Principles

·  Land Settlement and Registration—Registrar General—Power to correct error in register—- land Settlement and Registration Ordinance, 1925, s 89 (6) Land Settlement and Registration—” clerical error “—Land Settlement and Registration Ordinance 1925, s. 89 (6)—Definition

  An inaccurate transliteration of an English name to Arabic characters in a land register, not based on documents showing the identity of the person claming to be the registered owner, is a “clerical error” within the meaning of Land Settlement Registration Ordinance, 1925, s. 89 (6), and the registrar
* court M.A. Abu Rannat C.J. and B. Awadalla J.
is empowered to correct it. An error of this type need not be corrected by the
Courts under section 85 (6)
 

Judgment

Advocate: A. M. Atabani ……………………………………………………. for applicant

Babiker Awadala J. March 27, 1962: This is an appeal by the administrator of the estate of a certain G. P. Lorando, made under Land Settlement and Registration Ordinance, s. 97, against the order of the Registrar General of Lands dated February 27, 1961, purporting to have been made under section 97 (2) of the Ordinance, and ordering the removal of the name of the said administrator from the register of Plot No. 1, Gubbat Khogali, Khartoum North.

The plot in question, comprising an area of 15.257 feddans, was registered on February 3, 1909, by decision of the Settlement Officer, in the name of El Khalifa El Amin and his co-owners. On the same day. an undivided half-share of the said plot was transferred to the name of a certain Arakli Kafadia in accordance with the decision of the court in CS-158-1908, Khartoum. On November 9, 1911, the said Arakli Kafadia presented to the Registrar of Lands a petition in English, admitting that his share in the land was owned by him jointly with a certain Mr. J. F. Luard in equal shares, and authorizing the insertion of the name of Mr. Luard as a joint proprietor to that extent Of the share held by him. On November 11 1911, the Registrar of Lands authorized the necessary alteration upon the register. His order, also made in English, clearly show that the name of the new joint proprietor was J. F. Luard. The register of the plot (which had its basis in the 1905 Ordinance) was kept in Arabic, and the t relevant entry pursuant to the deed of transfer, a transposition of the Arabic characters (? ) and ( ? ) occurred in the surname of the transferee, thus making it readable as “Lurand” instead of “Luard.” On the coming into force of the 1925 Ordinance, a new register was prepared in accordance with section 2 (3) by preparation of a copy of the old register, but the mistake was repeated.

 On February 12, 1959, advocate Ahmed Zein El Abdin applied for a certificate of search in respect of this share and a certificate was accordingly issued, with the name written in Arabic exactly as it appeared on the register. This certificate is now to be found in the file of HC-EST-17-1959, relating to the estate of G. P. Lorando. The procurement of this certificate, no doubt made under a misapprehension that the deceased was a proprietor, was the start of the confusion.

 On September 26, 1960, a letter was written in respect to the said estate, addressed to the Assistant Registrar of Lands, Khartoum, in the following form:“

   KHARTOUM HIGH COURT

September 26, 1960.

Estate of G. Lorando

HC-EST-17-1959

A/Registrar of Lands, Khartoum

 Kindly let us have an estimate of the value of the 7.628 feddans registered in undivided shares in the name of the above-named deceased in Sagia 1,Gubbat Khogali, Khartoum North.

                                                                                                                         (Sgd)

For/Judge of the High Court”

The Assistant Registrar replied to this letter on September 27, 1960, as follows: “Reference your letter EST-17-1959 of September 26, 1960, I am to inform you that the share of G. P. Lurand in Sagia No 1,Gubbat Khogai, the area of which is 7.628 feddans in undivided shares, is estimated at a sum of £S.1,800.000m/ms.”

The writing, in the said letter of the name of the proprietor as “Lurand” instead of “Lurad,” as it was already wrongly entered on the register, certainly added to the confusion, and made the chances of detection of the mistake far more remote.

Letters of administration in the said estate were granted to P. G. Lorando (applicant), and on January 27, 196o, he wrote to the Registrar of Lands, Khartoum, as follows:

“By Hand

Khartoum, January 27, 1960

      The Registrar of Lands,

Khartoum

Dear Sir,

Re HC-Estate-17-1959

Having been appointed administrator of the above estate by His Honour the judge of the High Court, Khartoum Circuit, by virtue of this appointment, I beg to apply to register the share of my late father, G. Lorando, in the Sagia No. 1 of Guba Hogiali into my name, as I am the only heir and administrator of the estate of my late father.

Yours faithfully,

(Sgd.) P. G. Lorando.”

It was pursuant to this application that entry No. 5 on the register was made,. Transferring the title to the share in question from the name of G. F. Lurad to that of “Lorando.” The way this transfer was carried out by the official concerned affords the best example of how a land register should not be dealt with. The writing was in Arabic and the initials of the original proprietor, although they clearly appear on the original entry as ? ? ,were carelessly scribbled in entry No.5 as ? ? The initials of the. Transferee (i.e., applicant) were also shown as? ? although the letter, vide which application was made, shows that appellant had only one initial, “P”, and this in Arabic could only be written as ?

 Some time prior to February 9,1961, the Registrar General of Lands seems to have had information from a person or persons, hitherto undisclosed, that the original proprietor was in no way related to appellant, and the Registrar General of Lands on that date wrote to the honourable judge of the High Court inquiring whether P. G. Lorando and J. F. Luard were two names for the same person. On February 16, 1961, the honourable judge of the High Court replied that the name of the deceased was Gerassimos Panaghis Lorando and that the name of the administrator was Panaghis Gerassimos Lorando, and referred the Registrar General of Lands to appellant for the information. On February 21, 1961, appellant was summoned, but apparently he made no assertion that “Lorando” and “Luard” referred to one and the same man.

  The order now appealed against was made and conveyed to appellant by letter dated February 27, 1961. Pursuant to this order, entry No. 7 was made in the register. Vide this entry, the name of the original proprietor was not restored as it was before but was written in English as J. F. Luard in order, on the one hand, to eliminate the chances of a similar future mistake, and, on the other, to make the register comply with the original transaction as evidenced by the English letter of Mr. Arakli Kafiadis.

It is against this order that this appeal is now being made. Before going into the substance of the appeal, I would like to dispose of a purely formal matter which was raised before us by advocate Atabani, viz., the relevant provision in the Ordinance under which the order complained of was made. The order itself says that it was made under section 97 (2), but later on—in answer to a query on behalf of the court by the Chief Registrar of the Judiciary—respondent (the Registrar General of Lands) said that the relevant provisions under which the matter was handled were sections 86 and 89 (subs s. (6) and (13)). There is no doubt that none of the sections referred to appears to be relevant save section 89 (6), and it is therefore assumed in favour of respondent that he was dealing with the matter under that section. What is important is not what the respondent thought his powers were at the material time but what in fact they were. Sayed Atabani argues that subsection (6) of section 89 is not at all applicable because it only deals with the correction of clerical errors and errors of a like nature in the register. He contends that clerical errors can only mean errors in spelling and that it would be highly dangerous to the principle of registration of titles if the words are given such a wider meaning as to enable the Registrar General of Lands to substitute one name for another. The courts he goes on to argue, have a wide jurisdiction under section 85 to correct errors or omissions, and therefore it would be only proper to leave the matter to them in case there is any doubt that the mistake may not be a clerical one.

 The respondent in reply said that it cannot be seriously doubted, on inspection of the deed of 1911 and the entry made in pursuance of that transaction that the error was a clerical one, and as such it was within his powers to rectify it.

I would like to state from the outset that here we have two mistakes:

i.                     the mistake in writing the name of “Luard” as “Lurad” in the original register of 1911, which crept into the 1925 register, and.

ii.                   The mistake of striking out the name of “Luard” as wrongly written and inserting the name of appellant “Lorando” in its stead.

 To my mind there is no relation whatsoever between the two mistakes. It may be that the word “Lurad” when written in Arabic would bear a resemblance to the word “Lorando” which the word “Luard” does not; nonetheless, there was nothing to prevent the second mistake occurring, even if the original entry were correct.

The respondent (by his order of February 27, 1961) treated the two mistakes as one for the purpose of correction, and so dealt with them Jointly In the order referred to. He would certainly be right only if both mistakes were clerical errors or errors of a like nature, within the meaning of section 89 (6). But as appellant is interested only in the question of the removal of his name from the register, it is assumed that he is not concerned with the first mistake of 1911”, and so in dealing with the matter, I am going to confine myself solely to the second mistake.

The phrase “clerical error” is not defined in the Ordinance and the learned advocate ‘for appellant seeks to confine it to mistakes in spelling. In my view that would be restricting the meaning of the phrase to very narrow limits. I think in ordinary speech the phrase would embrace any mistake that is the result of oversight or unthoughtfulness on the part of anyone performing the functions of a clerk. It is any slip or mistake by the hand that makes the writing and not by the mind that dictates it.

  In I Bouvier, Law Dictionary 505 (3rd rev., Rawle, 1914), the phrase is defined as “An error made by a clerk in transcribing or otherwise.” Corpus Juris, Secundum, an encyclopedia of American law, gives a long list of definitions based on cases decided in America:

(… a mistake in copying or writing; a mistake which naturally excludes any idea that its insertion was made in the exercise of any judgment or discretion, or in pursuance of any determination; an error made by a clerk in transcribing, or otherwise, which must be apparent on the face of the record, and capable of being corrected by reference to the record only”: (1939) 14 C.J.S. 1202.

Guided by these definitions, it may be evident that the phrase covers a much wider range of errors than is contended by the learned advocate for appellant. It can safely be said, in so far as the register is concerned, that apart from fraud, the phrase covers any interference with the register which is not backed by any instrument or is not in accordance with the instrument to which it relates. This is because any such interference can be due to nothing but sheer oversight or unthoughtfulness, and that is what happened in the case under consideration. In this case, the change from the name of the original proprietor to that of appellant purports to have been made pursuant to an application under section 68 (I), which reads as follows:

   “Whenever a proprietor of land or of a charge, not being a Muslim, shall die, the representative of the deceased proprietor appointed by the court shall apply to the registrar for registration of himself as proprietor in his capacity as representative of the deceased and shall produce for registration an authenticated copy of the order of the court appointing him such representative.”

No document was produced to the registrar to show that appellant had been appointed a representative of a deceased proprietor, and this would’ have been very easy to detect if the application by appellant dated January 27, 1960, had been examined with the least care or thoughtfulness. As such, the change in the register made pursuant to that application is one not backed by any instrument and is therefore nothing but a clerical error.

 This brings me to the second point raised by the learned advocate for appellant, and that is, assuming the error was a clerical one, the mistake in this case ought to have been left for rectification by the courts, which have a concurrent and much wider power under section 85 of the Ordinance. Here again I find myself unable to agree with the learned advocate for appellant. I think the register would certainly lose all its efficacy if its sanctity is exaggerated to such an extent that it would take a civil suit to correct clerical errors occurring therein. It would certainly be in the interest of everyone that the rectification of clerical errors, of whatever nature they may be, in the register should be left to the registrars themselves rather than the courts.

This application is therefore dismissed with costs.

M. A. Abu Rannat C.J. March 27, 1962:—I concur.