[1933] EACA 6

## ORIGINAL CIVIL.

## Before DICKINSON, J.

## KHADIJA BINTI KHAMIS BIN KHALFAN AND OTHERS $(Plaintiffs)$

#### $\pmb v.$

# 1, REGISTRAR OF TITLES; 2, KASSAM KHIMJI; 3, AD-MINISTRATOR OF THE LATE KHAMIS BIN KHALFAN (Defendants).

## C. C. 26/1932 (Mombasa).

- Registration of Titles Ordinance-Indefeasibility of grants-Certificate of ownership obtained from the Recorder of Titles by fraud-Subsequent charge-Rectification of the Register of Titles. - Held (30-9-32).—That a certificate of ownership obtained from the Recorder of Titles through the concealment of a wakf affecting the property and a fraudulent representation of absolute ownership was not indefensible alth

Christic for Plaintiffs.

Doran, Crown Counsel, for Registrar of Titles.

Patel for Chargee.

Third Defendant in person.

In 1899, M., an Arab lady, wakfed her house and land at Mombasa to her son K. and his descendants for ever, and appointed K. to be the Mutawali. M. died. In 1911, K. applied to the Recorder of Titles for a certificate of ownership. The application was written in Arabic and disclosed the wakf. The Recorder of Titles did not know Arabic, and a supposed translation into English was written on the application. The translation made no reference to the wakf, and it was stated that the applicant had inherited the property from his mother. In 1922 the Recorder of Titles was deceived by the false translation, and adjudged the applicant to the absolute owner. In 1923, the Recorder of Titles granted a certificate of ownership in favour of K., certifying him to be the absolute owner, free from encumbrances, and caused the certificate to be registered in the Registry of Titles. $\quad \ \ \textbf{Five}$

weeks later the Registrar of Titles delivered the certificate to K. K. borrowed money from the second defendant, and executed a charge in his favour over the property. The second defendant relied upon the certificate of ownership, and had no knowledge of the wakf. The charge was registered and the certificate endorsed and delivered to the second defendant. K. defaulted, and in 1930 the second defendant obtained judgment against him. In 1931, the property was sold by public auction under an order of the Court, and the second defendant bought it in. The beneficiaries filed a caveat with the Registrar of Titles and prevented registration of the conveyance to the second defendant. The beneficiaries called upon the first defendant to call in the certificate of ownership, and to have it amended to disclose the wakf. The Registrar of Titles refused on the ground that he had no authority to alter a judgment of the Recorder of Titles. The beneficiaries sued for: (1) a declaration that K. was a trustee for the issue of M., and that all acts by which he purported to charge the property were illegal and void; $(2)$ an order setting aside the decree of sale and declaring the property to be vested in the plaintiffs subject to the trusts of the said wakf; and (3 an order directing the Registrar of Titles (a) to call in and cancel the certificate of ownership, (b) to correct the Register of Titles by deleting the entry of the title of the late K. and the charges in favour of the second defendant, and (c) to enter in the Register of Titles the title of the plaintiffs as trustees of the wakf, and to make up and issue a new certificate of ownership to the plaintiffs. One of the beneficiaries and the Wakf Commissioners were appointed by the Court trustees of the wakf in succession to K., and were joined as plaintiffs.

JUDGMENT.—The plaintiffs are suing the defendants for a declaration that the certificate of ownership issued to one Khamis bin Khalfan for Plot 424, Sec. III, Mombasa, was wrongly issued, and for an order on the first defendant for rectification of the Register of Titles, and alternatively plaintiffs claim against the first defendant Sh. 10,000 compensation by way of damages for loss incurred to them from the wrongful issue of the said certificate of ownership.

In order to understand who the parties are, it is necessary to set out some of the facts disclosed at the hearing.

One Mwana Iki, an elderly Arab woman, in the year 1899, being the owner of a certain house in the Town of Mombasa, made a dedication of that house as a wakf before the Cadi of Mombasa, who recorded the terms of that wakf in his own handwriting.

That document sets out that the property is declared wakf "for the benefit of the dedicatrix' son, Khamis bin Khalfan, and his children and their children for ever".

It appointed Khamis bin Khalfan the first trustee of the wakf, and declared that his successor shall be one of his children. He is now deceased.

Khamis bin Khalfan had a large family, consisting of at least six daughters, the four survivors of whom are the first four plaintiffs.

The fifth, sixth and seventh plaintiffs are grandchildren of Khamis bin Khalfan.

The eighth, ninth, tenth, and eleventh plaintiffs are the Wakf Commissioners, who have been appointed, together with Plaintiff No. 12 (the same as Plaintiff No. 2), trustees of the wakf in succession to Khamis bin Khalfan, the original trustee appointed by the deed of dedication.

The first defendant is the Registrar of Titles.

The second defendant is the man to whom Khamis bin Khalfan charged the property in question.

The third defendant is the administrator of the estate of Khamis bin Khalfan.

In order to understand the dispute between the parties which has led to this action being instituted. I must set out the facts as established to my satisfaction by the evidence.

The dedicatrix died early in this century, and Khamis bin Khalfan, her son, became the beneficiary and trustee of the property, which consists of a house and the land on which it is situated in a crowded Arab quarter of Mombasa Town.

The dedicatrix was in possession of the property by inheritance from her forebears, and, it was stated, was born in the house in question.

On the 10th February, 1913, Khamis produced the wakf deed at the Registry of Documents, and it was duly registered and so endorsed.

Thereafter, the duly endorsed wakf deed got into the hands of one Fatuma, a daughter of Khamis, and a sister of the first four plaintiffs. She died, and the document then got into the hands of Khadija, the first plaintiff, where it remained until shortly before this action, when she handed it to Messrs. Ross and Christie.

The document has been duly authenticated by the son of the writer, who was a former Cadi of Mombasa. The witness, a vakil practising in Mombasa, was present when the dedicatrix gave her instructions for the deed to be drawn up.

I am satisfied beyond doubt that the wakf deed is genuine.

Prior to the registering of the wakf deed, Khamis bin Khalfan on the 30th December, 1911, applied to the Recorder of Titles for registration of the property. His application was made in Arabic on the prescribed form. This form is divided into nine sections, each necessitating a reply to a certain question. A reply to each question was written by Khamis bin Khalfan himself in Arabic.

As the Recorder at the time could not understand Arabic, it was a practice for one of the Arabic interpreters attached to the office to write under the Arabic characters a translation in English.

The Arabic reply of Khamis to the third question, "How such ownership was obtained", was translated before me by the witness Mbarak, and accepted without comment by the present Arabic clerk of the Registrar of Titles as correct.

He gave the translation as: "I have obtained from mother she wakfed them for me two years ago."

It is to be noted that the translation of the whole application form is in the handwriting of one Mohamed bin Said, who held at the time the position of Arab interpreter to the Registrar of Documents, with one exception, viz. the reply for the vital question No. 3.

Here it is patently clear that there has been an erasion of the original English words written below the Arabic, and this erasion has been superscribed by another handwriting with the words "Inherited it from my parent Mwana Iki."

The handwriting of this superscription is said to be that of one Seraj bin Ali, an interpreter then in the Recorder of Titles Office.

It is an interesting fact that the words "wakfed it to me two years ago" can be deciphered in strong sunlight in two lines below the English words normally visible, and these two lines must have been erased with meticulous care, as practically no ink-has been allowed to remain, but the indentation made by the pen can be seen.

I can only come to the conclusion that, knowing that Mr. Maclean, the Recorder, would have to rely on the English translation, and not on the original Arabic, this forgery was perpetrated deliberately to mislead him into issuing a certificate of ownership to Khamis as full owner, which the Recorder of Titles did on the 29th August, 1923, instead of to Khamis as trustee of the property as wakf.

It appears to me that Khamis must have been a party to this forgery and fraud, as on 14th December, 1915, he mortgaged the property by a document of mortgage in which he described himself as owner, and, had the certificate of ownership been issued to him as trustee of a wakf, he would have been liable to prosecution.

More certainly is this so as the mortgagee, Suleiman Virji, registered this mortgage document on the 15th December, 1915, with the Registrar of Documents, and produced it before the Land Registration Court to the Recorder on 26th June, 1922.

The Recorder gave his judgment in favour of Khamis bin Khalfan for the property in question, and others on the 16th February, 1922, but at the date the mortgagee produced the mortgage to him the certificate of ownership had not yet been issued.

As a fact, the certificate of ownership was originally drawn up with a record of this mortgage entered thereon, but as the mortgage debt had been paid off the entry was cancelled and initialled when it was issued to Khamis.

As stated above, the Recorder of Titles issued the certificate on 29th August, 1923, and sent it to the Registrar of Titles to be registered. This was done on 30th August, 1923, and later the certificate of ownership was issued to Khamis.

Since that date Khamis has borrowed money and charged the property several times, some of the charges being paid off.

The last three charges on this property have been in favour of the second defendant.

The second defendant brought an action, No. 1554 of 1930, against Khamis in respect of the last-mentioned charge, and obtained judgment therein, when he proceeded to attach and sell the charged property.

The property was put up for sale subject to the two preceding charges, and the sale took place by order of Court, and the property was bought in by the second defendant, who had received leave to bid at the sale.

Defendant No. 2 thereupon applied to the Registrar of Titles to register him as the owner of the property.

The evidence goes to show that it was at the time of the sale that it came to the knowledge of the daughters of Khamis that something was wrong, holding as they did the wakf deed.

They consulted Messrs. Ross and Christie, who took the matter up, and on their advice the daughters caused a caveat to be filed at the Registry of Titles.

This prevented the issue of a certificate to the second defendant.

Thereafter correspondence passed between Messrs. Ross and Christie, the Registrar of Titles, and Messrs. Patel and Rahman, acting on behalf of the second defendant.

Messrs. Ross and Christie wrote to the Registrar of Titles and asked him to call in and amend or cancel the certificate of title issued to Khamis, and to make the necessary rectification in the Register of Titles. To this the Registrar replied that he had no power to alter the finding of the Recorder of Titles, a judicial pronouncement.

Whilst this was proceeding, Khamis bin Khalfan died.

The first four plaintiffs on the 16th March, 1932, instituted the present action, citing as defendants (1) the Registrar of Titles; (2) Khassim Khimji, chargee of the property, the purchaser at the sale and applicant for registration; (3) the Administrator of the estate of Khamis bin Khalfan.

The plaintiffs claim the rectification of the Register by deleting therefrom everything which has been done as a result of the error made in the granting or issuing of the certificate of ownership to Khamis.

Alternatively, they claim Sh. $10,000$ compensation as damages.

At the first hearing, objection was taken that there was no trustee appointed to fill the position held by Khamis, and it was ordered that the Wakf Commissioners be joined.

Later, the family agreed that the second plaintiff, Amina, should be appointed as trustee, and the Court made the appointment, but thought it advisable that she should have as co-trustees the Wakf Commissioners, and appointed them co-trustees acordingly. The trustees have been added as plaintiffs, and the title of the action has been amended accordingly.

Although many of the facts which I have found established were in the knowledge of the first defendant, the Crown has demanded strict proof of every point.

I hold that it has been proved before me without reasonable doubt that the property in question was dedicated by a wakf deed, and that the issue of the certificate of ownership to Khamis as owner was only made by the Recorder of Titles on a forged application.

The more difficult question is what remedy the plaintiffs are entitled to.

The defendants one and two have both asserted vigorously that the plaintiffs are only entitled to damages.

The plaintiffs insist that they are entitled to have the grant issued to Khamis cancelled as issued in error, stating correctly that unless this is done they will be driven out of the old family home to which they are attached.

I find it is proved that Khamis bin Khalfan deliberately committed a fraud when he mortgaged and charged what he knew to be trust property.

The first defendant, when asked in the correspondence to rectify the Register of Titles, declined to do so, stating that in his opinion he had no such power, as to make the rectifications requested would necessitate that he, the Registrar of Titles, reverse or set aside a judgment given by the Recorder of Titles in the Land Court.

The relevant sections of Cap. 142 dealing with the force and effect of certificates of title are sections 22 and 23, and section 24 sets out a remedy for persons who by reason of the provisions of the law are deprived of land or an interest in land.

I set these sections out in full:-

"Section 22.-When land comprised in a grant has been transferred or transmitted in manner hereinafter provided, the Registrar shall issue, in duplicate, a certificate of title in favour of the new proprietor in the terms contained in Form C or D of Schedule I, one copy of which he shall register in the same manner as is hereinafter provided for grants, and the other he shall deliver to the new proprietor, and in like manner a fresh certificate of title at every fresh transfer or transmission; and the previous certificates of title shall be delivered up to the Registrar and cancelled by him, and the title of the proprietor under each fresh certificate shall be as valid and effectual in every respect as if he had been the original grantee in the grant of the land contained in the certificate".

Section 23.—The duplicate certificate of title issued by the Registrar to any purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all Courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the conditions and agreements expressed or implied in the original grant, and in any subsequent transfer or transmission thereof, and the title of such proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation, to which he is proved to be a party. And a certified copy of any registered instrument, signed by the Registrar and sealed with his seal of office, shall be received in evidence in the same manner as the original.

"Section 24.—Any person deprived of land of any interest in land in consequence of fraud or through the bringing of such land under the operation of this Ordinance, or by the registration of any other person as proprietor of such land or interest, or in consequence of any error or misdescription in any grant or certificate of title or any entry or memorial in the register, or any certificate of search, may bring and prosecute an action at law for the recovery of damages against the person upon whose application such land was brought under the operation of this Ordinance, or such erroneous registration was made, or who acquired title to the interest through such fraud, error or misdescription: Provided always that, except in the case of fraud or of error occasioned by any omission, inisrepresentation, or misdescription in the application of such person to bring such land under the operation of this Ordinance, or to be registered as proprietor of such land or interest, or in any instrument signed by him, such person shall upon a transfer of such land bona fide for value cease to be liable for the payment of any damages, which, but for such transfer, might have been recovered from him under the provisions herein contained; and in such last-mentioned case, also in case the person against whom such action for damages is directed to be brought as aforesaid shall be dead or shall have been adjudged insolvent or cannot be found within the jurisdiction of the Supreme Court, then and in any such case such damages with costs of action may be recovered out of the public funds of the Colony by action against the Registrar as nominal defendant: Provided also that in estimating such damages, the value of all buildings and other improvements erected or made subsequently to the deprivation shall be excluded."

The relevant sections dealing with the powers of the Registrar to amend mistakes in certificates of title or in the Register (other than purely clerical mistakes) are sections 58, 59 and 60; the latter two sections also provide machinery for enforcing his powers of amendment. I set these sections out in full:—

"Section 58.—In the case of a non-existent or fictitious person being named as proprietor, such name in the Register or document of title or other instrument may on the order of the competent authority be cancelled. In other cases, the rectification of grants, certificates of title and other instruments shall be effected by the addition of further endorsements correcting such former endorsements as are found to be insufficient or to have been otherwise made in error.

"Section 59.—In case it shall appear to the satisfaction of the Registrar that any grant, certificate of title or other instrument has been issued in error, or contains any misdescription of land or of boundaries, or that any entry or endorsement has been made in error on any grant, certificate of title or other instrument, or that any such grant, certificate, instrument, entry or endorsement has been fraudulently or wrongfully obtained, or that any such grant, certificate or instrument is fraudulently or wrongfully retained, he may summon the person to whom such grant, certificate or instrument has been so issued or by whom it has been obtained or is retained, to deliver up

the same for the purpose of being corrected, and in case such person shall refuse or neglect to comply with such summons. or cannot be found, the Registrar may apply to the Court to issue a summons for such person to appear before the Court and show cause why such grant, certificate, or other instrument should not be delivered up to be corrected as aforesaid. and if such person, when served with such summons, shall neglect or refuse to attend before the Court at the time therein appointed, it shall be lawful for the Court to issue a warrant authorizing and directing the person so summoned to be apprehended and brought before the Court for examination.

"Section 60.—Upon the appearance before the Court of any person summoned or brought by virtue of a warrant as aforesaid, it shall be lawful for the Court to examine such person upon oath or affirmation, and, in case the same shall seem proper, to order such person to deliver up such grant, certificate of title, or other instrument as aforesaid, and upon refusal or neglect by such person to deliver up the same pursuant to such order, to commit such person to prison for any period not exceeding six months, unless such grant, certificate of title, or instrument shall be sooner delivered up, and in such case, or in case such person shall have absconded so that a summons cannot be served upon him as hereinbefore directed, the Court may direct the Registrar to cancel or correct any certificate of title or other instrument, or any entry or memorial in the Register relating to such land, and to substitute and issue such certificate of title or other instrument, or make such entry as the circumstances of the case may require, and the Registrar shall give effect to such order."

The right of any person, aggrieved by any order or refusal of the Registrar, to appeal to the Court by means of an order of mandamus on the Registrar is set out in section 61, which I also set out in full: —

"Section 61.—If any person shall be dissatisfied with any act, omission, refusal, decision, direction, or order of the Registrar General or a Registrar, such person may require such Registrar General or Registrar to set forth in writing under his hand the grounds of such act, omission, refusal, direction, decision, or order, and thereupon such person may apply to the Court by mandamus setting forth the particulars and the grounds of his dissatisfaction, and thereupon the Registrar General or Registrar shall be served with such mandamus, and the Court shall have jurisdiction to hear the said mandamus, and the Court shall make such order in the premises as the circumstances of the case may require, and as to the costs of the parties who shall appear upon such mandamus as the Court shall direct."

Mr. Christie, for the plaintiffs, has argued that by section 59 the Registrar has power when he "is satisfied that a grant.... has been wrongfully or fraudulently obtained or retained . . . to summon the person to whom such grant has been issued, or by whom it is retained to deliver up the same for the purpose of being corrected", and on his failing to obey the Registrar may apply to the Court to have the delinquent brought before the Court.

By section 60: "It shall be lawful for the Court... in case the same shall seem proper, to order the person to deliver up the said grant, and upon refusal may commit such person to prison . . . and, in such case, the Court may direct the Registrar to cancel or correct any certificate of title or other instrument or any entry in the Register relating to such land and to substitute and issue such certificate of title or other instrument or make such entry as the circumstances may require, and the Registrar. shall give effect to such order."

By the wording of section $58$ , it would appear that there is no power in the Registrar to rectify a certificate of title where the owner is an existing person.

Section 59 seems to refer to cases where certificates of ownership have been obtained by fraud, and to give elaborate legal machinery for summoning a delinquent holder of such certificate before him or before the Court for the purpose of having such certificate "corrected", although such does not appear to be a specific rectification provided by section 58.

As the Registrar has power to force the production of such a certicfiate for correction there must, I hold, be presumed the power to correct, if not vested in the Registrar then vested in the Court to whom he (the Registrar) may apply by sections 59 and $62$ .

The Registrar was asked to rectify; he refused, and gave his reasons; and the applicant asks this Court to order rectification under the powers conferred by section $61.$

Section 61 would appear to give to persons aggrieved by such a refusal by the Registrar the right to apply to the Court.

Sections 22 and 23 have been variously interpreted in several judgments of the Courts. One of the principal judgments cited is that Mr. Justice Pickering (as he then was) in the Court of Appeal for Eastern Africa in the case of Sulciman Virji v. Abdurchman, reported East African Law Reports, Vol. IX, p. 167, wherein he held that a registered certificate of ownership, even though it was invalid, was indefeasible.

It does not appear from the report, however, that the learned Judge, for whose opinion I have the highest respect, had had the opportunity of examining the judgment of the Privy Council in Messer v. Gibbs, reported A. C. 1891, p. 248, or that in Assets Co. v. Mere Roihi, reported A. C. 1905, p. 176.

The first was an appeal from the Full Court of Victoria, and although dealing with a somewhat different matter from the present dispute held that a bona fide purchaser for value who had been placed on the register by means of an invalid document must be removed from the register.

It is agreed that the principles of the Australian Torrens System are the basis of Cap. 142.

This was a case of a subsequent certificate issued upon a transfer, such as is, in my opinion, referred to in section 23.

It appears to me that section 23 seeks to place a transferee in a superior position to the original certified and registered owner, and that if a bona fide transferee's registration may be attacked under certain circumstances, so much the more may be the certificate issued on an original application fraudulently made.

In this connexion, however, I find that the judgment of the Privy Council in the case of Assets Co. v. Mere Roihi on appeal from the Court of Appeal of New Zealand does not entirely support my view, for there it was held that there was no material distinction to be drawn between the original certified owner and a subsequent certified owner on transfer.

The judgment in Messer and Gibbs was distinguished, and it was laid down that, however irregularly a registered certificate was obtained, short of a crime that certificate was indefeasible.

However, the converse seems reasonably to apply, namely, that where such certificate has been obtained by a crime, particularly that of forgery, such certificate and the registration of it may be attacked, and, upon proof of the crime, cancelled.

I feel therefore that the judgment of the Court of Appeal in Suleiman Virji v. Abdurehman, supra, does not apply here, and that I must follow the guiding principles of the findings in Messer and Gibbs and the Assets Co. v. Mere Roihi, and make such order as appears to be just.

I am strengthened in this view by the fact that Mr. Justice Thomas, in the case of Mwana Arafa and Others v. Tambaki, action 110 of 1930 (unreported), elected to differ from the judgment of Pickering J. (*supra*), when he held that where, by means of a document of gift, afterwards cancelled by a later document, the donee obtained registration of certain property for which the donor had some time previously applied for registration, the

donee fraudulently concealing the document of cancellation, the donor would be entitled to a cancellation of the certificate obtained by the donee and for a rectification of the register.

This, of course, is a case of a registration being obtained by criminal fraud.

That case was decided in favour of the donee for other reasons, but the learned Judge certainly had no difficulty in deciding that rectification of the register was a remedy for which the plaintiff (the donor) under the circumstances was entitled to ask.

Further on, a reference by the Registrar of Titles for directions in the matter of the property of Kassanbhai Suleman Virji, deceased, File No. 205, also unreported, the learned Chief Justice (Sir Jacob Barth) directed "the title be rectified by the alteration of the same on the certificate from that of the deceased to that of the administrator of the deceased, and that the register be altered accordingly." He held that section 58, together with the power provided by section 62 to order "such particular form of entry to be made on the register or certificate of title as under the circumstances shall appear to be just", gives the Court power "to rectify certificates of title which are found to be in error".

This case was not involving any potential loss to a registered proprietor.

Further, section 23 gives authority to attack a certificate of title upon a transfer to a purchaser of land on the ground of fraud, to which such purchaser is a party, although otherwise such a certificate of title is absolute and indefeasible proof that the holder is the owner.

Sections 20-23 are the authority on which Mr. Justice Pickering based his decision in the case of Sulciman Virji v. Abdurehman.

I find therefore that the plaintiffs are entitled to the declaration they ask for, and I order that the Register of Titles be amended by the concellation of the entry of the certificate of ownership issued to Khamis bin Khalfan on the 30th August, 1923, and for a new entry to be made incorporating a new certificate of ownership to be issued in the name of the new trustees appointed by order of the Court on the 6th August, 1932. as trustees of the wakf of Mwana Iki, upon the terms and conditions of that wakf.

I have been asked to find as a fact what amount of compensation or damages the plaintiffs would be entitled to recover from the first defendant under section 24, in the event of my decision on the question of rectification being reversed on appeal, to enable the Appellate Court to give a judgment disposing of the case finally.

From the evidence which has been called for both parties on this matter, I am of opinion that the amount claimed by the plaintiffs in this respect is rather less than they would have been entitled to claim, certainly if the date at which the property has to be valued is the date of the issue of the certificate to Khamis bin Khalfan.

I should have valued the property then at about Sh. 13,000, and even allowing that the property has been improved since that date, I do not think that anything like Sh. 3,000 has been expended on such improvements.

I find that if the rectification asked for and allowed is not upheld by the Court of Appeal that the full compensation claimed should be awarded to plaintiffs.

The second defendant appears to me to have been deprived of an interest in land by operation of this law, and that he would therefore be entitled to the remedy provided by section 24.

It has been disclosed in the course of the case that the second defendant is at present holding the certificate of title I have ordered to be cancelled; he is ordered to deliver this certificate to the Registrar forthwith, but such delivery is not to affect his rights to such remedies as are open to him under the $law.$

As to the costs, I order that plaintiffs' costs be paid by the first defendant, and the costs of the second defendant also be paid by the first defendant. The third defendant has taken no active part in the trial, and no order is made in respect of his costs.

Fees allowed on higher scale. Also costs of copies of proceedings allowed. Special fee for instructions allowed to plaintiffs at Sh. 2,000.