19890210 TZHC Dar es Salaam1

IN rfl!E HIGH OOUnT OF TAflZllNIA AT DAR ES SALL<\M '. • CIVIL APP~ NO.5OF 1 1987 I ' (Origipal RM Civc Caso No. 162/1978 at Kisutu JV.f's Court DSM) ALUMINIUM AFRICA LTD o •·• • • • • • • • • • • • • • • • • • • ·• • • • • • • , • . ~.-..• •••• APPELLANT versus ADIL lu3Dl\LLAH DIIIYEBI ooo••••••••••••••••••••••••••••••••••••RESPOlffiM JUDGMENT KY.ANDO, J • This • appeal a.rises from the judgment wd docrcc of the Resident Ma.gi~trateis Court of Dar es Salaam, at Ki.sutu, (Cb.c.cha RM) whereby the ~espondent, ADIL .ABDALLAfI DHIYEBI, Who was the plaintiff at the trial, was declared the rightful owner of Plot 4511.. Upanga, Dar 0s Sala.am, as e.,gainst the .. appellant, ALUMINIUM AFRICA LIMITZD, the defend.ants at the trialo On appeal the appellant Aluminium AJ;rioa Ltd, was represented by Mr•' N0 S,, Patel, learned advocate, and the respondent by Nr,. Ra.i thatha, · learned advocate., In the Court below Mr. Patel rep:resen-ted the a.ppellwt also while_ the respondent was represented by Mr. Rahim, learned advoca:~e-, The matter is a rather old one~ It centres on Plot No~451 Up:.mga., Dar es ,Salaame It is common ground that the whole of this plot was origina} owned by the respondent~s father, since 19~8 to be specific~ In 1970, at the request of the respondent, tpe Plot wasi split into -two: 451A and 451B~ The decision· was effected or approved by the Ministry of Lands., Respoj:lden-t 1 father occupied Plot 451B while the land al.locating authorities allocated tc the respondent Plot 451Ao Due to his failure to develop it, in 1973 tho i I "i Ministry of Lands revoked tho allocation of'. Plot 451!. to the respondcnto i In 1978 the respondcn·:, reapplied for tlle plot and it was allocated to him again on 13a3. 78 by a lotter of offer a copy of wllich was ad.mi tted in evidence at the trial and marked as E:moP: tention at the trialt which contentions the lower court accepted, that after this reallocation of the Plot to hi~ he paid all the fees for a Certificate of Title from the Ministry of L:i.nd.s~ Ile said be also fenced up the plot, bu as hG was doing so, agents (cor.~;ractors) of the appellant .:-.ppea.red on tho Plot and started to demand that he stop fro·:1 continuing wi. th develop□ cnt plans on it. A conflict then arose; polic .. 12..d to be callea. in ·2.nd eventual the matter was ref0rrerl bn.ck to tho Ministry of Landso T!icre it was found · that the app91lant 1 had also bo-.:n allocated -hrn Plot, on 7... 4_, 78, and it was · numbered 101·6.. .\ttcmpta to th.:m resolve thJ mattc·r at tho Ministry fa-'!.lod [ and the respondent decided to file.this act~on in the Resident Mc,.gistratots j Coui-t, so.oki.ng:- ( a.) An injunction to perpetually restrain the defendant (appellant),-· its workmen, serve.nts, and or agents from further or continued acts of encroachril~tt upon and i~terfcrcnce;with the plaintiff's (rcsppndcnt's) rights; : ·.:...' ' . '. (b ) Dar,1a.go s II ( c) Costs of the aotio:1 - 2 - (d) Such further or other reliefs ae the cburt would doen ju.st and ancl expod.ie11t to grant. I Tho evidence for th~ defence w~s rat!J.or ske~chy •. Two i,;i tnesses tosUfied: Bharat Parameswaran •(D1-T1'), tho I:'inancial Controller· of the a~pollant and who had· boon employed by the appellant in 198~j and Pratah\Hariclas -G~~dhi (DW2) afi archi tcct for tl10 appellant., The latter is tho onp wl10 _engaged tho contractor who appeared on ·tho ,Plot as the_ respondent was fcmbing it and :.ie (the .contractor) stopped him from continuing with tho work on tho Plot after this dispute arose. DW1 tendered Ccrtiffoate of Title No.181660/ 44 (Rx11.D1), being evidence that tho Plot was alloc2.tcd t:o the· appellant. The evidence :from the pla.inti:Zf I s/rospondcn~ ts sic.le, 1Jainly by witnesses from tho Ministry of Lands 1 show; that tho area ofi th~Plot (s)Ji' in dispute was resur-vey0d in 1978 1 which resurvey ·resulted in Plot 451.\ dis2.· -::.::;.ring and a new plot~ No.1016, c:oning into existence. Thero is evic.~ence to i_ndicate also that th·e offer to the :respondent was revoked again: sor.ictii:le in 1979 and that that to th0 appella.n,ts was also revoked in 1982. 1~11 this evidence is in rather a state of co!lfusion, but y,hat 'is clear is }hat the grounds for revoking the respondent's offer were fli □ sy. This· led ·~he lean1od trial rn~istrate to declaring the purported revocations as being without effect and he went on to cohsid0r as to whom the Plot (s) should be restored between the respondent and the appellant. He heid that as !tl1e I • resnon'dent • had boon· allocat0d the plot earlier in point of tfrw, on the principle of fiTst cone first served, ·tho Plot was to be rcstor.ed to him ( the I respondent) c.nd be so 0 ordered. The appellants were agriev0d·by this dedsion of the magistrate, hanc_c this appeal • ; . On appeal, Iv'.tr:. Patel I s main. contention is that tlw respondent lied no1; ' ! been al~?catcd the. Plot in dispute at all. He conyendod that E:l:ho P3, the lotter of offer, on which the respondent relied, lln.d not been registered and should not have been admitted. at all in evidence. Without P3, Mr. Patel con- tended, tho respondent had lio evidence that the 1-'- ~ hac;. ever been allocated to him. As for his clients, the appellants, ho contonclod i t:12.t they llad n vc.lid Certificate of Title· giving -them full ri 6hts to tho Plot. _I have giv~12- careful consider2.tion to these argu,,icnt by I,ir., Pa.tole. I am of the view that if bno looks nerely to Exh~P3 I1;r. Patel I s contentions would ?ave clements of validity in them. But to "b., fair, I think it is inportant to. consider tho history of this Plot. I' ·.-ras in possession of tho plaintiff! s/respondcnt 's, fami - ·r ever since 1968. ~1.t i~10 ti Do he obtained Exh. PJ, he had, as shown :abovcr:pai.d all the roquilsi te foes for obtaining a certificate of ti tlc ,fror:1 the Land Office. As is ti[e practice once fees aro paid to tho Land Office for a certificate of ti tlc, it is then for thc'..t office . . to issue one and it takes somctine for it ( the oer\fi_caic) to issue. The fact that by the tir.io the appellants obtained tl.ieir certificate -th" respondent .had none do~s nOi moan thoroforo that. tho ~ospo1'dorit_ -bah ·1ost 1ustntor~s ts_· or rights in ~ho Plote Ifor was 1. t h1.·s fault that rnst~ad of isslng !um with 1 one, the Land Office .1issued instead the a;pellant~ i,1ith a ceriificeto, for tho offer to the rospondc:nt was in. ex:i..st;_u1ce ancl the LdHl Office ,Jas aware of such ; /' !" •••••• /) - 3 - offer., Under the circUil'lstancfS therefore, the 1 arnod 1-lagistrato was right in hold:ing tl1at tho respondent had a valid offer of tte Plot fror:i the Land Office and that ·by ·t;he time the appo11ants wero c1,1locat d tho Plot that offer was in e:µstcmcG and valid. The subeo.quent offer· to tlld appcl12J1ts ( on 7.4. 78)was thcr: • I ' fore null and v.oid in so far:~ plot No.451.:1. was \concerned p,s it was not by the:.1 available to bo offered to the appellants or any iothcr perspn. The Land Office could not ha:ve offered something they no longor Had. I Concerning tho revocations of .1979 2.J1d adcged disaphcarances of Plot I , 451.Ll. a.ftor 1978, those cannot be entertained in t his Court• I 'I'b.c grounds for 1 tho revocations are said to have boon duo to t!10 !disappearance of Plot 451A after resurveys. u,_.. "u,y Sil' ould tl1 e Plot disappear W:ith those surveys, a .Plo~ v.!Jic:1 > I had boon in exist once for years? In ny view Plot; 451 ii. continued to, exist ancl . .• r-·-.... . tho purported revocation of tho ofrcr--·of it"-t.o _thp··rq11pondcnt ha.d-no.va,l;i.QJ._i,-y __ _ ~t:···~11.--- T1.iat Plo:-t "'s"f:iTi":-b·o1;n,ey '!;9 tllc rospondcm~. .. ·rt .is c·oniioriq.cd in tho case' that- during thb: l:lurvcys, . - 0t 1016 -~1 SWP.,"1J r .. ·l up" Plot No.451A, If this is so_, _it would appear; that plot :lfo.1016 1 is. bigg--:-·~· °in sizo and may bo containing pl9t No,451A and ,other la.'1d n~t belonging to -; . :·, /;..." · -~respondent. To make thin~s· __cl0ar; facrcfore, it :lo· diroctcc, and ordered !lcr.) . ·. . .•. I' .. . . . ,. , • .. . ·~- •-~~-• . I • ·that· tho -~.and Offi:q'.<;i;::should dor.i~ato plot Ifo.451A! froo Plot 1016 and hnnd H ·-{?.i;t ·45{}.) -~;er '.eo: the. r6sponciotit •. The roncindor of Plot 1016 should then ' ·• ' . ·: ~ .. ! remain with the i:\ppQllants,-but if it will be found. tb.at Plots 101·6 and 451.:. a~ one antl 'the s'a#o Plot,.. then tho ·wholo of that Piot sboUld bo given to t:~.c . . • 1· . ..,..- Perpetual inj:i,moti~n will tb.on issu_c /to-·t-ostrain the appellants respo_nd0nt. froo encroaching on: Plot No.451a as preyed. The jcarnod Magistrate did not I doom it nooossary to consider ·tlie pr~er for dama,gos and 1 will not go into ' .,hero sil~ce no appeal has been made against non~onsidcration, of the quostio;: of damages. I~-- ~h~ final. ro13\.il t, this a.ppoal f'aiis and, 11 t is dismissed with costs .. lt is so. ordered; i llt/{l;,S-e '. ~ L.I.,A. KY:i1mo ~ i II DAR ES SALLI..\M · 10th iob:ruo.ry,· 1989.