of Land governed by the Local Law- The lands of the plaintiffs in the island of Mombasa, part of the dominions of the Sultan of Zanzibar, were taken for a railway by the British Government under s. 6 of the Indian Land Acquisition Act, 1894, which had been brought into force in Zanzibar by Order in Council. In a suit for compensation for the value of the lands so taken, and also of the buildings previously erected thereon by the said Government without authority: Held, (1.) As regards the lands, the plaintiffs are entitled under the said Act to the market value thereof at the date of service of notice, under s. 6, including such actual speculative advance therein as had already taken place in consequence of the railway scheme; but excluding any future speculative advance from the like cause. (2.) As regards the buildings, English law applied under the Order in Council of 1884 and the subsequent treaty of 1886. By that law, notwithstanding treaty rights of exterritoriality, the lex loci rei sita governs the incidents of land, that is in this case Mahomedan law, of which law a Zanzibar judge has judicial cognizance. (3.) By Mahomedan law the houses did not become the plaintiffs' property. The plaintiffs are entitled to have them removed, and the value to them of the right to have them removed from lands which have ceased to be their property is the measure of the compensation due. APPEALS and cross-appeals by special leave from a decree of Her Majesty's Court for Zanzibar, dated November 28, 1898, varying in favour of the respondents a decree of the East African Protectorate Court at Mombasa (July 21, 1897). These decrees purport to assess the compensation payable by the Secretary of State to the respondents for certain lands compulsorily acquired by the Secretary of State on November 2, 1896, under the circumstances stated in their Lordships' judgment, for the construction of a State railway from Mombasa to Uganda. The Indian Land Acquisition Act (I of 1894) was, under the provisions of s. 8 of the Zanzibar Order in Council of 1884, extended and made applicable to Zanzibar on May 27, 1896, which was after the Government had taken possession of the said lands. At the hearing of the cases referred by the Collector in consequence of compensation claims, the judges of the Mombasa Court tried the cases on fresh evidence, and decided them on the merits. He found that the railway engineers had, in the carrying out of their work of construction, ignored all rights of private ownership, had treated the land as being theirs, and had nearly completed the most important of the railway buildings before taking any steps to acquire the land. He considered that if the English law governed the cases it was undeniable that the buildings erected on the said land by the Government, before any steps were taken to acquire the same, would have become the property of the owner of the land, and would have, if taken from him, to be acquired upon a proper valuation of the same. He agreed that under the 16th article of the Zanzibar Treaty of 1886 British subjects are to enjoy within the dominions of the Sultan of Zanzibar the rights of extra-territoriality, and that under s. 8 of the Zanzibar Order in Council, when the Indian law did not apply, the law to be applied, so far as circumstances would admit, was to be the common and statute law of England. But he held that this did not affect disputes as to land, all questions as to which were to be decided by the lex loci rei sitæ, and that therefore the local law must apply. He laid down that to himself, an English judge, the local law, which was the Mahomedan law, must be proved by experts, and he referred to the evidence given before him by two of the Sultan's cadis or judges from Zanzibar, and he proceeded as follows: "Their evidence is conclusive that in a case such as the present the landowner cannot claim possession of buildings placed upon his land by a trespasser, but can only call upon the trespasser to remove the buildings and restore the land to its original state. They gave their evidence well and referred to text-books." He then came to a finding as to the boundaries and values of the plots. In appeal the Zanzibar Court held that by virtue of the Zanzibar Treaty of 1886, and of the Zanzibar Order in Council of 1884, s. 8, the English rule of law applied, and the owners were entitled to be paid for the buildings which had been erected on their land while the same was their property and were standing thereon when the land was in fact acquired by the Government, and they assessed the value of the said buildings at the actual cost of their erection as shewn in the Government books. Their main reason for holding that English law applied was that the principle of extra-territoriality established by the Zanzibar Treaty of 1886 introduced that law into Zanzibar. They said: "In the words of the treaty of 1886, subjects of Her Majesty enjoy, as regards their person and property within the dominions of His Highness the Sultan, the rights of exterritoriality. What is the meaning of that word? It seems to us a separation of persons enjoying that right and their property from the country in which they are; that is to say, that British subjects are justiceable by their own laws and their property subject to the law which would govern them in their own country. This Court has always acted on that principle, gifts inter vivos, contracts, torts, wills, and intestacies being thus construed (as in India) of Christians, Mahomedans, Hindus, Parsees, &c. It has never been contended that there is a general restriction as by Mahomedan law on testamentary power, or that the rules of that law govern succession. In connection with this, we regard Arts. XVIII, and XX. as merely instructions to the Consul that he should act in such a manner in his official capacity when occasion arises. 66 Exterritoriality involves confusion and differences, and we think the difficulty suggested to the mind of the learned judge might be removed by the practice of this Court, which regards easements as running with the land-i.e., a British subject buying a house overlooking the private apartments of an Arab would be restrained by injunction from opening up windows overlooking them. The Order in Council, in our opinion, when it says the common and statute law of England in force, cannot mean that Mahomedan law applies: moreover, the principle of 'lex loci rei sita' is one of international law, within the pale of which at the time of the Order in Council it is doubtful if Zanzibar had entered." The Attorney-General (Sir R. B. Finlay), The Solicitor-General (Sir E. Carson), Mayne, and Sutton, for the appellant, contended that the question of the respondents' claim to compensation in respect of the buildings must be governed by the Mahomedan and not by the English law. Reference was made to art. 16 of the Zanzibar Treaty of 1886, and to ss. 8 and 21 of the Zanzibar Order in Council of 1884. With regard to the article of the treaty, they contended that on its true construction, and having regard to arts. 18 and 20, it does not impair or qualify the rule that questions and rights of parties relating to land must be governed by the lex loci rei sita where, as in Zanzibar, there is an existing system of law in force and actually regulating those rights. With regard to rights of exterritoriality such as are claimed for ambassadors and ships, the reason of those rights is solely that of convenience' They are founded on the inconvenience or impossibility of administering law and justice to foreigners under some circumstances in particular places and according to the general law of the country where they are. The doctrine is not to be pushed further than necessity requires. Even if English law applied, the principle of English law is that the local law must be resorted to. Again, under the sections of the Order in Council, the applied Indian Acts are to take effect as if Zanzibar were a district in the Presidency of Bombay. In that view British Indian law applies, and by British Indian law the Courts must in such a case as this resort to Mahomedan law: see 2 Phillimore's International Law, p. 221. The plaintiffs have no equitable claim. When they bought the land it did not include the railway buildings. They did not pay for those buildings, and they knew when they bought that the Government were erecting, or were about to erect, such buildings. On the evidence the Zanzibar Court was not justified in awarding any larger sum than the Mombasa Court had awarded. The Court was not justified in regarding prospective value; it should limit its consideration to the actual value on November 2,1896: see Stebbing v. Metropolitan Board of Works (1), where it was held that the value of land is to be assessed on the principle of compensation to the owner, making good to him the value thereof actual or potential when taken; s. 24, clause 5, of the Indian Act I. of 1894; Balfour Browne's Law of compensation, Appendix, p. 718; Penny v. Penny. (2) Haldane, Q.C., and Branson, for the respondents, contended that the Zanzibar Court was right in holding that the that the English law applied, and buildings in question, when erected upon the respondents' land, became the property of the respondents so as to entitle them to be paid for the same as the owners thereof. They relied on the 5th and 16th articles of the treaty of 1886, and on the rights of exterritoriality thereby conferred, and also on s. 23 of the Order in Council of 1884. It is not shewn that Mahomedan law applies; if it did it does not help the appellant. Reference was made to Mosley's Digest, Introduction, pp. 231, 237, and 267, and to the Hedaya, vol. 3, tit. "Usurpation," bk. 37; where it is said that the right of a landowner under Mahomedan law is to the land with the buildings on it on paying for the value. He is entitled to require that the buildings be left on the land: see Thakoor Chunder Poramanick v. Ramdhone Bhattacharjee (1), where it was laid down as a general rule, Mahomedau and other authorities being cited, that if he who makes the improvement is not a mere trespasser, but is in possession under any bonâ fide title or claim of title, he is entitled either to remove the materials, restor ing the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil -the option of taking to the building or allowing the removal of the materials remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate which he may possess. But the main contention for the respondents is that English law applies, under which the buildings erected by a stranger without authority belong to the owner of the land. Το hold that English law means the lex loci, which in its turn means Mahemedan law, and that a treaty which provides for rights of exterritoriality leaves all the incidents of landed tenure as intra-territorial as they were before or without the treaty, is to deprive language of a definite meaning. It has been contended on the other side that nothing is to be taken into account beyond what is permitted on the authority of Stebbing v. Metropolitan (1) (1866) 6. Suth, W. R. 228. Board of Works (2), from which case the respondents do not differ. But here the railway has been made and the station erected, and trade facilities in the district are largely increased. The actual present market value of the land has increased in consequence and had done so on November 2, 1896. That is a permissible ground for enhancement of compensation, and one of which the respondents are entitled to the full benefit. Counsel for the appellant were not heard in reply. The 16th, February 1901. The judgment of their Lordships was delivered by LORD HOBHOUSE. of compensation to be paid for land in These appeals relate to the amount the island of Mombasa, taken by the Government under statutory powers. The suits were commenced by two claims lodged with the Collector by the firms of Charlesworth Pilling & Co. and T. D. Charlesworth & Co., who were respectively owners of different plots of the land so taken. The Collector, Mr. Craufurd, who was also acting awards which the plaintiffs did not on behalf of the Government, made accept, and which, therefore, were referred to the Consular Court of Mombasa. The Vice-Consul, Mr. Cator, dant has not disputed. But the plainawarded larger sums, which the defentiffs were still dissatisfied, and they appealed to the Court for Zanzibar. The Court again enhanced the amount of compensation, with the effect that both from the decrees. There are, therefore, parties are dissatisfied and both appeal four appeals, two original and two crossappeals, in the two suits. They have all been consolidated, and have been argued as one case falling under the same considerations, with the exception that is peculiar to one plot belonging to one important item of claim (2) L. R. 6 Q. B. 37, 45. Charlesworth, Pilling & Co. Mombasa is a small island adjacent to the coast of continental Africa, and it forms part of the mainland dominions of the Sultan of Zanzibar. The authorities who have dealt with this case are established and regulated by Her Majesty's Order in Council passed in 1884 and founded on a previous treaty; and by a subsequent treaty with the Sultan of Zanzibar in the year 1886. There have been later transactions between the Sultan and an English company and the Queen, which are referred to in the judgment of the ViceConsul and in the case lodged by the defendant, the Secretary of State. They confer on the Queen's Government extensive powers of administration during the continuance of existing agreements. But they are expressed not to affect the Sultan's sovereignty, and for the purpose of deciding questions of an international character in these suits, they have not been discussed in the Courts below, and need not now be discussed. The order in Council dated October 17, 1884, is founded on the usual form of recital that by treaty, grant, usage, sufferance, and other lawful means, Her Majesty the Queen has power and jurisdiction in relation to Her Majesty's subjects and others within the dominions of His Highness the Sultan of Zanzibar. The passages material for the decision of the present questions will be found in ss, 6, 7, and 8. Section 6 shows that the order applies to British subjects in Zanzibar, to British ships in Zanzibar waters, to Zanzibar subjects and foreigners in specified cases, and to British protected persons in so far as by treaty or the other means mentioned Her Majesty has jurisdiction in Zanzibar in relation to them. "Sect. 7. All Her Majesty's juris diction exercisable in Zanzibar under the Foreign Jurisdiction Acts for the hearing and determination of Criminal and civil matters...shall be exercised under the provisions of this order, so far as this order extends and applies. Section 8(a)... Subject to the other provisions of this order, and to any treaties for the time being in force relating to Zanzibar, Her Majesty's criminal and civil jurisdiction in Zanzibar shall, so far as circumstances admit, be exercised on the principles of, and in conformity with, the enactments for the time being applicable, as hereinafter mentioned, of the GovernorGeneral of India in Council, and of the Governor of Bombay in Council,... and so far as such enactments,...are inapplicable, shall, so far as circumstances admit, be exercised under and in accordance with the common and statute law of England in force at the commencement of this order. (b)... declares certain Indian enactments not affecting this question to be applicable to Zanzibar. |