Sudi v Kahara (Civil Suit No. 1063 of 1951) [1953] EACA 45 (1 January 1953)

## ORIGINAL CIVIL

## Before WINDHAM, J.

### BURAKA BIN SUDI, Plaintiff

$\mathbf{v}$

# WILFRED KABUE KAHARA, Defendant

## Civil Suit No. 1063 of 1951

Jurisdiction—African Courts Ordinance, 1951, section 12 (2) (b)—Suit for payment of price of piece of land and damages for breach of contract-Whether Supreme Court has jurisdiction to hear claim for damages for breach of contract to sell land situate within the native lands.

The plaintiff, an African, alleged payment of the purchase price of a piece of land to the defendant, another African, and outlay preparing to build thereon; but that the defendant had not transferred the ownership of the land as agreed or had no title to do so. The plaintiff claimed repayment of the purchase price and damages for breach of contract. Counsel for the plaintiff conceded that. in view of the provisions of section $12(2)(b)$ of the African Courts Ordinance, 1951, the land, being wholly situate within the native lands, the suit for repayment of the purchase price could not be commenced in any court in the Colony, other than an African Court having jurisdiction, but contended that the Supreme Court had jurisdiction to hear the claim for damages.

Held (3-7-52).—A claim for damages for breach of contract to sell land situate within native Lands as defined by the Native Lands Trust Ordinance, 1939, must be considered as<br>"civil proceedings in respect of immovable property" within the meaning of section 12 (2) (b) of the African Courts Ordinance, 1951.

The Supreme Court had no jurisdiction. The suit was dismissed with costs.

### Bhandari for plaintiff.

#### Holland for defendant.

JUDGMENT.—A preliminary point has been raised on behalf of the defendant whether this Court has jurisdiction to try this case, in view of the provisions of section 12 (2) (b) of the African Courts Ordinance, 1951, which substantially reproduces section 11 (2) of the now repealed Native Tribunals Ordinance, 1930, and which provides—"Notwithstanding anything to the contrary in any law for the time being in force in the Colony, no civil proceedings in respect of $\ldots$ (b) immovable property situate within the native lands as defined in the Native Lands Trust Ordinance shall, unless a district officer otherwise directs, be commenced by any African in any court of the Colony other than an African Court having jurisdiction."

It is conceded by learned Counsel for the plaintiff— $(a)$ that the immovable property with which this action is directly or indirectly concerned is situate within "native lands" as above defined, and $(b)$ that no district officer has "otherwise directed". He contends, however, that the present action is not one in respect of immovable property. The action in fact is for damages incurred by the plaintiff through breach by the defendant of a contract to sell to him the immovable property concerned. Jurisdiction is determined on the basis of the allegations in the plaint, and not upon those in the statement of defence, but it may be convenient to record that the defence in this case, in brief, is that the

defendant never agreed to sell his own land to the plaintiff, having no land of his own, but merely undertook to find some third person who would be willing to sell a piece of land to the plaintiff, for which purpose the plaintiff paid him (the defendant) Sh. 1,700 which the defendant was ready to refund since negotiations with a particular third person had fallen through. In short he denied any breach of contract.

Now it seems to me that a claim for damages for breach of contract to sell land must be considered as "civil proceedings in respect of immovable property" within the meaning of section 12 (2) (b). Learned Counsel for the plaintiff argues that the only kind of claim that would properly come within those words would be a claim to ownership of immovable property, or at most a claim to recover<br>possession of it. But if this had been intended, I think that there would have been used some words as "civil proceedings in which a declaration as to the ownership of immovable property is sought, or for the recovery of possession of immovable property", and not the words "in respect of", which must surely have a wider meaning. Of course a case is conceivable where immovable property is so indirectly or so incidentally connected with the cause of action that the proceedings could not reasonably be said to be "in respect of" that property. But it is not for this Court to lay down a general definition of that phrase. All that this Court has to decide is whether the proceedings in this particular case can properly be said to be "in respect of" immovable property. I think they can. The plaint alleges and is founded on the breach of a contract to sell land. Whether there was such contract, and whether it was broken, are, therefore, matters which must be proved, and it seems to me, therefore, very difficult to say that the action is not in respect of that land. Any narrower interpretation of the words "in respect of" would limit it to actions where the actual right to ownership or to possession of the land was the point at issue; and as I have said, had this been the intention of the legislature I think more specific words would have been used.

Looking at the matter from a rather broader standpoint I reach the same result. In an action of this nature it would be impossible to avoid investigation into the native law and custom regarding whether breach of a contract to sell land (if such were proved) would under that law or custom give rise to a claim for damages at all. The question whether the defendant was in fact, the owner of the land which he is alleged to have promised to sell to the plaintiff might also be relevant to the determination of the issue whether he was likely or not to have promised so to sell it. In short, this seems to me to be a type of case which is more suitable for trial by a native tribunal than by this Court, and accordingly the type of case which is probably contemplated by section 12 (2) (b). And, though, as I have said, the question whether this Court has jurisdiction is determined on the plaint rather than on the statement of defence, it is significant to note that one of the allegations in the defence is that "the plaintiff had undertaken to pay the balance of Sh. 100 after the usual ceremony had been performed in accordance with the Kikuyu law and custom". The ascertainment of such law and custom would be eminently a matter for an African Court rather than this Court.

For these reasons I hold that this Court has no jurisdiction to try this case, which is accordingly dismissed with costs.