[1935] EACA 111

#### COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); LAW, C. J. (Zanzibar) and LUCIE-SMITH, J. (Kenya).

# HASSANALI MAMUJI, Appellant (Original Defendant)

## ALIBHAI EBRAHIMJI DAR & SONS, Respondents (Original Plaintiffs).

## Civil Appeal No. 12/1935.

### Limitation—Immovable property—Dispossession—Acts of Ownership-Burden of Proof-Break in period of adverse possession-New Right of Action.

This was an action for the recovery of land; the defence was that the appellant and another person before him had been in possession for a period exceeding twelve years. The land in dispute formed part of what was originally Plot 88, registered in March 1918 in the name of Abdulhussein Karimji and bounded on the west by Port Tudor. Plot 88 was subdivided into Plots 88/1 and 88/2, and Plot 88/1 was further subdivided into smaller plots of which Plot 34 was one. In April, 1920, Abdulhussein Karimji conveyed Plot 88/1 to Gulamhussein Esmailji Essaji, in December 1920 the latter conveyed Plot 34 to the Mombasa Cold Storage Co., and the Company sold it to the appellant in 1925. Plot 88/2 (now called Plot 91) was acquired by the respondent from Abdulhussein Karimji in 1923. In 1920 the then owner of Plot 88/1 cut away portion of the cliff on the west side of the plot and constructed a landing-place and steps. The landing-place and the lower portion of the steps were in fact within the boundaries of Plot 91; this was the trespass The landing-place and steps were used by the complained of. Mombasa Cold Storage Co. until it closed down some time in 1921. There was no further evidence about the place until 1925 when the appellant purchased and converted the rough steps into a concrete stairway.

The trial Judge found that between 1921 and 1925 there was no one interested in making the further improvement in the wharf and cutting away the face of the cliff; he found himself unable to infer that the Company remained in possession of that portion of Plot 91 from 1921 until 1925, and held that the appellant did not derive title thereto from them, but that time ceased to run against the respondent at some date in 1921 and a new period of adverse possession commenced when the appellant took possession in 1925. He gave judgment for the respondent.

Held (12-8-35) (per Curiam): - That the appellant had not made out a case of unequivocal exclusive possession sufficient to deprive the respondent of the soil. (Marshall v. Taylor (1895 1 Ch. 641) distinguished; Leigh v. Jack (5 Ex. D. 264) and Beaufort v. Aird and Co. $(20$ T. L. R. 602) followed.)

(By Lucie-Smith, J.).-Also that, where there is a break in the adverse possession, as soon as a fresh intruder enters there is a fresh dispossession and a fresh right of action accrues. (Johnson and Sons $v$ . Brock (1907 2 Ch. 533) followed.)

#### Ross for the appellant.

The appellant and his predecessors in title have been in possession of the area claimed since 1920; trespass is a continuing wrong. There is no evidence that any right of possession was ever exercised by the respondent. (He referred to Indian Limitation Act, arts. 142-4, Land Titles Ordinance, 1908, Indian Transfer of Property Act, section 8, Belize Estate and Produce Co. v. Quilter (1897 A. C. 367), Raja Chandra v. Keshaw (42 I. A. 40), 19 Hals. 158, Innasimuttu Udayan v. Upakarath Udayan (23 Mad. 10), Steadman v. Smith (120 E. R. 1), Marshall v. Taylor (1895 1 Ch. 641), Rains v. Buxton (14 Ch. D. 537), Norton v. L. N. W. Ry. Co. (13 Ch. D. 268), Van Diemen's Land Co. v. Table Cape Marine Board (1906 A. C. 92) Littledale v. Liverpool College (1900 1 Ch. 19).)

#### Morrison (with him Doshi) for the respondents.

- Adverse possession must be exclusive. The law is reluctant to assist a trespasser; Littledale v. Liverpool College. As soon as a trespasser abandons his possession the rights of the true owner revive. (He referred to Philpot v. Bath (20 T. L. R. 589, 21 T. L. R. 634), Beaufort v. Aird and Co. (20 T. L. R. 602), Bobbett v. S. E. Ry. Co. (9 Q. B. D. 424), Leigh v. Jack (5 Ex. D. 264), Searby v. Tottenham Ry. Co. (L. R. 5 Eq. 409), 19 Hals. $110).$

SIR JOSEPH SHERIDAN, $P.-I$ have come to the conclusion in this case after a consideration of the record with the assistance of the arguments placed before us by Counsel that there has not been such adverse possession as would give the appellant a title by limitation and so dispossess the respondent to whom admittedly the land in dispute would belong were the argument as to the acquisition of a title by limitation not to prevail. In Marshall v. Taylor (1895 1 Ch. 641), which was relied on by the appellant, the facts supporting a title were very strong indeed. Lord Halsbury at p. 646 says: "When we come to see what the property of the defendant is—that part of this place is covered with cobblestones, and made a part of the yard-that on another part of it a rose-garden is made, and when we consider the continuity of the pathway which is also cindered and treated as part of the adjoining garden, it seems to me it is as strong an aggregate of acts of ownership as you can well imagine for the purpose of excluding the possession of anybody else." (His Lordship then referred to portions of the evidence which led to the inference that the plaintiff in recent times treated the hedge as his boundary, and asked permission of the defendant to enter his garden for the purpose of cutting the hedge). His Lordship then proceeded to find that "there has been complete dispossession". The case of Leigh v. Jack (5 Ex. D. 264) is in my opinion strongly in favour of the respondent as showing the burden cast upon a person setting up a title by adverse possession. The second paragraph of the headnote reads: "Acts of user committed upon land which do not interfere and are consistent with the purpose to which the owner intends to devote it, do not amount to a "dispossession" of him and are not evidence of "discontinuance of possession" by him within the meaning of 3 and 4 Wm. IV c.27 s.3". BRAMWELL, L. J. at p. 273 says: "I do not think that there was any dispossession of the plaintiff by the acts of the defendant; acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with the enjoyment of the soil for the purposes for which he intended to use it, that is not the case here where the intention of the plaintiff and her predecessors in title was not either to build upon or cultivate the land, but to devote it at some future time to public purposes. The plaintiff has not been dispossessed nor has she discontinued possession. her title has not been taken away and she is entitled to judgment."

The case of Littledale v. Liverpool College (1900 1 Ch. 19) is also in favour of the respondent. In that case the action of the plaintiffs in erecting gates at either end of a piece of land, keeping the gates locked and retaining the keys would seem to be of such a nature as to establish such exclusive possession as to create a title by limitation and yet it was held that the action did not have that effect. At p. 23 of the report LINDLEY M. R. says: "They", that is the rightful owners, "could not be dispossessed unless the plaintiffs obtained possession themselves; and possession by the plaintiffs involves an animus possidendi, i.e. occupation with the intention of excluding the owner as well as other people." In another case Duke of Beaufort v. John Aird and Co.. (20 T. L. R. 602 at 603) WARRINGTON J. (as he then was) says: "The law is clear; the Court has in such cases first to have regard to the intention with which the alleged occupation was made, and secondly the nature of the land and whether the occupation made of it excluded the owner". One of the essentials of adverse possession is that it should be adequate in extent, and in the present case where it cannot be said to have been exclusive, where the true owner and others were free to use the ground in question and there was no

assertion of title in the relevant deeds I am definitely of the opinion that a case of adverse possession has not been made out. It is not sufficient that there should be an actual possession by the person claiming title by adverse possession, but there must be a discontinuance of possession by the plaintiff. Contrasting this case with Marshall v. Taylor and Leigh v. Jack $(supra)$ I find it impossible to say that a case of unequivocal exclusive possession sufficient to deprive the plaintiff of the soil has been made out. The case does not appear to me to be nearly as strong as Littledalc $v$ . The Liverpool College (supra) in which it was held that a case of adverse possession had not been made out. I would dismiss the appeal with costs.

$L_{AW}$ , C. J.—I would respectfully agree with the judgment of the learned President. In my opinion, however, this case may also be viewed from another angle. The suit was filed on 9th January, 1934, by the respondents, who claimed the recovery of the portion of land of Plot No. 91 which is in dispute. The appellant's defence is that he has been in possession thereof, by himself or through his predecessors in title, for a sufficient period of time to bar by limitation the respondent's claim. This prescriptive period is twelve years. The appellant himself alleges that he got possession of the disputed portion on the 1st July, 1925, when he bought the adjoining Plot No. 34 from the Mombasa Fishing and Cold Storage Syndicate. The formal conveyance to him of Plot No. 34 was made on the 25th May, 1926. Except for the disputed portion, Plot No. 91 admittedly belongs to the respondents, which they acquired in 1926. On entering into possession of Plot No. 34 in 1925 the appellant says he built the concrete steps and drains on either side thereof, the lower half of which falls within the disputed portion. $He$ admits that he carried out no other works on the disputed portion, and states that the concrete steps were constructed for the purpose of landing fuel for his factory which is admittedly on his own land Plot No. 34. From his own case, therefore, his user of the disputed portion has been limited to the area down the concrete steps and across therefrom down to the foreshore. In addition to this, however, he appears to have enjoyed access from the concrete steps as well as from the foreshore to a cave (godown) which is cut in the cliff side. The cave is also admittedly on his own Plot No. 34. Assuming, however, that his enjoyment of these advantages was exclusive and extended to the whole of the disputed portion and was not limited as described above, it must be remembered that his possession so far as he is personally concerned-commenced on the 1st July, 1925, and had continued for a period of only about St years at the time the suit was filed. It is in connection with this enjoyment of the disputed portion that we have been referred to the Privy Council case of Innasimuttu Udayan v. Upakarath Udayan and Others (23 Mad. 10). In that case the

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defendant had possession of certain lands admittedly for seven years prior to the suit, and there was documentary evidence to show that he personally had been in possession thereof more than five years immediately preceding those seven years. That documentary evidence was exactly similar to the evidence which accompanied his admitted possession. On a review of the whole of that evidence it was held that the burthen of proving possession for twelve years before the suit was filed, which originally rested on the defendant, had been amply sustained by him. In view of that decision it is incumbent on the appellant satisfactorily to establish an exclusive possession by his predecessors in title against the respondents (or their predecessors in title) prior to the 1st July, 1925, in order to make up the full period of twelve years. The immediate predecessor in title of the appellant was the Mombasa Fish and Cold Storage Syndicate, which had ceased to operate in 1921. In that year there was a wharf; also some rough steps where the concrete steps now are. This appears to have been the work of one Mohamed Ali in 1920, whose brother Gulamhusein was the owner of Plot No. 34 immediately before it became the property of the Mombasa Fish and Cold Storage Syndicate. Though Mohamed Ali agrees that the level of the wharf is a little higher now than it was in 1920, there is no evidence whatsoever of any other work having been done on the disputed portion from that time till 1925. The evidence of another witness, Commander Lunt, suggests that the heightening of the wharf was done some time in 1921. From this it might be deduced that it was the Mombasa Fish and Cold Storage Syndicate which raised the height of the wharf, though the circumstances of the case suggest that this could have been caused by the material excavated when the concrete steps were constructed by appellant in 1925. Commander Lunt speaks of the use to which the wharf (and presumably the rough steps) was put in 1921. Apart from this evidence there is nothing to show any user at all by the Mombasa Fish and Cold Storage Syndicate from 1921 to 1925. In effect, during that period, there is no evidence to establish acts of adverse possession of the disputed portion as against the respondents, nor circumstances from which this can be deduced. It cannot therefore be said that the appellant has sustained the burthen of proving a continuous and exclusive possession for the past twelve years. In the circumstances, I would agree that this appeal should be dismissed with costs.

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LUCIE-SMITH, J.-I would respectfully agree with the judgments of the learned President and learned Chief Justice of Zanzibar. In my opinion, however, there is yet another angle from which this case should be considered. The appellant claims that his adverse title commenced to run in 1920 when his predecessor in title one Gulamhussein by his brother Mohamed

Ali exercised certain acts of ownership over the land in dispute that is by filling in the foreshore and thus creating a rough platform or wharf. I would point out in passing that the respondent states that he acquired Plot No. 91 on which is the land in dispute in 1926 and: "I have been paying rates in respect of Plot 91", and again: "I have come by boat to this landing place several times. It is convenient. I have used the steps.' In 1920 the property was sold to the Mombasa Fish and Cold Storage Syndicate who closed down some time in 1922, see the evidence of Ahmed bin Mohamed at p. 11, also the evidence as to closing down given by the appellant himself in re-examination at p. 14. I think it must be assumed that on their closing down they ceased to commit any acts of trespass which they may have been committing while the factory was working, that is use of the foreshore and steps. Halsbury lays it down that if an intruder without title holds possession for less than the statutory period and then abandons possession of the land, as there is then no person against whom the rightful owner can bring an action the rightful owner is in the same position as if no intrusion had taken place and although he is out of possession for the statutory period, and another intruder subsequently takes possession but does not hold for the statutory period, the title of the rightful owner is unaffected by the statute.

I would refer to the judgment of PARKER J. in Samuel Johnson and Sons, Ltd. v. Brock (1907 2 Ch. 533 at p. 538) where he says: "Of course, in Trustees, Executors, and Agency Co. v. Short (13 App. Cas. 793) it was held "that where an intruder took possession of and held the property for a period, and then went out of possession, the person who could complain of his intrusion was on his going out restored to the position in which he was before the intrusion. That means, as I understand it, not that there was any suspension of the right of action, but that the right of action in respect of the intrusion was gone; and though the land thus becoming vacant was in law deemed to be in the possession of the person against whom the intrusion had been made, so soon as there was a fresh intruder there was a fresh dispossession, and a fresh right of action accrued. I do not think that the decision of the Privy Council was based on any suspension of a right which had once accrued, but on the ground that the old right of action was gone when the first intruder went out, and that a new right of action arose when the fresh intrusion occurred. That was the view which KAY, L. J. took of Trustees, Executors, and Agency Co. v. Short in Willis v. Earl Howe (1893, 2 Ch. 545) to which I was referred."

By reason then of the abandonment by the Mombasa Fish and Cold Storage Syndicate as well as the reasons given in the two judgments already delivered I am of opinion that this appeal should be dismissed with costs.