on the facts as found in the trial Court and as accepted in the High Court, which of the three above-mentioned articles applies? Counsel for the appellant relied before us on article 91 in the first place and alternatively on article 116. Counsel for the respondent continued to rely on article 142.

In our view it is unnecessary to determine whether this suit should be held to be one "for possession of immovable property" within article 142, for we think that it clearly comes within the second limb of article 91, being a suit based on the sole ground of fraud. It follows that the general residuary article 116 does not apply either. The learned Judge on first appeal rejected article 91 because he thought that "the ground in question is merely a part of the machinery by which defendant has kept plaintiff out of possession of the property", citing as his authority Chander Nath Chowdhry v. Tirthanand Thakoor, (1898) I. L. R. 3 Cal. 504. This we think is hardly apposite; the passage cited from the judgment must be read in relation to the facts of that case, which indeed disclosed an involved course of dishonest activity forming part of the whole scheme whereby the plaintiff who became entitled to the property by succession was kept out of

possession. Such a state of facts has little relation to the instant case, where the only issue was whether the respondent had been deprived of legal ownership by a single act of fraud and nothing else.

Accordingly we feel constrained, though with some regret, to allow this appeal. The order of the High Court dismissing the first appeal with costs, and the Decree passed by the trial Court in so far as it decreed the respondentplaintiff's claim, are both set aside, and we direct that there be entered in the Subordinate Court a decree dismissing the plaintiff's claim.

There will be no order on costs of any of these proceedings for the reasons that the now successful appellant has in the course of them shifted his ground and in the event succeeds only by reliance upon a limitation provision which applies in the instant case by reason solely of his own fraudulent act.