Subhi v Miskiria (Civil Appeal No. 88 of 1954) [1955] EACA 302 (1 January 1955)

## **SOLUCT: OF APPEAL FOR EASTERN AFRICA**

the anti-contract of the first state of the state of the state of the state of the state of the state of the st

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SAID BIN SULTAN BIN MOHAMED EL SUBHI, Appellant (Original $Defendant)$

## JOKHA BINTI SULTAN BIN SALUM EL MISKIRIA, Respondent (Original $Plaintiff$

## Civil Appeal No. 88 of 1954

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Wakf-Land-Adverse possession-Effect of non-registration of agreement for sale of land-Registration of Documents Decree (Cap. 111), section 4, as amended by Decree No. 10 of 1944—Transfer of Property Decree, section 54-Wakf Property Decree (Cap. 34), section 16-Damages-Burden of proof—When in issue. $\mathcal{A} = \mathcal{A} \cup \mathcal{A}$

In a claim for a declaration as to the ownership of a certain *shamba*, damages and consequential relief, the respondent/plaintiff (inter alia) relied on the fact of long possession thereof. The appellant/defendant averred that his mother had bought the *shamba* in 1921, and had, in 1924, dedicated it as Wakf to her children, grandchildren and their issue, and that he was one of the said children. His claim was supported by an unregistered agreement for sale of the shamba and a registered Wakf deed.

The trial Judge relied on section 4 of the Registration of Documents Decree, as amended by Decree No. 10 of 1944 which provides: "No document executed after the 1st day of January, 1920, or decree or order of any court (including a certificate of sale) or award, passed or made on or after the 1st day of January, 1945, purporting or operating to create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent to, in, or over immoveable property in Zanzibar, except such documents as are of a temporary nature, shall affect any immoveable property comprised therein or be received as evidence in any civil proceedings of any transaction affecting that property unless it has been $\mathcal{A} = \left( \mathcal{A} \mathcal{A} \right)^{\frac{1}{2}} \mathcal{A}^{\frac{1}{2}}$ $\mathcal{L} \in \mathcal{L}(\mathcal{L})$ registered as hereinafter prescribed."

It was (inter alia) argued for the appellant (1) that in spite of the fact that the sale had not been completed by registered conveyance, possession could be<br>retained by the purchaser, notwithstanding section 54 of the Transfer of Property Decree, against the purchaser's vendor or against a subsequent purchaser from him under a registered deed provided that it was shown that the purchaser had paid the full purchase money and had obtained possession of the property under the agreement, reliance being placed, inter alia, on the decision in Walsh v. Lonsdale; and (2) that if the Wakf was valid, the respondent could not acquire title thereto by adverse possession or prescription. $\mathcal{L}^{\text{max}}(\mathcal{L}) = \mathcal{L}^{\text{max}}(\mathcal{L})$

The Wakf Property Decree, section 16, provides: " . . no title to any Wakf property shall as and from the date of this Decree be conferred upon any person or persons by reason of adverse possession thereof or prescription." If the interest

Section 54 of the Transfer of Property Decree, inter alia, provides: Such transfer, in the case of tangible, immoveable property of the value of Rs. 100 and upwards... can only be made by a registered instrument." In the instant case the sale was for Rs. $3,000$ .

In the plaint it was alleged that the damages amounted to Sh. 10,000. The defence put the claim for damages in issue. The respondent/plaintiff gave no evidence in support of the estimate of damages. The appellant/defendant admitted having received a sum of Sh. 9,000 from certain produce taken from the *shamba*.

Held $(18-6-55)$ .—(1) Where a sale of land has not been completed by registration, where so required, the purchaser is not the legal owner and cannot, therefore, validly dedicate the said property as Wakf.

(2) The equity of *Walsh v. Lonsdale* is excluded by the statutory requirement of the Registration of Documents Decree, as amended.

(3) Semble-If a Wakf is valid, title cannot be obtained thereto by adverse possession or prescription.

(4) Except where the quantum of damages is conceded and the only issue is that of liability, the question of the amount of damages is always in issue, and is a matter for proof by the plaintiff.

Appeal dismissed. Decree confirmed save in the substitution of Sh, 9,000 for Sh, 10,000. as the amount of damages.

Cases referred to: Bilali bin Hana Amri and others v. Administrator-General and<br>others (1942) 7 Z. L. R. 188; Baswantapa Shidapa v. Ranu and another (1884) I. L. R. 9<br>Bom. 86; Walsh v. Lonsdale (1882) L. R. 21 Ch. D. 9; Ariff v

Rahim for appellant.

v

M. C. Patel for respondent.

SIR NEWNHAM WORLEY (Vice-President).—This is an appeal from a judgment and decree of His Highness the Sultan's High Court for Zanzibar sitting at Pemba, by which it was declared that the appellant (defendant in the court below) had no right, title or interest in a shamba known as Shamba Ndagaa and that this shamba was the property of the respondent (plaintiff in the court below). It was further decreed that the appellant should pay Sh. 10,000 by way of damages as the value of cloves picked by the appellant on the shamba in suit, and also the costs of the action. Lastly, a perpetual injunction was decreed restraining the appellant from entering into the said shamba. The appellant appeals against the whole of this decision.

The material facts are that the *shamba* in question was held in partnership by two brothers, Abdulla bin Mohamed Subhi and Sultan bin Mohamed. On the death of the former, the Administrator-General divided the shamba, the southern portion going to Sultan bin Mohamed, who was the father of the appellant. The respondent was the wife, or perhaps I should say a wife, of Sultan bin Mohamed: she married him about the year 1923.

There were disagreements and respondent left her husband and subsequently successfully sued him in the Kadhi's Court for maintenance. Judgment was passed on 19th August, 1924, and a number of applications for execution were made. As a result Sultan bin Mohamed was imprisoned in the Civil Prison from 19th June to 1st December, 1928. The respondent also attached six pieces of shamba belonging (or said to belong) to Sultan including the one now in suit. In respect of two of these, one Raya binti Said (another wife of Sultan) unsuccessfully applied to raise the attachment: but no application was made either by Sultan or by Raya to raise the attachment on Shamba Ndagaa. On 15th October, 1928, this shamba was put up for sale at auction under the court order and was bought by the respondent. The sale was confirmed on 19th December, 1928, and a sale certificate issued. On 8th January, 1929, respondent was put in possession by the Court

**Bailiff.** The *shamba* was subsequently sold by the respondent to an Indian but she repurchased it on 21st July, 1931, and claims to have been in undisturbed possession ever since then until about August, 1955, when the present appellant (who is the son of Sultan and Raya) entered and picked the clove crop.

Sultan bin Mohamed died in June, 1949, and his estate was administered by the Administrator-General. The Shamba Ndagaa was not included among the *shambas* reported as belonging to his estate by the present appellant.

The respondent's case rested on the sale certificate issued by the court and the subsequent delivery of possession by the Court Bailiff; and also upon the fact of long possession, this latter being supported by evidence that between the years 1931 and 1953 she had on several occasions obtained weeding loans from the Clove Growers' Association for, *inter alia*, the *Shamba Ndagaa*. There was also evidence that on several occasions she had leased the crop and that no one had objected to her lessees picking the crop.

The appellant's case rested upon a claim that his mother, Raya binti Said, had purchased the *shamba* from her husband, Sultan, for Rs. 3,000 on 13th June, 1921, and on 30th November, 1924, had dedicated it as Wakf to her children, grandchildren and their issue. This claim was supported by the production of two documents, an unregistered agreement for sale (Ex. 2) and a registered Wakf deed (Ex. 1): and also by oral evidence that the shamba was well known during Sultan's lifetime to be Wakf property and was leased to various people as such property. This oral evidence was disbelieved by the learned trial Judge. The agreement for sale (Ex. 2) declares that Sultan bin Mohamed had sold to his wife, Raya binti Said, the shamba in suit "by an out-and-out sale for Rs. 3,000 in discharge of the money due by him to her" as the value of crops received during the period he was managing her property. It then adds: "This is a provisional writing during life and death time until he would execute in her favour a registered deed in compliance with registration terms and other than these". No conveyance was ever registered. The Wakf deed was registered under the Registration of Deeds Decree on 2nd December, 1924, and under the Wakf Property Decree (Cap. 34 of the Laws of Zanzibar, 1934) on 14th February, 1947.

The learned trial Judge relied on section 4 of the Registration of Documents Decree (Cap. 111 of the Laws of Zanzibar, 1934) as amended by Decree No. 10 of 1944 which reads: $-$

"4. No document executed after the 1st day of January, 1920, or decree or order of any court (including a certificate of sale) or award, passed or made on or after the 1st day of January, 1945, purporting or operating to create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent to, in, or over immoveable property in Zanzibar, except such documents as are of a testamentary nature, shall affect any immoveable property comprised therein or be received as evidence in any civil proceedings of any transaction affecting that property unless it has been registered as hereinafter prescribed."

He found as a fact that Raya binti Said was never in possession of the suit shamba and that the Wakf was therefore void.

The grounds of appeal against this decision are based some on fact and some on law. As to fact, it is contended—

$(a)$ that the learned Judge ought to have looked at the agreement for sale (Ex. 2) "for the purpose of determining the character of the possession of Raya and of the appellant" and ought to have held that the defect, if any, in the appellant's title was cured or perfected by more than 12 years' adverse possession; and $\mathcal{L}^{\mathcal{A}}$ $\hat{A}^{\dagger} \hat{A}^{\dagger}$ $A \sim$

$(b)$ that the learned Judge ought to have held that the Shamba Ndagaa was in: possession of Sultan who held it as *Mutiwalla* under the Wakf deed and, after his death, in the possession of the appellant in like capacity.

In my view these grounds of appeal both fail. I have already referred to the learned trial Judge's rejection of the evidence of the appellant and his witnesses. based in part at least on their demeanour and nothing has been said in this appeal. to lead me to think that his conclusion on this evidence was wrong, or that his. finding that Raya binti Said was never in fact in possession of the property was. wrong. In addition to the facts already set out relating to the sale by the court of this property and delivery of possession to the respondent, there are the significant facts that the Wakf deed was not registered as such until 1947 and the completeabsence of any evidence that the beneficiaries of the Wakf, i.e. the children of Raya, ever enjoyed any profits of the property.

The grounds of law raised by the appellant are these—

- (a) that if the Wakf was valid, the respondent cannot acquire an adverse title: to the Wakf property by reason of adverse possession thereof or prescription: see the Wakf Property Decree, section 16, and Bilali bin Hana-Amri and others v. Administrator-General and others (1942) 7 Z. L. R. 188: - (b) that if the Wakf was valid the failure of Raya, the *Wakeif*, or her husband, the *Mutiwalla*, to lodge any objection to sale by the court was. immaterial: see Chitaly-Indian Code of Civil Procedure 5th (1951): Edition, Volume 2, page 2463, note 15, and Baswantapa Shidapa v. Ranuand another (1884) I. L. R. 9 Bom, 86; - (c) that in spite of the fact that the sale to Raya was not completed by a registered conveyance, she was entitled notwithstanding the provisions of<br>of section 54 of the Transfer of Property Decree, to retain possession. against her vendor or against a subsequent purchaser from him under a registered deed provided it was shown that she had paid the full purchasemoney and had obtained possession of the property under the agreement.

In support of this last argument, Mr. Rahim referred to a 1923 Edition of Mulla's Commentary on the Indian Registration Act, page 182 and to Indian decisions cited there which applied to India (where the relevant legislation is the same as in Zanzibar) the principle of the decision in Walsh v. Lonsdale (1882) L. R. 21 Ch. D.9. Mr. Rahim would have done better to have consulted later works which are also in the Library of this Court, e.g. Mulla's Transfer of Property Act 2nd (1936) Edition, page 265. Two decisions of the Privy Council are there cited, which have made it quite clear that the equity of Walsh v. Lons*dale* was excluded by the statutory requirements of registration prescribed both in the Transfer of Property Act and the Registration Act. The two cases cited are Ariff v. Jadunath (1931) 58 I. A. 91 and Mian Pir Bux v. Sardar Mahomed Tahar (1934) 61 I. A. 388. The cases relied on by Mr. Rahim are therefore no longer good law and I cannot refrain from saying that I consider Mr. Rahim showed less than proper diligence in presenting to this Court a legal submission based on an out-ofdate text book.

That really disposes of the whole of Mr. Rahim's legal submissions, for the first two depend upon the assumption of a valid Wakf. But if Raya never legally owned the property, the sale to her never having been completed, she could not validly dedicate the property as Wakf: see Mulla's Principles of Mahomedan Law, 13th (1950) Edition, page 162. Granted the assumption, I would accept Mr. Rahim's proposition (a) as correct: I am not convinced that his proposition (b): is correct but it is not necessary now to express any opinion on this.

My conclusion therefore is that the High Court was correct in holding that the alleged Wakf was invalid, that the appellant had no right, title or interest in the suit *shamba* and in declaring that it was the property of the respondent.

It remains for me to consider the appeal against the quantum of damages.

In her plaint, the respondent estimated the clove crop of the *shamba* for the season 1953/1954 to be worth Sh. 25,000 and alleged that up to the date of filing the suit (15th October, 1953) the appellant had picked and carried away Sh. 10,000 worth. In his written statement of defence the appellant put in issue the claim for damages. He denied that he had picked any cloves during the current season but admitted having "leased" the major portion of the crop to one Rashid for Sh. 14,000. The respondent gave no evidence in support of her estimate of damages, except to say that she had "seen the crop and it was a large one". The appellant supplied this omission by giving evidence of the lease of the crop to Rashid for Sh. 14,000, but he added that he had settled with Rashid for Sh. 9,000 "because" the cloves were bad".

The learned trial Judge dealt with this issue by saying "The question of damages has not been challenged by the defence" and awarded the respondent the Sh. 10,000 claimed. With respect, this was a wrong approach. Except where the quantum is conceded and the only issue is liability, the question of the amount of damages is always in issue and the plaintiff must prove. In the instant case, the respondent did not prove her damages but the learned Judge was entitled to take into consideration the admission made by the appellant. On this footing the proper amount to be awarded the plaintiff/respondent was Sh. 9,000. I would therefore vary the judgment appealed from by substituting Sh. 9,000 for Sh. 10,000 as the amount of damages, but in all other respects I would confirm the decree and dismiss this appeal. The respondent should have her costs here.

SIR BARCLAY NIHILL (President).—I agree with the judgment delivered by the learned Vice-President and have nothing to add. An order will be made in the terms he has proposed.

SIR KENNETH O'CONNOR, C. J.—I concur and have nothing to add.

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