[1929] EACA 53

#### ORIGINAL CIVIL.

#### Before THOMAS, J.

### SHARIFF ALF BIN MOHAMED

$\mathbf{2}$

# ABDULMAJID BIN MWIJABU.

## C. C. $47/1929$ (Msa.).

Order for specific performance-power of Subordinate Court to make.

Sale of land—damages for breach of agreement.

Held: - That a Subordinate Court has jurisdiction in regard to suits relating to land, and that it has power to make an order for specific<br>performance in regard to property coming within the pecuniary limits of its jurisdiction.

Further held that if the Vendor has not a good title the purchaser<br>is only entitled to recover the deposit with interest and costs. He can only obtain other damages by an action for deceit.

Burke for plaintiff.

Morrison for defendant.

JUDGMENT.—In this suit the plaintiff, Shariff Ali bin Mohamed, seeks to recover from the defendant, Abdulmajid bin Mwijabu, the sum of 500 shillings paid in respect of an agreement relating to the sale of a plot of land and the sum of 2,500 shillings damages for breach of his agreement together with costs and interest.

The agreement is set out in two documents written in Arabic, translations of which have been exhibited in the case. The facts very briefly are that the defendant claimed a piece of land which was included in his sister's land. This piece he expected to be about half of the land which his sister had; but he had no certainty whether the piece of land would be the front portion or the back portion. When the matter was decided by a correction of the survey it transpired that the defendant was only entitled to a piece of land much less in area than either the front or back portion. Meanwhile the defendant was not in a position to convey any land at all.

A suit was commenced in the Magistrate's Court claiming specific performance and such other relief which the Court might deem fit. The defendant consented to a decree being passed for specific performance. That was accordingly done; but when it came to enforce that decree it became apparent that the defendant was only possessed of a small piece of land which would not enable him to comply with the decree.

Then the plaintiff commenced proceedings in the Supreme Court claiming the relief that I have set out above.

In the course of the hearing it has been suggested that there has been collusion between the defendant and his sister as to the area of land to which the defendant is entitled. I am not satisfied that such collusion has been proved or that the defendant is entitled to any more land than the smaller piece that is now admitted to be his.

Now the piece of land in question is situated in the Island of Mombasa. It has been suggested that in that the plaintiff is not a native, Mohammedan law does not apply. The land is subject to the lex loci rei sita, and, being in Mombasa, Mohammedan law applies even though the parties are not Mohammedans. (See Secretary of State for Foreign Affairs v. Charlesworth Pilling & Co. and T. D. Charlesworth & Co., Vol. 1, E. A. L. R., p. 24; Edward Powys Cobb v. Rashid bin Salim, Vol. 3, E. A. L. R., p. 35; Romeo Antao v. Mbarak Bukhait, Vol. 7, E. A. L. R., p. 152). The last case has the following: "I was unable to accede to Mr. Atkinson's contention that the application of the Transfer of Property Act had affected the substantive proprietary rights of landowners. That Act, with the exception of one or two sections of which section 51 is one, deals with the modes and formalities of alienation. Mr. Atkinson appeared to me to be raising in a modern form the old claim by local European landowners to exterritoriality."

I have consulted the Chief Kadi and he advises me with regard to the two written documents that the first document is invalid according to the Sheriah since there is a condition and the object of the sale was not known. (See Minhaj, p. 124, s. 5). At the time of the bargain none of the parties knew what was being sold and the bargain under such circumstances was not valid. (See Minhaj, p. 127, s. 8.)

The second document is only a receipt, it amends the original agreement but does not make it any better and the agreement is still invalid.

I agree with that opinion which is also supported by the case of Cobb v. Rashid bin Salim to which I have referred above. The agreement was therefore invalid and could not be enforced. I have already mentioned that a suit was commenced for specific performance in the Magistrate's Court.

I have consulted the Chief Kadi on this point also and he is of opinion that when the parties to an action agree and the defendant undertakes to convey then it is binding although the priginal agreement was invalid according to the Sheriah. $\quad \ \ \text{It}$ has been suggested in the course of the hearing that the District Court has no power to make an order for specific performance. Reference has been made to a decision of the Supreme Court

in respect of this question, but it has not otherwise been placed I have referred to the case of Ibrahimji Allibhoy before me. v. Mwenye Shimbwa and others, E. A. L. R., Vol. 4, p. 3. $_{\rm In}$ that case specific performance of a contract relating to land was refused by the Magistrate not because he had no power to make an order for specific performance but because the contract came under the Sheriah and was on that account not enforceable.

Actions for specific performance of contracts between vendors and purchasers of real estate are expressly assigned to the Chancery Division in England. Where the subject-matter of the contract does not exceed the limits of the County Court jurisdiction the plaintiff may obtain relief by way of specific performance in a County Court. (See Halsbury, Vol. 27.) So that in England by special enactment County Courts have the power to give relief by way of specific performance. $A$ power to give such relief is inherent in the Supreme Court of this Colony. The question then arises as to whether that power has been extended to the District Courts.

The Civil Procedure Ordinance, No. 3 of 1924, in section 12 (d), provides that subject to the pecuniary or other limitations prescribed by any law suits for the determination of any right to or interest in immovable property shall be instituted in the Court within the local limits of whose jurisdiction the property is situated. Then there follows this provise: Provided that a suit to obtain relief respecting or compensation for wrong to immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted, etc.

The words specific performance are not actually used but I am satisfied that bound up in the relief conferred upon the District Courts is the relief by specific performance. Those Courts have jurisdiction with regard to suits relating to land and it would only be logical also to confer on them, as has been done in the case of the County Courts in England, powers to afford the relief in regard to properties coming within the pecuniary limits of their jurdisiction.

Therefore, in my opinion, a claim for specific performance may be rightly made in a District Court.

Such a claim has been made in the District Court in relation to this agreement and the defendant has consented to judgment. When the suit was instituted a claim might have been made in the alternative for damages, since when the plaintiff establishes a title to relief in equity damages may be awarded in addition to or in substitution for a judgment for specific performance. (See Halsbury, Vol. 27, p. 106.) Also in that action the return of moneys paid might have been recovered as well as damages in respect of search of title. By Order 11, Rule 1, every suit

shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. In the action in the Resident Magistrate's Court, Mombasa, the plaintiff in fact claimed any other relief which the Honourable Court might deem fit.

Objection has been taken that the matter is res judicata. By Ordinance 3 of 1924, s. 7 "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, in a Court competent to try such subsequent suit in which the issue has been subsequently raised. and has been heard and finally decided by such Court ". And Explanation $(5)$ provides any relief claimed in a suit which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.

Had the Court refused to grant specife performance for such good reason, e.g., that the matter was not enforceable under the Sheriah or the defendant had no title to the property, the Court might have given relief by ordering a return of the purchase money and also any costs properly incurred in the investigation of the vendor's title. (See Ibrahimji Allibhoy $v$ . Mwenye and others, 4 E. A. L. R., p. 3.)

In my opinion the prayer for any other relief which the Court might deem fit would cover the matters I have mentioned in the previous paragraph.

In making the order for specific performance and not making provision for other relief the Court may be deemed to have refused other relief; or the parties in coming to an agreement may be considered to have foregone any other relief: but the alternative relief should have been included and therefore in my opinion the matter is res judicata and the suit fails as far as the return of the 500 shillings.

With regard to the claim for 2,500 shillings, the plaintiff now says that in view of the non-compliance with the order for specific performance he has been prevented from transferring the parcel of land in question and is entitled to recover the loss of profit as damages.

I have referred to Flureau v. Thornhill, 1776, 2 William Black, 1078 (96, E. R. p. 635), in which it is clearly laid down that "contracts relating to land are merely upon conditions frequently expressed but always implied that the vendor has a good title. If he has not, the return of the deposit with interest and costs is all that can be expected ". And LORD CHELMSFORD in the case of Bain v. Fothergill, 1874 (L. R. 7, H. L. 158), stated that "If a person enters into a contract for the sale of real estate knowing that he has no title to it, nor any means of acquiring

it, the purchaser cannot recover damages beyond the expenses he has incurred by an action for the breach of the contract; he can only obtain other damages by an action for deceit."

In the pleadings in this case I cannot see any allegation of deceit (which should be specifically pleaded) and I cannot see that any deceit has been proved.

The suit therefore fails on this ground also.

I would draw attention to section 34 of the Civil Procedure Ordinance which states: "All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution of the decree, shall be determined by the Court executing the decree and not by a separate suit.

There will be judgment for the defendant with costs.