Question 3 a) Explain following terms:

i-

Public terminal

Definition public terminal according to National Land Code section 387 is foreshore, a river, railway station or public road.

ii-

Right of way

Right of way was instruction from the Land Administration. Land Administrator create right of way over land (any land) which shall be known as Land Administrators right of way and he will run the land and binding on lands proprietors and occupiers for time being.

iii-

Express grant

Grant that is clear on grant permission from proprietor to other land proprietor to used the land. Express grant is subject to condition of time being (servient land). According to subsection 1 of 284 National Land Code, there is no such right in nature of an easement acquired by prescription. This is because the presumption of a grant from long and uninterrupted user.

b) Mr. Omar owns a piece of country land separated from main road by another piece country land belong to Mr. Hamid. Mr. Hamid allows him to use his land to access to main road for decades. However, no easement or right of way was created. Mr. Hamid later sold the land to Mr. Jamal. As a new owner to the land Mr. Jamal fenced his land and therefore block the access. Discuss wether Mr. Jamal can fence his land and block the access? What can Mr. Omar do to get access to the main road?

Mr. Jamal can fence his land because as proprietor he can enjoy his land by doing anything he intent to because according to section 92 NLC, title confer to that person which is Mr Jamal shall be indefeasible. Mr. Jamal can block the access because not right in nature of an easement shall be capable of being acquired by prescription as stated in section 284.

In order Mr. Omar to pass through Mr. Jamal land to main road, Mr. Jamal have to give express grant to Mr. Omar for easement to pass through. Mr. Omar can discuss and discretionary to Mr. Jamal where Mr. Jamal can apply using Forms 17A for express his grant according to section 286. Additional according to section 288, Mr. Jamal have to grant Mr. Omar a grant right to carriage-way therefore any vehicle can get passed through Mr. Jamal land. If Mr. Jamal grant right of footway, vehicle is prohibited to cross his land.

After Mr. Jamal (servient land) express his grant, Mr. Omar (dominant land) can enjoy using the easement but come together with terms of years in existence date registered. This terms of years depend on Mr. Jamal interest (grantor) Mr. Omar make agreement with Mr. Jamal then have to take responsibilities in cost of construction, maintaining or repairing the way, wall, drain or other installation or work forming subject matter of easement according subsection 4 of 286 National Land Code.

In other hand land was country land then Mr. Omar can apply in creation of right of way in order to passed through Mr. Jamal land to main road according to section 390 National Land Code. Mr. Omar can apply using Form 28 A for the creation of a private right of way. Private right of way created for the proprietor or occupier of alienated land shall authorize the proprietor or occupier as the case may be and persons acting with the express or implied consent of the proprietor or occupier to pass and re-pass between the land and a public terminal. Cost of survey, construction, maintenance and repair should be cover by Mr. Omar.

However, under subsection 3 Land Administrator will make investigation he satisfied then he will decide which one should be create either public right of way or private because the right of way to run on land (Mr. Jamal land) located near to public terminal which is main road. Creation public right of way will not cost Mr. Omar survey, construction, maintenance and repair fee because it pay by State Authority.