Africans-credit control-Charge over land granted by African to non-African and registered-Registration of Titles Ordinance, Cap. 160, section 46-Indian Transfer of Property Act, 1882, section 58 Whether charge a simple mortgage-Credit to Africans (Control) Ordinance, Cap. 104, section 2 (1) (b)-Whether contract enforceable.
Case summary
The defendant, who was an African, was the registered proprietor of a piece of land situated at Maweni Kisauni in the Province of Seyidie. On 4th July 1952, the defendant executed a charge over his land in favour of the plaintiff, who was a non-African. The charge was in the form presented by Schedule J(I) of the Registration of Titles Ordinance (Cap. 160) to secure repayment of an advance of Sh. 12,000 and interest thereon. The principal sum was repayable on 3rd July 1953, but not repaid, nor had interest been paid since 1st January 1954. The plaintiff sued in 1955 for judgment for the amount of the principal sum and interest due to him and for an order for the sale of the piece of land charged, if the defendant failed to pay within a time to be fixed by the Court. As a sole defence, the defendant pleaded that the Court had no jurisdiction nor was the contract enforceable because of the provisions of the Credit to Africans (Control) Ordinance (Cap. 104), section 2(1)(b).
Held (29th May 1956):
The charge was a simple mortgage as defined by section 58 of the applied Indian Transfer of Property Act, 1882.
By default of payment, the defendant did not lose any right to redeem the property, because under the charge, the ownership of the land had remained vested in him and had not passed to the plaintiff. If the default continued, the property charged might be sold to answer the amount in the charge, but the land charged did not pass to the chargee nor had it ever been vested in him.
A charge under the Registration of Titles Ordinance (Cap. 160) is outside the scope of section 2(1)(b) of the Credit to Africans (Control) Ordinance (Cap. 104).
Referred to: Halsbury, Laws of England, 2nd edn., Vol. 23, 227.
