19890210 TZHC Dar es Salaam2

IN :ffiE HIGH COUnT OF TMJWHA .. '- AT DAR ES SALAAM 1I CIVIL APPE.il, NO. 5 OF/ 1987 ' (Origipal RM Civc Caso Noe 162/1978 ~t Ki.sutu Iµl's Court DSM) . I · Af.,tJMINIUM AFRICA LTD o o·• .... • • • ••••••••• o •• '.• •.• ••••••• ~. ·•• • •••• APP~LLANT versus , ·o ll.DIL llilDALL.AH DHIYEBI o o o • ••• ., • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • RESPOlillfflT JPDGUEN'l' This • appeal arises from the jud@ncnt and docrcc of the Resident Ma.gi;trato is Court of Dar es Salaam, at Kisutu, . ( Cb.c.cha RM) whereby the ~espondent, ADIL ABDALLAH DIITYEBI, lib.a was the plaintiff at the trial, wn.s declared the rightful owner of Plot 451Ii. Upa.nga, Dar us Sala.am, a.s ggainst thc_,appellant 51 ALUMINIUM AFRICA LIMITZD, the defend.ants at the trial,:, On appeal. the appellant Aluminium A:t;'rica Ltd, was represented by I'1r, N0 S,, Patel, lea.med advocate, and the respondent by Nr .. Raithatha, · I learned advocate~ In the Court below }lr. Patel represented the appelln.nt also while_ the respondent was represen-ted by Mr. Rahim, learned advoca:~G-, The matter is a rather old one~ It centres on Plot No~451 Upu.nga, Dar es .Salaam., It is common ground that the whole of this plot was original- owned by :he respondent~s father, since 19tj8 to be spe9ific"' In 1970 7 at the request of the respondent, tpe Plot was split into two: 451A and 451B~ 1 The de~ision··was effected or approved by the J:.iinistry, of La.nclso Respoadcn-t 1 father occupied Plot 451B while the land al'locating au,chori ties allocated tc the respondent Plot 451Ao Due to his failUfe to develop it, in 1973 the ._ Ministry of Lands revoked the allocation or', Plot 451L to the respondcnto In 1978 the respondcn-;, reappliecl for tile plot and· it was allocated to him again on 13113. 78 by a letter of offer a copy of wl1ich was a.dmi tted in evidence at the trial and marked as El;:hoP? It was the reoponden,.;::::; co:1- tention at the trial, which contentions the, lower court accepted, tha·t after this reallocation of the Plot to hil'!l he paid all the fees for a Certificate of Title fr~ the Ministry of L.,nds~ lle oaid he ~lso fenced up the plot, bu as he was doing so, a.gents (co:r.,~ractors) of the appellan,~ appeared on the Plot and started to demand that ho stop fro:n continuing with developoent plans on i:t, A conflict then arose; polic,. 1ad to be calloa. in ·and eventual. the matter was ref0rred back to the Ministry of Lands., T:icre it was found ·that the app91lant 1 had. also bo-.:n allocated -610 Plot, on 7,.4,,78, and it was · numbered . 101·6,. :lttompta to th00. resolve thJI mattc·r at th~ }linistry fai.lcd and the respondent decided to file.this act~on in the Resident Ma.gistratots Court, so,9king: - ji .(a) An injunction to perpetually restrain the dcfendent (appellant) t its workmen, servc1.nts, and or agents from f"urthcr or continued acts of cncroac~~tt upon and i~tcrforcnceJwith the plaintiff's (rcsppndent 1 s) rigp.ts; : ·, , ·.;. . . r; . - . (b) Dar,1a.gos . ' (c) Conti - f tl:10 .a.a t\10:1 0. · - 2 - (d) Such further or other reliefs as tho Curt vould deen just and ancl c.xpedie·nt to grant. [ The evidence for the defence w~s rat!J.or sko! cby •. Two l""i tnesscs tosUfied: Bharat Pa.ramcswaran '(DW1'), tho P.ina.nc\al Controller. of the a~pollant _and who had . been employed by tho appellant in 198~, and Pratabi ITaridas -G~db.i (DW2) an_ archi tcct for the appellant.. . The lattGr is the onbI who _engaged . t}:i~ contractor who appeared on·the ;Plot as the. respondent was fenping it and ::ie (the .contractor) stopped hili1 from continuing with the work o"n the Plot after -this dispute arose. DW1 tendered Certificate of Title No.181660/ 44 (t<~x11.D1), bei11,g evidence that tho Plot was allocated t:o tho appellant. The evidence ,from the plaintiff I a/rosponden1' s sic.le, 1Jainly by witnesses from tho Ministry of. Lands, show; t:b..at tho area ofltll~Plot (s),fin dispute was res-µrveyed in 1978, which resurvey ·resulted in Plot 451.\. dis2· :e..ring and a new plot, No.1016, c:oning into existence. There is evic.~cncc to i_ndicato also that the offer to the respondent was revoked again:somctir:io in 1979 and that that to tho appellan~s was also rovoke.d in 1982. All this evidence is in . rather a state of con:ftlSi.oo, ·but }'(hat is clear is pat the grounds for revoking the respondent's offer wore flimsy. This.led ·chc learned trial m~istratc to docla.rinrr tho purported revocations as being without effect and ho went on to consider as to whom the Plot (s) should be restored between the respondent and the appellant. Re hold that as \tac respondent had been· I . allocated the plot earlier in point of ti::rn; on the principle. of fiTst cone first served, the Plot was to b0 restor.ed to hin (the respondent) 2.nd he so ; ordered. The appellants were agricvcdby this decision of the magistrate, hanc.c this appeal • ; :0n appeal, Mr~ Patel's main.contention is that the respondent had not ; been allocated .. tho. Plot in dispute at all. He con~endod that Ei:.."'10 P3, tho letter of offer, on which tho respondent relied, hn.d not been registered and should not have been admitted. at all in cvidoncoe ·without P3, Mr. Patel con- tended, tho respondent had no evidence that the r .~ bacl ever been allocated to him. 11.s for his clients, tho appol12.nts, he coritend.od i t;1at they· llad a vcJid Certificate of Ti tlc ·. gi v:i.ng •them full ri 6hts to tho Plot. _I have rriv~n._. careful considcr2.tion to those argu,,1ent by I,1r., Patele I am of the view ·that if ·one looks ooroly to Exh~P3 Jc~r. Patel's pontcntions would have clements of validity in them. But to b., fair, I think it is ir:iportant to consider the history of thls Plot. I·' ·.-ras in possession of the plaintiffts/rcspondont's, fami"·.r over since 1968. r1.t ·bo tine he obtained Eich. PJ, he hn.d. 1 as shown :above;';paid all the roqui\si te foes for obtn.ini.ng a certificate of title fror:i -tho Land Office. 1.\s is too practice once foes arc paid to tho Land Of·fico for a certificate of title,[ it i~ then for tJ+at office to issue one and it takes sometime for it ( the ocrt~fi,cat9) to issue. Tho fact that by tho tir:ic the appellants obtained tlwir ccrttficatc · th0 r8sriondont .had none docs not mean tl1orc~oro that tho ~ospondorit ·ha~ '1ost his li_nte~ests :or rights in the ?lot. lfor was it hi•s fa.ult that instbad of iss.kng hlm'wi.th 1 one, the Land Office iissued instead th~- a;p.clla21t~ l,ith a ~criific2.t~, for tho offer to the rospondo;nt was .in existu:,1cc and· the L~1Cl Office 1as aware of such •••• ~./3 - 3 - offer.. Under th-0 circumstancps thoreforo, the 1 arnod J,Iagistrato was right in hold:ing that tho _respondent had a valid offer of tho Plot fro□ the Land Office and tha't ·by the time theappollants wero allocat d tho Plot that offer was in ezj.st<:mc0 and valid. Tllo subeo.quent offer· to th~ appcl12nts ( on 7 •,4• 78)was there: fore null and v_oid in so far:~- plot, No.4511J. was lcor..cerncd p,s it was not by thc:.1 available to bo of:fcrod fo the appellants or anyjother persrn• Tho Land Office could not have offered something they no longor ~ad. I Concerning tho revocations of .1979 and al]egcd disappearances of· Plot : I I . 451A aftor 1978, those canno-t ·bo entertained in this I Court. I·. 1:rhc grounds for • the revocations arG said to have boon duo to tho jdisappea.rancc of Plot 451A· after rcsitrvoys • Wey shpuld the Plot disappear ;..i th those surveys, a .P'.1.o~ v.!J.ic'..1 had boon in oxistonce for years? In ny view P'.1.otl 4511\ continued to· exist ancl •. _.,.,-·-- --.. . the purportod revocation of the ofr-cr··Y,f it_ t_o- -~hp--rql!ponclcnt hf\Cl- no. va.J.;i~_t:r.. _. ~t:·--~1i·.--- T1.1at PlqJ';s'tUl':-bol;n.~•:=tp the rcspondcntt. . ·rt.is c'onii0,riq.cd in tho case· thc:tt' 21.uxing thb: ~urveya, :-ot 1016 -~1 Sjf~l;lr .. -1. up" Plot No,451A, If this is so_, _it would ~ppea.rj that plot :lfo. 1016, is. bj,g1;-:-,,· ''in sizo and f:1& bo :containin& plot No,4,'.21.6. and other land not belonging to •; • :· .~\· • ' • • • I · .~roepondcnt. .· •..· To make thin&s:_.clca.I'; t:ierd'oro, it io directcc; and ordered !101'.) . • . '· . ·.. ·.. . I . :t~tl'tho··.~.artd _Offiq;<t:should dornaia.t'o :Plot No.451.A! frOI:J Plot 1016 and hnnd H ·.{i::ii'~t ·451A) -~;er ~6:' the. r6spondofrt •. 'Ibo.· .r0o~nd0i- of Plot 1016 should then ' ', • : •: ~ ·• • I • :r~main with the i:\pp:~llants,• lJUt if it will be founcl that Plots 101·6 artd 45L a~ one and 'tho sqrii;o· . Plot,_ then ti:io ; . ' '-.'1fholo of -~hat. Piot sbotUd be given to t~:.( .. . !. __ .,.. roepo_ndent. PcrpetiJ.al inj:unotion will tb.on issue Ito-·t-ostrain the appellants • • ~ -• - • •~ I - froo onoroaching on: Plot No.451il as preyed. The ica.mcd. Magistrate did not . . . . I doom it_ neqossary tp consider 'the prc\Yer _for ~ o s and 1 will not go into · · ,,horo sil~cc no appoa~ has been made against non-conaidcration1 of tho qucstio:.1 of damages. In tho final. roeti1t, t!:is appeal fa.iis and. !H is clisoisscd with costs~. It is so. ordered. L .1. . ,-r-.. KY :11mo -J1JOOE DAR ES S/J.Jl.\M · 10th l1'obl:'Ul).ry f 1989., ..