Zalkha bint Mohamed v. Juma Mazige Civ. App. 262-M-69; 20/1/70;

Zalkha bint Mohamed v. Juma Mazige Civ. App. 262-M-69; 20/1/70;

The respondent (original plaintiff), was an African resident of Nansio, Ukerewe District. The appellant, an Arab woman was of the same area. The plaintiff was in possession of house No. 45

on an unsurveyed plot at Nasio until June, 1966 when the defendant got an eviction order in her favour against one Salum Mazige Malima and obtained possession of the property. Where upon the plaintiff claimed a declaration that he is the owner of the house No. 45 and Shs. 1,000/- damages for wrongful eviction. The defendant claimed that she had purchased the house at an auction sale in pursuance of an order in civil case No. 426 of 1957 and that she had obtained judgment and order for vacant possession in civil case No. 432 of 1965; that the plaintiff never claimed ownership of the plot in the aforesaid cases and therefore was estopped from doing so. The defendant also pleaded res judicata in the alternative. At the trial the following issues were agreed: - “(1) was the Plaintiff owner of he unsurveyed plot No. 45 situated at Nansio Ukerewe – during the month of June, 1966? (2) If so was the said property on Plot 45 sold in execution of decree in Civil Case Number 426/57 between Lake Motors Limited decree holders – and Salkha Mazige? (3) If the said property was sold was the defendant the auction purchaser in the Civil Case of 426/57? (4) If so was it done in pursuance to a Court order in the said Civil Case 432/651 (5) Is the Plaintiff stopped in law to claim the ownership now? (6) Who were the owners of the said plot in 1966? (7) What are the reliefs that the parties are entitled to?” “The trial court found that the sale of the disputed house was completed on 16^th April, 1963 and that he plaintiff should, under Article 11 A of the Law of Limitation Act, have filed objection within a year. The trial court alternatively found that according to the Code of Civil Procedure, the sale became absolute after the approved bidder paid the last installment. The trial court noted that the disputed property the subject matter of the suit had been sold by the defendant to a third party and commented that such circumstances “make a court of law decline to reverse the first sale as it would no longer be possible to attain restitution itegrum.” Thus the trial court impliedly resolved all issues except the last in favour of the defendant. However, it went on the decide the case against the defendant on the ground that the auction sale of 16^th April, 1963 was invalid because it was a disposition of land from a native to anon-native which b virtue of S. 11 of the Land (Law of Property and Conveyancing) Ordinance (Cap. 144) required a written consent of the “Governor/President/Commissioner for Lands.” Such consent had not been obtained, hence the auction sale was a nullity and the house should revert to “whosever owned it before the sale.” On appeal it was submitted by the appellant that it was wrong for the trial court to decided the case upon an issue not raised by the pleadings, that the suit was barred by limitation, that it was ultra vires to go behind the lawfully executed decree in Civil Case No. 426 of 1957 and that even so, the defendant was a native within s. 11 of Cap. 114. The respondent supported the trial court’s judgment and urged that the plaintiff had been too young to bring the present suit earlier and would have no locus standi in court.

            Held: (1) “The relevant rules in this case are those set out in the Indian Code of Civil Procedure of 1908, which was Civil Case Nos. 426 of 1957 and 432 of 1965, as well as at the institution of the present suit. (Hereinafter it will be referred to as “the Code”). According to 0.6, r. 2 of the Code, every pleading should contain the material facts on which the party relies for his claim or defence. It is explained in Mulla’s commentary on the Code, that the whole object of pleadings is to bring the parties to an issue, and the meaning of the rules (relating to pleadings) is to prevent the issue being enlarged, which would prevent either party from knowing, when the cause came on for trial, what is the real point to be  

discussed and decided (Mulla, 3^rd ed. p. 397). In the Kenya case of S. H. Shah v. C.H. Patel and others (1961) E. A. 397, a point of defence not pleaded was raised for the first time in defence counsel’s closing speech. On this point it was held by the Court of appeal that it was for the appellant (i.e. the original first defendant), as the person primarily liable on the bill or note, to plead that if had been endorsed away by the respondents so that the appellants was liable on it to other parties; if he had raised the matter when he should have raised it, there would have been an opportunity for the plaintiffs to call evidence to show, if this was the fact, that they were in a position, when the suit was commenced to hand back the respondent’s promissory notes on payment of the amounts found due; it was too late to rely on it in a final address when the evidence had been closed. The afore-mentioned case was decided on the basis of O.VI r. 5 of the Kenya Civil Procedure (Revised) Rules, 1948, the text of which has not been available to this Court. Nevertheless in support of the decision, Sir, Kenneth O’Connor, President of the Court of Appeal also cited Price, v. Price, 153 E. r. 1174 and Bullen & Leake’s Precedents of Pleadings (11^th ed.) at p. 762 on the English rules of pleading, on which both the Indian Code of Civil Procedure and the Kenya Civil Procedure Rules are substantially based. I have no doubt that the principle of s. N. Shah v. C.M. Patel is equally valid in this country and that it would have been wrong for the trial court to raise a new issue of its own initiative in the judgment, as the defendant would thereby have been deprived of an opportunity to call evidence in rebuttal of this point. However, with respect, I am of the view that this issue was raised by the pleadings and the court was bound under s. 59 of the Evidence Act, to take judicial notice of all relevant statutes in force, whether or not they had been referred to during the trial …..” (2) As regards whether the defendant was a native the court quoted s. 11 of Cap. 114 and continued: “The learned Resident Magistrate appeared to consider it self-evident that an Arab is a non-native. This matter is not quite so simple and clear although it is less difficult than before, when there were in force two statutes with differing definitions of the word “native”. It appears that the question arose for decision in Yahya bin Mohamed vs. Magambeka bin Sinde (1932) IT. L. R. 474. Bates, Ag. J., held that approval of a transaction creating a debt payable by a native within the meaning of the Credit to Natives (Restriction) Ordinance (Cap. 75 of the Revised Edition of the Laws) to an Arab, given by an administrative officer subsequently to that transaction cannot operate to render recoverable by the lender any interest on the debt accumulated before the giving of that approval. In his judgment, Bates Ag. J. noted that he plaintiff was an Arab and the defendant was a native of the Wazaramo tribe, there had been an admission by plaintiff’s advocate that the plaintiff was a non-native for the purpose of the case; it was therefore unnecessary for Bates Ag. J. to concern himself with any question as to the non-applicability or otherwise of the provisions of s. 11 of what was then Chapter 67 of the revised Edition of the Laws and is now Cap. 114. I would add that s. 2 of the Credit to Natives (Restriction) Ordinance, 1931, contained the following definition; “2. In this Ordinance, the expression ‘native’ means any member of any African race, and includes a Swahili, but does not include a Somali or an Abyssinian”. The question arose again before the High Court in Mohamed Raza Suleman and another vs. Sheikh Abdullah bin Suleiman bin Hamed el Harthi and another, (1950) IT. L. R. 547. Sinclair, Ag. C. J. (as he then was) held that Arab in s. 11(8) of the Land (Law of Property and Conveyancing) Ordinance includes all Arabs whatever their

origin. Hence it was ruled that an agreement of sale by the plaintiffs, who were British merchants carrying on business in Dar es Salaam, to the deceased, who was a distinguished Arab resident of Zanzibar, required the approval of the Governor.” …….. “I would also refer to Ibrahim Ismail Hasham v. Nasser bin Salim Saad El-Harthi and others (19555) 2 T.L.R. 220. The plaintiff was an Indian merchant of Tabora; the defendants were eight members of a well-known Arab family established in Zanzibar and Dar es Salaam but the first defendant’s mother was a Uganda African. By his amended defence, t was pleaded that money lent by the plaintiff to the first defendant was irrecoverable as he was a “native” for the purpose of the Credit to Natives (Restriction Ordinance. Law, Ag. J. held that in deciding whether a defendant is a “native the court must look to the facts of each case; no general principle can be laid down ……… “The Ordinance, Cap. 75, was repealed in 1961. Cap. 114 have survived since 1923, shortly after the Mandate began. Learned counsel for the plaintiff has argued that the intention of the Legislature in enacting Cap. 114 were that land should not be sold by native Africans to “people who do not belong to this country.” The difficulty with this submission is that in the present case, the defendant had no opportunity of showing whether or not she is one of those who “belong” to this Country. It is not known if she is a “pure” or “mixed” Arab, as those terms are sometimes used. Nor is it known whether she locks like, lives like or holds herself out to be an Arab – because the point was raised after the evidence was closed. In any event, it seems to me that on the authority of Mohamed raza suleman Versi vs. Sheikh Abdullah etc. (above-cited) all Arabs are natives for the purposes of Cap. 114. As the defendant testified that she was an Arab and this was not disputed, I am of the view that it was erroneous for the learned Resident Magistrate to hold that the disposition of land to he by the plaintiff was invalid without the requisite consent under s. 11 of Cap. 114.” (3) on limitation issue the court stated: “From a perusal of the record and “Exh. E”, it appears that an order was made in Civil Case No. 432 of 1965 against Salum Mazige Malima upon an application by the present defendant for possession on the premises being Plot No. 45 at Nanio, Ukerewe. It is clear that Salum would therefore, be bound by Art 11A of the Law of Limitation from bringing a suit such as the present. But Salum is not the plaintiff in the present case; his son Juma is. Juma had denied in his Reply to the Written Statement of Defence, that he was in any way connected with the previous cases, Nos. 426 of 1957 and 432 for 1965, but on this matter the learned resident Magistrate found against him and I have no doubt that the property attached and sold in the previous civil Case No. 426 of 1957 and the subject of eviction order under 0.21, r. 35 of the code in Civil Case No. 432 of 1965 is the same as the subject-matter of the present suit. Juma also submitted that he was not a party to “the objection proceedings. it does not appear exactly when these “objection proceedings were brought; the evidence in the present case of Nyamo Mture, the Plaintiff’s grandmother, P.W. 1, is that it was sometime in 1964 ….. “It would appear that Nyamo Mture was the objector in proceedings contemplated in 0.21, r. r. 99-103 of the Code; as to the year in which objection proceedings were instituted by her, it may have been 1963 instead of 1964, because “Exh. C” shows the auction was held on 16^th April, 1963, and the certificate of sale was issued by the court on 5^th June, 1964. In any event, any suit brought by Nyamo Mture to establish he right to the property under 0.21, r. 63 of the Code would be barred under Art. 11 of the Law of Limitation unless instituted within a year of 1964. According to Rustomji’s

commentary to the Law of Limitation, Art. 11 does not apply as against a person who was not a party to the proceedings in which the order sought to be set aside was made. However, Rustomji adds – “Where the summary order (contemplated by 0.21, r. 63 and r. 103) is not over-ruled in a regular suit brought within a year, it becomes conclusive and binding on all persons who were parties to it, and also on their successors in title, and they are thereafter precluded from asserting their rights …..’ (See Rustomji, the Law of Limitation (1922) pp. 251 – 252). If the plaintiff were the successor in title of Nyamo Mture, P.W. 1, as the later claimed in her evidence, it would seem that the plaintiff also would be time-barred under Art. 11 of the Law of Limitation. But the learned Resident Magistrate disbelieved Nyamo Nture, P.W.1, and found that the house belonged to Salum Mazige, her son, and not to the plaintiff, her grandson. From a perusal of the record, it appears there was ample justification for this finding, including the absence of eye-witnesses to documentary evidence of title or of transfer; and the vagueness of Nyamo Nture, P.W. 1, and Slum Mazige, P.W. 3, as to the date of the alleged transfer to the plaintiff. The submission regarding the plaintiff’s minority as justifying enlarging the time limitation does not therefore apply.” (4) “I have no doubt that the learned Resident Magistrate was correct in holding that the sale to the defendant became absolute from the date of the auction sale on 16^th April, 1963, objection proceedings having been unsuccessful. As there was a legally transfer it by sale to a third party as she has done. The plaintiff, not being the owner of the house on Plot No. 45, Nansio, was entitled neither to a declaration nor to damages for eviction as claimed.” (5) Appeal dismissed.