Wakilii

Salim v Shatry (Civil Appeal No. 29 of 1938)

East African Court of Appeal · [1940] EACA 32 · 1940 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from subordinate court judgment dismissing action for possession and mesne profits
Decision
Appellant granted possession of the land; respondent's counterclaim for compensation dismissed; respondent entitled to remove materials erected by him

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that subordinate courts have jurisdiction to try suits for possession of land where the value is within their pecuniary limits, declining to follow Mohamed Moti v Shariff Mohamed. On the substantive issue, the Court held that where an Indian Applied Act fits the case, it displaces Mohamedan Law as the governing law. Section 108(h) of the Transfer of Property Act 1882 applied to this tenancy, giving the lessor the option either to retain the building on paying compensation or to permit the lessee to remove it. The landlord was entitled to possession without paying compensation where he did not claim the materials.

Outcome

Appellant granted possession of the land; respondent's counterclaim for compensation dismissed; respondent entitled to remove materials erected by him

Facts

The appellant, a minor represented by his guardian, was the registered owner of a plot of land in Mombasa valued at Sh. 1,400. He let the land to the respondent for building at a monthly rent of Sh. 2. Both parties were Arabs. The respondent erected a wattle and daub hut on the land and paid rent regularly from month to month. The appellant served notice to quit terminating the tenancy on 31 December 1937. The respondent held over after the notice expired. The appellant sued in the Resident Magistrate's Court for possession and mesne profits. The respondent defended on the ground that Mohamedan Law applied, under which he was entitled either to remain in possession on payment of rent or to be paid the value of the hut. He counterclaimed for Sh. 1,000 as compensation. The trial court held that Mohamedan Law governed and dismissed the suit, leaving the counterclaim undecided.

Issues

  1. Whether a subordinate court has jurisdiction to entertain a suit for possession of land where the value of the land is within the pecuniary jurisdiction of the court.
  2. Whether Mohamedan Law or the Transfer of Property Act 1882 applies to a dispute concerning a tenancy of land in Mombasa between Arab parties.
  3. Whether a landlord is entitled to eject a tenant who erected a hut on leased land without paying compensation for the structure.

Orders

  • Appeal allowed.
  • Judgment for the plaintiff (appellant) for possession of the land.
  • Judgment for mesne profits.
  • Judgment for interest.
  • Counterclaim dismissed.
  • Costs of the appeal and in the lower court awarded to the appellant.

Rules and key headnotes

Jurisdiction of Subordinate Courts — Real Actions for Possession of Land
A subordinate court has jurisdiction to try a suit for possession of land subject to the value of the land being within the pecuniary jurisdiction of the court, and the phrase 'full jurisdiction over all persons in all matters' in the Courts Ordinance is not limited to actions in personam.
Jurisdiction — Objection Raised for First Time on Appeal
Where a court has no jurisdiction over the subject matter of the litigation, its judgments are void and may be declared void by every court in which they are presented; jurisdiction cannot be conferred by consent or waiver, and the point of jurisdiction may properly be taken for the first time on appeal.
Application of Indian Applied Acts — Primacy over Mohamedan Law
Where an Indian Act has been applied to the colony by Order in Council and fits the circumstances of the case, that Applied Act governs the dispute and displaces Mohamedan Law, even where the land is situated in Mombasa and the parties are Arabs.
Leases — Tenant's Right to Remove Fixtures
Under section 108(h) of the Transfer of Property Act 1882, a lessee may remove anything he has attached to the earth during the continuance of the lease, provided he leaves the property in the state in which he received it; the option to retain the building on payment of compensation or to allow removal lies with the lessor, not the lessee.
Leases — Rights and Liabilities of Lessor and Lessee
Where a lease of immovable property is made by oral agreement accompanied by delivery of possession, and there is no contract or local usage to the contrary, the rights and liabilities of the parties are governed by section 108 of the Transfer of Property Act 1882, including the lessee's right to remove fixtures and the lessor's option regarding compensation.

Legislation cited (8)

  • Courts Ordinance 1931 s.18
  • Civil Procedure Ordinance s.12
  • Transfer of Property Act 1882 s.105
  • Transfer of Property Act 1882 s.106
  • Transfer of Property Act 1882 s.107
  • Transfer of Property Act 1882 s.108(h)
  • Kenya Order in Council 1921 Art.11
  • Land Titles Ordinance

Cases cited (18)

  • Mohamed Moti v Shariff Mohamed (9 E.A.L.R. 137)
  • Secretary of State for Foreign Affairs v Charlesworth Piling and another [1901] AC 373
  • Rajlakshmi Dasee v Katyayani Dasee (38 Cal. 639)
  • Romeo Antao v Mubarak Bukhait (7 E.A.L.R. 152)
  • Shariff Ali bin Mohamed v Abdulmajid bin Mwijabu (12 K.L.R. 53)
  • Thani bin Ali El-Khasibu v Mohamed bin Rashid (Civil Appeal No. 16 of 1924)
  • Abdulla Kanji v Wakf Commissioners (8 E.A.L.R. 182)
  • Lewis Fernands v Joseph & Son (8 E.A.L.R. 99)
  • Anwar Ali Bepari v Jamini Lal Ray Chaudhuri [(1939) Cal. 254]
  • Edward Powys Cobb v Rashid bin Salim (2 E.A.L.R. 35)
  • Ibrahimji Allibhoy v Mwenye Shimbwa and others (4 E.A.L.R. 3)
  • Jaffer Dewji v Mohamed bin Abdulla and another (6 E.A.L.R. 170)
  • Barton v O'Swald and Co. (Z.L.R. 1868-1918 p.420)
  • The Wakf Commissioners for Zanzibar v Walho Ranwhor (Z.L.R. 1868-1918 p.227)
  • Naser Karenisy v Ahlarakhia Dadani (Z.L.R. 97)
  • Ladha Hasham v Suleman Naihoo (Z.L.R. 184)
  • Poramanick's case [(1866) 6 W.R. 228]
  • Angammal v Aslami Sahib [(1915) 38 Mad. 710]

Full judgment

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Salim v Shatry (Civil Appeal No. 29 of 1938) [1940] EACA 32 (1 January 1940)
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.