Muhena v Registrar of Titles and Another (Civil Appeal No. 20 of 1948) [1949] EACA 19 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

### Before SIR GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

#### MUHENA BIN SAID, Appellant (Original Appellant).

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# (1) THE REGISTRAR OF TITLES, (2) THE LAND OFFICER, Respondents (Original Respondents)

### Civil Appeal No. 20 of 1948

(Appeal from decision of H. M. High Court of Tanganyika— Mark Wilson, Ag. C. J.)

Registrar of Land Titles—Land acquired near Mwanza in 1890—Tanganyika Land Registry Ordinance, 1923—Nature of Tenure—Whether title by adverse possession.

The appellant derived his title to land near Mwanza through an Arab in 1890 prior to the German Administration of Tanganyika. He applied to be registered as owner in fee simple. In 1931 the Land Officer, Acting Registrar of Titles wrote to appellant's advocate that "the claim to freehold by your client is admitted".

Held (5-11-49).—(1) The presumption is that the first Arab occupant entered peaceably and that the chief or tribal representative could only grant him a tenure recognized by customary law.

(2) Though the Land Ordinance of 1923 declaring lands of Tanganyika to be public lands has a proviso that nothing shall affect any title or interest in land lawfully acquired before then, the original tribal customs had no such conception as ownership by an individual in fee simple.

The Tanganyika Government has a reversionary interest in all lands except where title is obtained by adverse possession for 30 years before 1923.

(4) There was no evidence to satisfy the Registrar that the appellant's occupation was other than the admitted general permissive occupation by all inhabitants of the territory<br>and the appellant failed to discharge the onus of proof of 30 years possession adverse to the German and British Governments.

(5) The letter of 1931 did not operate as an estoppel against the Registrar.

Cases referred to: Manning v. Commissioner of Titles (1890), 15 A. C. 195; Robert-<br>son v. The Minister of Pensions (1948), 2 A. E. R. 767; Secretary of State v. Charlesworth Pilling & Co. (1901), A. C. 373; Abdulrasool v. Muguluwa (1914), 6 E. A. L. R. 31; Amodu Tijani v. Secretary, Southern Nigeria (1921), 2 A. C. 405.

Vellani for the Appellant.

Sir James Henry, Crown Counsel (Tanganyika) for the Respondents.

JUDGMENT (delivered by SIR GRAHAM PAUL, C. J. (Tanganyika)).—The real issues raised in this appeal are in my view very much simpler than would appear from the nature of the arguments submitted for the appellant. These issues arise out of an application by the appellant to be registered in the Land Registry as the owner in fee simple of certain land in or near Mwanza. The application was one for First Registration and was necessarily made under section 5 of the Land Registry Ordinance (Cap. 70). By that section the duty of investigating the title of any such applicant is laid upon the Registrar under the Ordinance. There is a right of appeal to the High Court against his decision but in the first place it is the Registrar and no one else who must investigate and decide on the title of the applicant. The Registrar cannot delegate that duty of investigation to the<br>Land Officer or anyone else. To my mind it seems ridiculous to suggest that the Registrar can be precluded from making his statutory investigation and his own statutory decision because of something said, written or decided by a Land Officer, present or past. There is provision for the Land Officer being given an opportunity of being heard by the Registrar in regard to every application for First Registration. That does not, in my view, mean that in the absence of opposition by the

Land Officer, or even if he is present and consents to the registration applied for, the Registrar must grant the application. Nothing of the kind. The Registrar must himself investigate and decide for himself on the applicant's claim for registration. The case of Manning v. Commissioner of Titles (15 A. C. 195) seems to me to support that view.

The letter written by a former Land Officer in 1931 does not, and cannot, bind the Registrar investigating in 1947 an application for first registration not made till 1946. Nor does it prevent the Land Officer of 1947 from opposing the application made in 1946 if from his consideration of the information then available he considers it his duty to do so. Throughout the arguments before us I have been quite unable to see what the letter of 1931 can possibly have to do with the 1946 application, or with the Registrar's consideration and decision about it. I can find no substance whatever in the plea of estoppel. Indeed the question whether the present Land Officer was or was not estopped in any way by the letter of his 1931 predecessor seems to me quite irrelevant to the question before this Court.

For this part of his case the appellant's advocate relied upon the decision in Robertson v. The Minister of Pensions (1948) 2 A. E. R. 767, but in my view that decision has no application whatever to the present case for two reasons. First, because of the highly special relationship between the War Office and a serving soldier. There is no such relationship between the Land Officer and the appellant. Second, Robertson's case was concerned only with two branches of the Executive whereas here the appellant is in effect seeking to oust in favour of an Executive Officer, the Land Officer, the jurisdiction which the Legislature has positively, specifically and exclusively given to a special judicial tribunal, namely the Registrar, who has to investigate and decide such questions in the manner prescribed.

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That preliminary point out of the way, the only question left of any importance is whether this Court can properly hold that the Registrar was wrong in dismissing the application on its merits, or lack of merits.

By reason of section 11 of Cap. 70 and section 23 (3) of Cap. 68 (as amended by Ordinances Nos. 6 and 5 of 1935 respectively) the main question before the Registrar boiled down to this: Has the applicant proved 30 years adverse possesssion prior to 26th January, 1923? The Registrar answered that question in the negative and on appeal his decision was upheld by the High Court.

It seems to me, examining the evidence even in the light of the exhaustive argument of appellant's advocate, that possession has been proved for the requisite period but that the obviously difficult thing is to prove adverse possession as against the German or British Governments who undoubtedly as a matter of policy permitted the inhabitants generally of the Territory to use land for their reasonable requirements of residence and sustenance without any special grant to any individuals. To satisfy the Registrar that the possession was adverse in this case evidence would in my view be required of something definite in the occupation of the applicant or his predecessors to take that occupation out of the category of the admitted general permissive occupation by all the inhabitants of the Territory. There is nothing so far as I can see in the evidence to show that the occupation by the applicant or his predecessors was in any way special, or different from that of any other inhabitant of the territory, or inconsistent with it being just the general permissive occupation enjoyed by all inhabitants.

I reject as completely untenable the suggestion that a handful of visiting Arabs-not conquering but visiting-brought with them, to govern their rights in or over the land at Mwanza, the Mohammedan law. I am quite unable to see how this handful of visiting strangers in a strange land could foist their land laws and customs upon the land and base their claims to or over the land upon Mohammedan customary law. The only material customary law affecting this land or rights to or over this land clearly was that of the aboriginal tribe and I am certainly not persuaded that this custom of the aboriginal tribe had any such

conception as the ownership of land by an individual in fee simple freehold. Indeed 1 am satisfied that such a conception was entirely unknown to the aboriginal tribe. I most certainly am not prepared to say that the Registrar was wrong in rejecting any such contention.

I am of opinion that the Registrar was right in holding as he did that the applicant had failed to discharge the onus which was clearly upon him of proof of 30 years of possession of the land in question adverse to the German and British Governments.

I would therefore dismiss the appeal.

EDWARDS, C. J. (Uganda).—I have had the advantage of perusing the judgment just delivered by the learned Acting President with the terms of which I respectfully agree. I would merely add a few observations of my own. The letter of 10th November, 1931, from the Acting Land Officer was, in my view, no more than an intimation that he did not propose to contest the claim to freehold; but this did not absolve the Registrar of Titles, when the matter came before him, from investigating the matter fully and arriving at his own decision even although no argument to the contrary was adduced by the Land Officer. It might be argued that the letter of 10th November, 1931, estopped the Crown. As to this, the short answer, in my view, is that the recipient of that letter must be regarded as accepting that letter in full knowledge that he would have to satisfy the Registrar of Titles under section 10 (3) Land Registry Ordinance. I also agree that the question of proof of adverse possession was one of fact for the Registrar of Titles and, like the High Court of Tanganyika, I find it impossible to hold that the Registrar erred in finding that the appellant had not discharged the onus of proof. As the appellant was unable to prove *adverse* possession for 30 years prior to 26th January, 1923, he was bound to fail. With regard to section 2 of the Land Registry (Amendment) Ordinance, 1935, this has to be read together with section 23 (3) (b) Land Ordinance as amended by section 4, Land (Amendment) Ordinance, 1935. I agree that this appeal should be dismissed.

SIR JOHN GRAY, C. J. (Zanzibar).—The evidence shows that the appellant derived his title from an Arab, who was in occupation of the land in question in this case in or about 1890, prior to the Germans taking over the administration of what is now Tanganyika Territory. There is no evidence as to how he came into possession of the land. It was situated in the territory of the Sukuma within a few miles of the headquarters of the then Chief of that tribe. In the absence of any evidence to the contrary the presumption is that the first Arab occupant entered into the land peaceably under some sort of arrangement with the Chief or representative member of the tribe. That being so, the chief or representative could give him no better title to the land than he possessed and could only grant him a tenure recognized by the customary law of the tribe. I do not propose to<br>speculate as to what is the land tenure of the Sukuma tribe, but I am satisfied that the customary law of that tribe, like that of most African tribes in the interior of the continent, had no conception of freehold tenure such as is known to English law or the analogous individual ownership known to Muslim law.

As said in Secretary of State v. Charlesworth Pilling and Co. (1901) A. C. 373 the lex loci rei sitæ must govern dealings in land. That was a case of acquisition by a European of land in territory to which Muslim law applied. As said by Lord Hobhouse in delivering the judgment of the Privy Council in that case (at p. 384), it is impossible to say "that the moment a plot of land is purchased by an Englishman, it is stamped with the same character and is attended by the same incidents that would belong to it if it were actually transferred to England and surrounded by other English land, and to say that his neighbours, who may or may not be British subjects, must have their rights and liabilities governed by its fictitious and not its actual situation". Similar reasoning clearly applies to the present case. The chief or representatives of the tribe knew nothing of freehold and clearly could convey to the first Arab grantee nothing more than an interest in land of a nature which was recognized by their own customary law. See the decision of this Court in Abdulrasool v. Muguluwa (1914) 6 E. A. L. R. 31. The right may have been something in the nature of a right of exclusive occupation but it was terminable nevertheless in certain specified circumstances. It was certainly not freehold and the tribe or its representative had something in the nature of a reversionary interest in the land which was to take effect when the occupation was lawfully terminated. In the words of Lord Haldane, in *Amodu Tijani v. Secretary*, Southern Nigeria (1921) 2 A. C. at p. 405 there was a radical or final title and consequently a legal estate vested in the tribe or its representative, which was qualified only by the rights of beneficial user of the occupant for the time being.

In my opinion the only grounds upon which the appellant could possibly - succeed are that he and his predecessors in title have been in adverse possession of the land for a period of 30 years prior to 26th January, 1923, or unless the Tanganyika Government is estopped from denying his right to a freehold title. Section 1 of the German Imperial Ordinance of 26th November, 1895, enacted that except where claims to ownership and to real rights in land could be proved by private persons and certain other specified persons all land in what was then German East Africa was to be deemed to be unowned and to be regarded as Crown Land and the ownership to such land was vested in the Reich. The Land Ordinance of 1923 declares the whole of the lands of Tanganyika Territory, whether occupied or unoccupied, to be public lands, with a proviso that nothing shall effect the validity of any title to or interest in land lawfully acquired before 26th January, 1923. Later sections of the same Ordinance bestow upon the Governor certain powers of disposition in regard to public lands. Perusal of the Ordinance shows that it nowhere makes use of the word "freehold" and that it contemplates future acquisitions of land only by way of lease or in the form of a right of occupancy. The proviso to section 3 recognizes the validity of past grants of freehold estates, but the Ordinance nowhere empowers the making of future grants of that nature. Section 23 provides for the obtaining of an absolute title by adverse possession. Otherwise, all lands are public lands in which the Tanganyika Government has a reversionary interest resembling that of the native authority before the advent of European rule.

In order, therefore, to succeed in respect of his claim to adverse possession the appellant must show user of the land by himself or his predecessors in occupancy in a manner which is inconsistent with the enjoyment by the Tanganyika Government of its interest in such land as public land. All the acts alleged by him are consistent with his right of occupancy and none of them are inconsistent with the rights of the Tanganyika Government in such land as public land. I am therefore of opinion that the claim of adverse possession fails.

The appellant, however, alleges that the Government is estopped from denying his freehold title by reason of a letter which the Acting Land Officer, who was also Registrar of Titles, wrote on 10th November, 1931, to the appellant's advocate saying that "the claim to freehold by your client is admitted".

Now if we look at the Land Registry Ordinance, 1923, it is clear, as said by Lord Hobhouse in *Manning v. Commissioner of Titles* (1890) 15 A. C. 195 in dealing with the Western Australian Transfer of Land Act, 1874, that the Registrar of Titles is not a mere machine for registration in a case where there is no opposition to the application for registration of title, Section 9 of the Tanganyika Ordinance provides for the issue of notices and advertisements prior to the investigation by the Registrar. Section 10 distinctly provides that there shall be an investigation and lays down rules regarding the admissibility of certain kinds of evidence during the course of the investigation. As section 10 (3) shows, it is only "after investigation" that the Registrar is empowered to register the title or dismiss the application. Turning to section 57 (a), we find that the High Court is empowered to rectify the register (inter alia) "where an entry in the register ... is made under a mistake of fact or law".

It seems clear to me that, even if the signatory of the letter of 10th November, 1931, had written that letter in his capacity of Registrar of Titles and had subsequently been called upon to hold an investigation under section 10 of the Land Registry Ordinance, he could not possibly have been held to have been bound by that letter. In this connexion I would refer to a passage in Lord Hobhouse's judgment in the already cited case of Manning $v$ . Commissioner of Titles. In that case the Commissioner informed the appellant's solicitors "that he considered the title fairly made out", and invited them to take steps for an investigation of a nature similar to that prescribed in section 10 of the Tanganyika Ordinance. As a result of certain evidence received at that investigation he held that the appellant had failed to prove his title and rejected his application for registration. With regard to those facts Lord Hobhouse said (at p. $201$ ): —

"It appears to their Lordships that the investigations cannot be complete until it is seen what the notices produce. They may not necessarily produce caveats, for those can only be lodged by persons making claims on their own behalf, but they may produce information showing that the registration of the applicant would not be right. If a certificate of title is issued in error, the Commissioner may, under section 117, take steps to cancel it. Supposing, then, before certificate, the Commissioner finds, either from fresh information or on reconsideration, that he is in error, what is he to do?

The appellant's counsel contend that, if he has issued notices and there is no caveat, he must give the certificate and then take steps to cancel it. It seems to their Lordships that such a course is not rational, and is not obligatory under the Act, but that the proper course is to refuse the Certificate.'

Very clearly therefore the Registrar of Titles was in no way bound by the letter which his predecessor wrote 18 years ago and notwithstanding that letter he could dismiss the application.

The argument that section 115 of the Indian Evidence Act should be applied $\mathcal{O}(\mathcal{A})$ to this case on the ground that the appellant had acted in reliance on that letter failed to convince either the Registrar or the learned Acting Chief Justice in the Court below. It also fails to convince me.

I would therefore dismiss this appeal.