19970227 TZHC Dar es Salaam4

J. . .\ .... w-~ ' IN THE HIGH COURT OF TANZANIA AT DAR ES SAIAAM CIVIL APPEAL NO. 1995 (From the deciAion of the Resident Magi~trate's Court at KiFutu in MiPcellaneouR Civil ADnlication No.37 of 199,) Tmi DAR ES SALMM CITY. COUNCIL. o • • • • • • • • • • • • • • • • • APPLICANT versue ~1IL OtJISOo o o o • o oo o o o o o., o o o o o o o o o "o" ~ o o o o o o o o o oRESPONDEN':r JUDGMENT' !SAJERI 1 PRM - Extended jurisdiction, The appellant, in this appeal, is the D~ JB:S SAIAAM CITY COUNCIL, f~em the City Solicitor's Office ,,.,hilP. the respondent is EMIL O.rJISO for ,,•h8111 alternritely appeared MrR. G. Kato and Dr. Tenga, both learned counPe~, from the Law AsPociates (Advocates). The B.1""'eal seekP- to challenge a decision in RM. Misc. Civil itpplication No.37 of 1995 in "hich Kabuta Esq. RM. ordered that demolition notices is$ued e.gainFt the ap··licant dated 19th December, 1994 and 30th January, 1995 were rescinded and the ~ppellants -were. ordered restrained from demolishing the r~~ondent's et~ ctures on Plots No.929 and 93OMbezi Medi:am density Dar ~s Salaam City. These orders follo,.ed a chamb0r application euppffted by an e.ffidavit depnndd to the said court in response u,f not reactiol\ to a demoliti~n notice/order· that had been served on the respondent.by the appellant 80UNCIL. The ord~r ,,,hich ar,- dat~d 19th Dee_ember, 1994 and 30th January, 1995 Pere att .. chP.d to the chambi:sr applicat.icn and thP affidavit. From th-· af-fidavit , e 1°,,;:rnt tb~t ·thP. rP:•rnondent •·~s an o•W"r n! a t••o-acre plot of land at Mb-ezi Beach area hear T~n?:;;i.nia Lea.th"r Corporation premisei::: and that thP. said· nl¢t had b""'n acr;iuirPd ,·ay back in 1989 from one Roland Rukuali Kii;,himbo ·who had bePn al1ocrJtf'-d the Raid authoriti1::s existing then. The i-e'"po~nt added that having held the said land for many years he fenced the land and built some teljtporary structures for bw:;inesr: purposes kno•••n as •7banda. la biashara" with a permission from the anpellants. and a copy of that p rmi t is m8.rkr>d 11An:nexture EO -L 11 The re8pondent continued to atate in the said affidavit that from two years back he had be'n swamped a variety of demands from an indi~i~ namod Dr-. Kipokola who claimed to have been allocated the - 2 - to state the.t the apnelJ.ants had apparently_ surveyed the land in issue vithout his lmowledge·and demarcated, three plots of land variously styled as Plot Nos 929 and 930 Mb-:zi; at oth r tim"'s styled as 490 Mb-·zi; and still morr-: styled as a Plot Nooll32 Block H MoD. Mbezi Be~ch. Agr?in the r~spondent beli~ved that the pretendPd alloc~tees.of the 8~id parcels of plots were behind manouvres to'unla,,ful acquisition of his . land and hence the str;i,ng of_ demoil.ition notices ancl oth· r summon~·es I emanating from the appellantts offices< The co~i-s of demolition notiee of 19th DecPmh0r, 1994 and summons of 30th NovPmbPr, 1995 respectively are marked as ' 1annexture -E0-2° The respondent add13 th::,t eversince he received a notice and sunF"'OnE'. hG has beim a subject of harassment frem squads of city servants and agents who continiously threatn to demoliish his structures on the land in question and he beli0ves that ·without the intfC?rvention of the court the apnelJanb· and their agents are going to carry out their unlawful dr-c·signsa fie tb.,.,refcre prc1.y<"'d for tnr. ,. sought orderso The a'"'"ellant in a count --r affidavit disputed n.nd denind thP alle. gations contained in the foregoing affidavit of the rP.spondento He l'Y.,.. missed, in a counter affidavit deponed to by one ~tifa Mans♦or 9 that .the appellant would state that the transfer from the sciid Reland Rekueli Kishombo to the r--spondent was and still in null and void as the :PUl"P«"ei disposition ,,,as not a:i_-:r:--rovE>d by the PrPsident as rP.rui?"ed by the Laitd Reguibations 1948 and no registration had· been, effected as per rro,uire.,.· · mr.cnt of the R gfotration of Dooumnnts Ordin1':'.nce Cap 117 under Secti(Jl\ 8(1). AF for th8 building permit thi=- a...,...,ellant conhnded that the c::ame ... had be· n unla· ·fully is ued as the s-"'me had been isc--upd by unautrrorised person and therefore it is null and void. The s:rmellant furth-r counte11eti that thP Fui t plotF" are 1'11,,fully o,-n ,d by MAURICE NGAHYCMA und"'r lett"'r R · f o Noo D/KN/A/28830/1-+I of 1988 ,-,hich hc1.ve be- n duly pr,ovided by competent authorities, and vhich are coiJ.ectiv8ly attneh"d her~t~ and marked as Annexture CAY '"'hich · ·i th le~ve of thP- court , ·P.!'" to be r01'erred to as part of the count,...r-affi,:1."vito While not diF:-puting factP that the area in diP-r.ute had be n surveyed and demarcated, the &-pnellant further stated that as afore-stated herein the call notice~ and demolition notices and demolition noticeowere issued beee.use the respondent ,,,as • erecting nbandailla Biashara 11 e•ithout the building permit therefore contrary to the law of Te1•m and country Planning Drdinance Cnp 37~ under section 35 and the Township (Building) Rules CapolOl. The a,:,pellant thereby prayed for dismissal of the an!'lication withe co~tf, ., The learned trial Resident Magir-trate, aft~r haring both parties' 1 earne d counE'e 1 , gran t e d t ,I:"' __ a'rl--_7 ica. · tion o The a ~pellant preferred an 1 appeal, in five grounds, to ,,hich I will shortly r 0 turn .. . With leave of: this court, the part1 . · B, learn"d cou.."lr--81 filed ,,,ritten submissions to which a reply was not countered by the appelJ.ant counselo I have carefully considered the grounds of appeal in connection ••·ith the application and the judgment of the trial court and the ·folH,fiil.lig are my reasons for my decision. The fir.c-t ground of appeal is that the lea.rned trial magistrate erred in law and fact by holding that the curctomary title of the respondent in respect of plots No.929 arid 9~t Block Ho Mbezi (Medium deci ty) was not extinguished bas Pd on mere affidavit. From the affidavit and count~r-affidavit, the trial coui-t was in en-op w11en it held that the respondent had any cu~tomary title t• the suit plots. The a~nellant had demonetrated Mro:r-di.ng to Annextu~e CA - 1 that Plot 930 Block 14 had ber.n allocated to one MAURICE NGAHYOO on 21Pt Janurory, 19980 as againd the rt=>spondent's claim that he had acquir~d the same plot in 1989 from RinJ..and Rukud Kishimboo For the sake of argument, had the rprr,ondent 1Jroduced evidence to show that there i had be---n a sale agreement or trBnsfer or further evidenee from the ~ea•e authoritie.s to nrove cuPtomary title of Roland. Rukuel Ki~imbo worth transferring to the respondent before 1988, he v•euld have been believed. ±am satisfied that by the anpellant having declared in both Government Notice Nool71/1966 and Government Notice Nec405/1985 that Mbezi area to be found in Kinondoni district as well as Temeke and Ilala Distriete were planned and surveyed areas, no development could be carried out l>rithout a planning consent and building p~rroit. Bnder Section 35 of the To,,.rn and Country Planning Ordinance --Gap- 378 it fa stated thet (I quote):- \, ~~- •iNoh•ithstanding any other Law to the ••ntrary, . ... no person sba J 1 dmrnJ ® any land within a planning area without consent or otherwise than in ·aecerdance with planning consent and any condition previcu,d therein." I am satisfied tbat aftP.r GoNo No. 1+05 of 1985 camP- into force the suit plot in Kinondoni District including all districts of Kinondoni, Ilala • and Temeke 1-·ere such planned areas for 1,•hich a.11 CUf'tomary titles ,,-ere rescinded, extinguished and or acquiredo - 4- I now turn to grounds tvo and four ,,hich are that therA pas an error when the· lee.rned trial magistrate held that eith0.r the appellant had no power at all to isrne demolition notice and she went on to issue a demolition notice or that e1ere was no need of a building permit on a planned area. f have sho ·'ll abov8 that consequent 1 to the coming into .force of both G.N. ffo.171 of 1966 and GN. No., 4Q5 of 1985 the three districts of Ilala Temeke and Kinondoni in the disputed plot of Mbezi Beach ii=: to be found in the last mentioned di.strict -were both survP.yed and planned areas. ifule 12 of Cap.101 the T01-'l'lship (Building). Rulrs upon 1,rhich th,=, authority of the notice is based reads (I quote):- 'e 11 12(1) '!'he authority shall have power to inspect any building in courGe of erection or on complPtion, and if any portion or detail thereof shall contravene any of these rules, may by written notice require the per:son erecting the building to make ••·i thin a timP. to be specified in the notice, such alteration as may be necessary to comply with these rules, and any fnilure to comply with such notice shall be deemed a br~ach of this rule. 'f2). If any pP.rson erects or begins to etect any building 1,•ithout having obtained the permit required by these rules or in erection of any building contravenes any of the provisions of these rules or having obtained a permit constructs the building in part or in whole according-·· -; to a plan which has not be(-m ap,·-roved by the Authority or fails to comply ,-,ith any served upon him in. pursuance of sub-rule(l) hereof, the Authority may in addition to eny other proceedings that may be taken for a br~ach of these rules rP.quire; by & written notice, such person to demolish and remove such building or any part thereof or to make such al t""·ration in such building as it may -prescribe within a time to be specified in the ""aid notice, and in the same or another notice may notify such pP.rson that if such requirement is not comuli0d '··ith within the time specified the authority will itself ent~r upon the premises and carry out such demolition removal or alteration; and if such requirement is not com-rJ.ied with the A!llih€lrH¥ may not in accordance , ·i th the t0rms of f'uch notice and may rt-:covPr all col"t,s and expene-:~s. - 5 - incurred by it in that behalf from the perPon who has failed to comply with such requiremento bvided that any person on whom such noticE.e is served may, prior to th,_, P.Xpira.tion of th? time the~ein .SP"'-Cified, apryly to i¥ any m~gistrate for a summon~ cal]ing upon the Authorit~ to show cau~e why thr .-aid notice i=:hould be r scinded or variied and upon the hearing of the <,- aid summons the magistrate may confirm, rescind or vrrry th.:- said notic," and make such order as _to costs as to him may seem just. (3) On her.iring of· any r-uch summonr-= th·:> onu::, 13ho.ll lie on the p-=rson obtaining the sumrnom· to nroV8 tbnt ruch building was not erected in contraveneion of these Rules.° Follo,,,ing on these provisions ns I have alr.,o.dy found th::t th0 suit plot was a planned and -survejed area where no development could not be corriet½ out without a building permit and planning con~ent, the leo.rnod trial RePident M~gistrate -- .;.,,· ..r . erred when she decided,_, th•~ a"Dpellnnt Council. had no pm-•er at all to isr-=ue demolition noticeo The demoliti.on notice ought not to h.:'.ve be0n re~e~ded. In order that anybody could commence any conPtruction or building on ~he suit plot, it vo.s mandatory to hc,ve a. building permit as it was a planned area. I also agree with the third ground of o.n,~eo.l tho.t the learned trial Resident Mo.gistrnte mo.de o. misto.ke or an error o.pparent on the face of the record ,-·hen she determined the is.sue of 011111:rship based on a Miscellaneous• Application filed by th~ respondent ,-·i thont filing a nrop- r suit. The appellant submitt~d tlnt the respondent ouc;ht to h-;1ve filed a plaint as is required by Order IV rule 1(1) of the Civil Procedure Codo, 1966. He ' t added that if thc)re were sO.tisf:-:tctory rensons to rescind the demolition notice then the learned RePident M~gistrate ought to hnve r·scinded that notice only u0nding the ultimo.te determination of the isrue of Oi;lfi@l'Ship. · Alt rnativ,"ly, r0.lying on thr-, c:--.~e of Fro.nk M. Mo.r;,o.lle Ve., Fbul Kynuka. ... Njo.u !J-98'{/ T.L.R. 32 the isP.ue of o•-·nPrship ought to have bf!eri deter- . mined by n primn.ry court o.nd not the court of R~·sident Magi,c-tra'te ns 1,in.s the case ~ in this co.Fe. Dr. Tcnt.'.J. on th•, oth"r h..,nd br~.nded,.th_~ appellant's arguments in r@spect of the· is,""ue of 0,-11 ... rship b('ing_ de_cided in a Mir-cellaneous applico.tion ns mif'guicl(')d and inconceivable. He added that the City Council as o. planning Authority cannot ann~ar before Primary co:urts, because the planning la, ·s do :'.lot ollo,,, thD.to The proviso to sub- · rule 12(2) quoted hf:reinobove requires tho.t n r.erson on whom o. demolition - 6- notice is served may before expiry of time specified in the notice apply _t_o a m~i~t:r.::i.ye for a sumrJons so tho.t the authority may sho•··• cause why the notice should not be varied or rescind,d or confirmed and make such order .::i.s to cocts ~s the magistr3te may deem just. The law here gives ch,'.:'-nce tc an aggrieved p:,.rty to , ·ham a demolition notice h"E' be··n served, to challenge the Authority ,,,hich is ued such notice but it do f' not alJ.01-· th-t court to determine an issue of ovn·~rship; t11ough Puch evir:knce may be avnilnble to help the court arrive at a d0ci.c::ion of eith,·r confirming r!'!s~inding or vnrying the notice. By the tri~l RePident MagiPtrote det rmining the issue of m,mership in ,-·ords 11The s::iid Mr. Kii=;himbo -•ns right in -tron~ferring 1 the land to the applicnnt since customory little (sicl) of him sic) \.$.s still existing •••• ~, 11 , she e.rrid. In order for the iFwue of mmership to to het.ve been nn is-ue Horth det:-·rminntion by th-.,.t cciurt there ought to h"J.ve been f:iled a plnint under O.IV r.1(1) of the Civiih Procedure Code, 1966 1-•hich reads:- 1VEvery suit shall be instituted by presenting a plaint to the court or such offfc er as it ap-noints ii in this behn.lfo The fifth ground is about an ord~r for compensation for development done after the suit area had been declar0d ns a ~lanned and surveyed area. I have hereinabove demonstrnted 1-•hen diFcuasihg the firl='t ground of ·a.,._-renl th"1t in rPRrect of thr- suit "'lot thr-' resnondent h~d no CU!"tomary title to the suit nlot after it hnd b(> n lD:·fulJy alloet.:1.t&d by the· an.pe.. · llant :to Maurice Ngahyoma on th~ 21/1/1988 such th"'t there ,,.,.,s no 1'.er-d for P.ith r com 0'PnP.:1tion or ")"\revision of an alte~"ltive plot t~ the r· 8ponrlent 1,•ho clnimed to hnve l'Urch""'ed thP. PUit .,,lot iJt 1989. The respondent h-;d not given r-.ny evidence orally or doeumr--nt?.'!ry to establish thr\t ther~ wo.s anything for d1ich he deserved ci th,-r comnrnP..,tion or .. provision of an alt,·rn:i.tivP. -.,lot. I indeed "1gree with thP a.,,r-ellrmt's connsel' s submisdon th~·.t the trinl ReFid.ent Mo.gi~tro.te m~de n mfatruce or an error an"'arPnt on the face of the rr-cord by bringing in isrues of _either provision of an alt 0 rn--:tive plot ibr compena~-bion . in a case that hnd bef:'n filed under rule 12(2) of Cnp 101 set out 'hereinabove. In this mattPr if the is-ue of o,-'11 .. !'S~ip ~d or eompPnp--it~on or .. provision of altPrnati VP. plot WAS to _be ~ntertained therP. t•as·••·t-0 be·. entertai.:1ed · t:.-1..~re ought to h,'.J.Ve be n .fiied a plnint in anothr-r separate 0 suito The firi=-t np111ic::tion would be thct rn_ad~ undr->r rule 12(2) of Cap 101 while the second one would be a civil suit fil,,d by presentation of a plaint in respect of determining ovme~ship. It is in _this second caPe that the issues either compenso.tion and 0 -w,rsl:iip nnd euFtomary title 1 ... 7 - ,,,ould h,'lVP. been de+:--rminrdo It iP al.eo in this seconn F.Uit th.-1t it 1••ould have to bP establir-:hed whPthPr or not Rolnn0 Rekueli Kishimbo had any curtom~ry title to pa~~ on to the rrsnonrlent, if at all he sold the suit plot to th~ respondent. For the rPasons th"ct I h::1ve given hr->rein, th.-· ruling of the trial court is set asidec Thf' demolition noticf' dnted the 19th DecembP.r, 1994 is hereby confirmed under l'.'rovisecmto sub-ruL:~ 12(2) ~f Cap 101.. The resultant effect of this juclgm8nt is th~t the respondent should ~ive;-:_ V.'.:Peant possession of the suit plot forthwith .. Deliver~d on 27th Febru.~ry, 1997. AT DAR ES SAIJU\Mo This is to c ·rtify that this i~ th~ true com, cf ih0 9igi~ ·•. · 0 - DISTRICT REG IS 'ffiAR