Land Officer v Dewashi (Civil Appeal No. 73 of 1952) [1952] EACA 178 (1 January 1952)

COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and Cox, C. J. (Tanganyika)

THE LAND OFFICER, Appellant (Original Respondent)

ALI MOHAMED DEWASHI, Respondent (Original Appellant) Civil Appeal No. 73 of 1952

(Appeal from the decision of H. M. High Court of Tanganyika—Knight, J.)

Land Registry Ordinance, Tanganyika, section 64 (2)—Rectification of boundary by Registrar after hearing parties—Jurisdiction.

Upon a dispute arising between the respondent and another regarding a boundary between two registered plots of land in Dar es Salaam, the Registrar after due inquiry which included hearing the interested parties made a rectification purporting to exercise powers given him by section 64 (2) of the Land Registry Ordinance. The respondent gave notice of intention to appeal under section 96 (1) of the Ordinance. At the hearing it was argued that the Registrar had no jurisdiction to make the order and also that the rectification was wrongly made. The High Court held that the Registrar had no jurisdiction and the Registrar appealed to the Court of Appeal for Eastern Africa.

Held (24-10-52).—(1) There was nothing in section 64 (2) to show that the Registrar could not move because he learnt of the need for rectification not from his own examination of the surveys but at the instance of one of the plot holders.

(2) The Registrar has a general duty to see that the boundaries of registered plots are correctly delineated and described on the registered plan and in the description in the register and if he thinks an error exists, it is his duty after due inquiry to rectify it.

Appeal allowed and order of Registrar restored.

Sir Henry James for appellant.

Respondent absent, unrepresented.

JUDGMENT (delivered by SIR BARCLAY NIHILL (President)).—The appellant in this case, who is the Land Officer to the Government of Tanganyika, is aggrieved by a judgment of the High Court of that territory. The matter came before the High Court in this way. The Registrar, purporting to exercise powers given him by section 64 (2) of the Land Registry Ordinance (Cap. 116, Laws of Tanganyika, 1947), rectified the boundary between two surveyed and registered plots of land lying in the township of Dar es Salaam. One of the plots bearing Title No. 7107 is a freehold registered in the name of the respondent to this appeal, the other is held by one Kassam Bhimji from the Crown under a Certificate of Occupancy Title No.

3621. From the report of the Registrar to the High Court it would appear that a dispute having arisen between the respondent and Kassam Bhimji regarding the mutual boundary on the eastern side of the former's plot, the matter was referred to the Registrar, who after due inquiry, which included hearing the interested parties, made a rectification. Subsequently the respondent being aggrieved by the rectification gave notice to the Registrar under section 96 (1) of the Land Registry Ordinance of his intention to appeal to the High Court against the order of rectification.

The appeal in due course came on for hearing before the High Court on five grounds of appeal, four of these alleged reasons showing that the rectification had been wrongly made, the remaining ground being that the Registrar had no jurisdiction to make the order. At the beginning of the proceedings before the High Court, the respondent's advocate, Mr. Master, took this point first, and the learned Judge agreeing with it gave judgment for Mr. Master's client without examining the merits of the appeal. The effect of that judgment was to set aside the rectification of the boundary made by the Registrar.

The respondent to this appeal has not appeared before us either in person or by his advocate for the reason, so we are informed, that he has come to terms with his neighbour on the east and is now prepared to accept the rectification. We have, however, allowed the appeal to proceed as the Land Officer is the person aggrieved by the ruling as to jurisdiction taken by the High Court. We are not concerned on this appeal with the issue as to whether the rectification made by the Registrar was erroneous or not, but only with the question as to whether he had jurisdiction to make a rectification at all. On this point, as we have already indicated, we are in complete agreement with the argument presented by Sir Henry James. In our opinion the learned Judge in the Court below erred in supposing that the Registrar could not move under section 64 (2) because he learnt of the need for rectification, not from his own examination of the surveys, but at the instance of one of the plot holders. There is nothing in the section which warrants such an interpretation. The Registrar has a general duty to see that the boundaries of registered plots are correctly delineated and described on the registered plan and in the description in the register and, if he thinks an error exists, it is his duty after due inquiry to rectify it. It matters not at all in what way information as to a possible error may reach him. With respect therefore the learned Judge was wrong in his finding on the preliminary point and he should have heard the appeal on its merits, which would have involved a finding as to the correctness or otherwise of the rectification made by the Registrar.

We do not know whether the respondent will now wish to proceed with his other grounds of appeal against the correctness of the Registrar's order, but until that order is set aside by the High Court it must be restored. We accordingly allow this appeal, set aside the judgment of the Court below, and restore the finding of the Registrar dated the 18th April, 1951. The respondent is given liberty, after notice to Kassam Bhimji and to the Land Officer, to apply to the High Court, if he so wishes, for his appeal to that Court to be set down for further hearing. He must do so within 60 days from the 21st day of October, 1952, otherwise his appeal will abate. Each party will bear its own costs of this appeal.