Wakilii

Hubble v Commissioner for Transport (Civil Appeal No. 49 of 1951)

East African Court of Appeal · [1952] EACA 97 · 1952 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the Supreme Court of Kenya dismissing a claim for declarations and damages concerning railway realignment entry on leased Crown land
Decision
Appeal dismissed with costs; compensation to be assessed under Crown Lands Ordinance 1902

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the High Commissioner for Transport was not a contractor within section 28 of the Crown Lands Ordinance 1902, but that the Governor had inherent power to depute his powers to the High Commissioner. Entry upon and acquisition of use of the land was made under section 24 of the Crown Lands Ordinance 1902, not under the Railway Ordinance. Compensation is therefore payable under the Crown Lands Ordinance, not under section 8 of the Railway Ordinance which applies only to damage caused in the exercise of powers under sections 4 to 7 of that Ordinance.

Outcome

Appeal dismissed with costs; compensation to be assessed under Crown Lands Ordinance 1902

Facts

The appellant occupied Lengenny Farm under a 99-year Crown lease. In 1947, the Legislative Council approved a railway realignment scheme between Nairobi and Uplands. The Acting Governor, purporting to act under section 28 of the Crown Lands Ordinance 1902, authorized the High Commissioner for Transport to exercise the Governor's powers under sections 24 to 28 of that Ordinance. The High Commissioner for Transport entered upon 8.37 acres of the appellant's farm and constructed railway works. The respondent offered compensation calculated under the Crown Lands Ordinance (Sh. 11,450 for disturbance and damage, nothing for the land itself). The appellant contended that compensation should be assessed under section 8 of the Railway Ordinance 1927, which would include the value of the land. The appellant estimated the land value at £450 per year or £4,500 at 10 years purchase. The area was subsequently excised from the lease and an apportionment of rent was made and accepted by the appellant.

Issues

  1. Whether the Governor validly authorized the High Commissioner for Transport to exercise powers under section 28 of the Crown Lands Ordinance 1902.
  2. Whether the High Commissioner for Transport was a 'contractor' within the meaning of section 28 of the Crown Lands Ordinance 1902.
  3. Whether the Governor had inherent power to depute his powers under the Crown Lands Ordinance to the High Commissioner for Transport.
  4. Whether compensation for the entry and use of the land should be assessed under the Crown Lands Ordinance 1902 or under section 8 of the Kenya and Uganda Railway Ordinance 1927.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Delegation of Statutory Powers — Governor's Inherent Power to Depute
Where a statute empowers the Governor to exercise powers or perform duties, the Governor has inherent power to depute any competent official to exercise such powers on his behalf, even in the absence of express statutory authorization, unless expressly prohibited by law.
Crown Lands Ordinance — Meaning of 'Contractor' in Section 28
The term 'contractor' in section 28 of the Crown Lands Ordinance 1902 bears its ordinary meaning and does not extend to include a statutory corporation such as the High Commissioner for Transport who is a servant of the Crown.
Crown Leases — Right of Re-entry under Section 24 of Crown Lands Ordinance
Section 24 of the Crown Lands Ordinance 1902 confers on the Crown as lessor the right to enter upon leased land exceeding 100 acres and construct railways, canals and roads without compensation for the land, but with compensation payable for buildings destroyed or damaged. The expression 'entering upon' land carries with it the notion of taking possession of at least so much land as is occupied by the railway or other public work.
Railway Ordinance — Scope of Section 4 Powers
Section 4 of the Kenya and Uganda Railway Ordinance 1927 does not itself confer power to enter upon and acquire the use of land, but merely sets out the works which the High Commissioner for Transport may execute upon land once lawfully in occupation of it. The power to acquire or resume land must be found in other legislation.
Compensation — Basis of Assessment under Crown Lands Ordinance versus Railway Ordinance
Where entry upon and acquisition of use of Crown leased land for railway purposes is made under section 24 of the Crown Lands Ordinance 1902, compensation is payable under that Ordinance and not under section 8 of the Railway Ordinance 1927. Section 8 of the Railway Ordinance applies only to compensation for damage caused in the exercise of powers under sections 4, 5, 6 and 7 of that Ordinance, which relate to injurious affection to other land or property, not to compensation for the land actually occupied.
Liability of Successor Corporation for Torts of Predecessor
Where a statute transfers all rights, liabilities and engagements of a predecessor corporation to a successor corporation, the successor is liable to be sued in respect of any tort for which the predecessor could have been sued, even if the successor corporation would not otherwise be liable in tort.

Legislation cited (9)

  • Crown Lands Ordinance 1902 s.24
  • Crown Lands Ordinance 1902 s.28
  • Kenya and Uganda Railway Ordinance 1927 s.3
  • Kenya and Uganda Railway Ordinance 1927 s.4
  • Kenya and Uganda Railway Ordinance 1927 s.8
  • Interpretation and General Clauses Ordinance Chapter 1 s.26
  • Kenya and Uganda (Transport) Order in Council 1925
  • East African Railways and Harbours (Transitional Provisions) Act 1948 s.11
  • Indian Land Acquisition Act 1894

Cases cited (6)

  • Attorney General v de Keysers Hotel [1920] AC 508
  • Carltona Ltd v Commissioner of Works [1943] 2 All ER 560
  • Corsellis v London County Council [1908] 1 Ch 13
  • Beauchamp v Great Western Railway Co (1868) 3 Ch App 745
  • Rangely v Midland Railway Co (1868) 3 Ch App 306
  • Wilkinson v Hull Railway & Dock Co (1882) 20 Ch D 323

Full judgment

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Hubble v Commissioner for Transport (Civil Appeal No. 49 of 1951) [1952] EACA 97 (1 January 1952)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.