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.. ~ , .I.~-.- +\,. C 0~ IN THE HIGH COURT OF TANZAN~~---------- AT -DAR ES SALAAM CIVIL CASE N0.'223 OF 1980 DR. Ao H. KOMBE • e 0 0 • e 0000•0 e PLAINTIFF Versus REGISTRAR OF BUILDINGS ooooooe•o o DEFENDANT JUDGMENT RUHUMBIKA 1 J 0 - The plaintiff in this case, Alli Hussein Komb~, has instituted proceedings against the Registrar of Buildings to have it declared by this court l' that the suit property at Plot No. 603, Upanga, in the City of Dar es Salaam, belongs to the plaintiff who is the registered bene~icial owner of that property. Further to that, the plaintiff ha's sought an injunction restraining the defend ant ( i. e e the Registrar of Buildings) from claiming rents and profits in respect of that property. The facts of the case are as follows~ In the year 1976, the _plaintiff being desirous of purchasing a building dealtr with· one sher Singh, who was a lawful attorney of ·Jag~sh Kaur, the lawful former owner of the suit property described, above. Negotiations between the t plaintiff and the said Sher Singh were concluded, and the plaintiff ag~d to purchase the suit property at an agreed price of Shs. 130,000/=~ Following this, a conveyancing deed was duly drawn up by the Tanzania Legal Corporation and was executed by the parties • .The deed is referred to l!ie · "An Agreement ror sale". The disposition (or the dealing with the land) in respect of the suit proputy wa:s· duly consented· to by the senior Land officer' ••• /2 ( - 2 on . \' the 22nd of July, . 1976, and there was a transfer of the Right of occupancy under Certificate of Title No. 186171/12 from the former occupier to the plaintiff in his own name as the new occupier. After the plaintiff had purchased the property, he then made arrangements to have the tenants who occupied the premises to vacate, so that he occupies the premises himself with his family. But, to his astonishment, the plaintiff received a demand note from the Registrar of Buildings intimating to him that he was a tenant and had to pay rent for occupying the premiseso The plaintiff failed to understand this, and as a result he has_ brought this action against the Registrar of Buildings, who is the defendant in this suit. The plaintiff was heard by the court on the 18th August, 1981, when he gave evidence viva voce. The defendant Registrar of Buildings had one witness who was heard on the same day as well. This witness is· a valuer with the Registrar of Buildings~ According to the evidence of the Plaintiff, he initially went to the Tanzania Legal Corporation, who went to the Land Office to verify about whether or not the Right of occupancy ( or Title Deed) had an; encumbcaaeos~·•1n,-:t-ospeat 0 of the property he was interested _in. The Tanzania Legal Corporation then verified that ·i:here were no encumbtances in respect of the said Right of occupancy. Following this verificationr the Tanzania Legal Corporation then prepared an "Agreement for sale", which the plaintiff tendered in court and is marked exhibit P~1- The evidence of the plaintiff further shows that t.he Tanzania Legal Corporation also prepared a transfer deed in respect of Title No. 186171/12• ••• /3 - 3 - This dot:uk:ent,,,. is exhibit P.2o Following this transfer, the plalnfiff Was issued with.a Right of Occupancy under Certificate of Title No. 186171/120 The plaintiff has now deposited this title deed with the Tanzania Housing Bank as a mortgage for a loan of Shso 80 1 000/= he obtained to enable him· purchase the property in question. The court has observed the documents tendered as --~xliibits: for the plaintiff (that is exhibits Po1 and p·o2) very carefully, From the court's observation, the two documents are both drawn up by the Tanzania Legal Corporation and are duly so indicatedo The "Agreement for Sale 11 (exhibit Po1) ,was accepted < ',) as a properly drawn up document according to . the co\.i'ntry• s land laws and procedures and was signed and registered by the Registrar of Titles, pursuant to the pl;'ovisions 'of the Registration of Documents Ordinance (Cap .. 117) (See Section. 8 of this Q~cinance)_o Paragraph 4 of the "Agreement for ·sale11 covenants as follows: "This Agreement and the Deed of Transfer of the said property from the, Vendor to the Purchaser shall be subject to tLe consent of the Di.rector for Land Development 3ervices or other officer duly authorised in tr.at behalf being accorded to this disposition r.nd in the event that such consent shall be refused the parties shall revert to their original position and any monies paid or deposited by the Purchaser hereunder shall be refunded t0 him." 'The words used in th<: above paragraph 4 (or clause 4) of the "Ag~eernent for Sale'' are clear and unequivocalo The essentei is that there could be no lawful dispo~;i tion without: the a:ppropriate consent of the official of the Larid Offic~ im whom powers to consent to such dispositions did ·11e. :·:' 4 - The-question that follows is: 11 Was the disposition consented to as required by the law?"• The answer is in the affirmative. The disposition was duly cons~nted to as indicated in exhibit p.2, the "Deed of Transfer .. 11 Regulation 3 of the Land Regulations, 1948, was therefore duly complied with in this respect. The disposition was consented to by a Senior Land Officer in the riame of Honory Kobero, who did exercise the power to that effect vested in him in terms of Government Notice No. 478 of 1962. The consent was signified on the 22nd of July, 1976 1 - as clearly exhibited in the 11 Deed of Transfer". The said deed was then accepted for registration and was actually registered on the 22nd of July, 1976. The registration is authenticated by the signature of the Registrar of Titles himself, for which disposition and registration the plaintiff paid some fees of Shs. 3,245/m in one receipt and Shs. 20/; in another one on the same day. According to law, both the "Agreement for Sale" and the · 11 Deed of Transfer" are documents which are subject to compulso;y registration under section 8 of the Registration of Documents ordinance (Cap. 117). It is important that the relevant provisions ,.are reproduced here; section 8 of the above ordinance - states (inter alia): "8 •. - (1) The registration of the following documents if.executed or made after the commencement of this ordinance is compulsory - (a) non-testamentary documents, including decr~es of any court and awards, which purpo:::-t or operate to create, confer, declai:_e, limit, assign transfer or exting:.tish any right, title or interest,- whethe:: vested or contingent, to,' in, _or over 1.andJ ••• /5 5 (b) non-testamentary documents which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, l·iJnitation, or extinction of any such right, title, or interest." Aecording to what has been observed, there was compliance with all the legal requirements in respect of the disposition regarding the suit property. As already found, the title was transferred through a 11 I)eed of Transfer" d1!1ly executed by the parties to the transfer, and there was the consent of the Director.for Land-Development Services (acting through his .authorised· official, a Senior Land officer). rt is ipso facto proper to hold that the plaintiff acquired a good title in respect of Plot No. 603, Upa~ga, in the City of Dar es Salaam, comprised in Certificate of Title No. 186171/12. Therefore, because of the land law principle which is expressed i~ the following Latin maxim - guiquid platantur solo solo cedit - the plaintiff acquired a· good tit.le in respect of the suit property, in consideration of which the plaintiff paid Shs. 130 7 000/= to the former owner through a lawful attorney as already indicatede f, I What remains to be considered by the court is the plaintiffr s title vis-a~vis the Acquisition of Buildings Act, 1971e rt is in evidence, and there is no dispute, that the suit property was .acquired under the law as per the Acquisition of Buildin,g.s Aqt, 1971. This is reflected in the efficial Gazette dated 18th June 1 1971. Thereafter, the property was restored to the former owner ·vide the Registrar of Building st letter Ref. ,·DSM/1100/1'.1./JRK dated the 15th of August, 1972., 'llhis letter was tendered by the Valuer (DW.1) who was called by the Registrar of Buildings to give evidence before court • .... /6 I - 6 It is observed that the whole of the case for the defendant Registrar of Buildings is based on the contents of this lette~. The letter is in Swahili version, but the essence of that letter is that it informed the former owner Jagdish Kaur (also known as Jagdish Kaur Koonar) that the Minister fo.r Lands had agreed to restore to her the property. The letter was signed on behalf of the Registrar- of Buildings. To all intents and purposes this letter came from the Registrar of Buildings, and there is no dispute about thato The second paragraph of this letter informed that owner that the said property had been reverted to her (it appears that the former owner of that property was a lady) during her life time only, from the 1st of August, 1972. Both parties to this suit were represented by counsel. The learned counsel for the defendant did contend that the 1976 transfer of the suit property to the plaintiff is lawful but only to the extent of the previous owner's life time. Th'at'"1s tC:, say, after the death of the said previous owner the property shall revert to the Registrar of Buildings., That_ .was what the Valuer (DW.1) had also told the court in evidence. Both the Valuer and counsel for the defendant did not specifically refer the court to any provisions of the Acquisition of Buildings Act, 1971, in respect of what happens to a building which is reverted to the previous owner following the decision ,of the Hardship Committee set up _after the implementation of the acquisition law under the Aesqnisition of Buildings Act, 1~71. • •• /1 I , - 7 on th~ other hand, learned counsel for the plaintif.:ff argued that th~ letter exhibit D.2 relied Upori by the defendant is of no legal value and that it creates nothihg of a covenant, because that lett:er (or document) was ,riot registered as required by section 8(1) (a) of the Registration of Documents ordinance (Cap" 117) referred to earlTs-r on in this judgment'• The counsel referred the court to the decision of the High court to Ute-.ettfeff""tnetron-et•-::.r. ,. ~ righ.t of occupancy could not be limited \Ji" ' ~- by a mere lette.r written l.n any manner. The ca~e cited is Director of r.iands vs. Sohan ~.:L~gh _1 T.L.R. ( R), 631 at P• 632,. The court h~_g had the opportunity of reading the case cited, and in that case it was held (inter alia) that under Section 10 of 1:Yl$ Registratioh of Documents O.rtlinance ho document can be received as evidendtil of any deaiing affec:tin~ iarid until it had been ~egij~eb~d~ This section, which appears as section 9 in the 1958 edition of the Registration of Documents. ordinance; c(Cap. 117) states as follows:• No document of which the registration , , is compulsory shall be effectual to pass any land or any interest therein or render such land liable as security for the payment of money, or be received as evidence of any dealing affecting such land unless and until it has been registered." If, then, the Registrar of Buildings in- this case relies on the second paragr~ph of the letter under reference (E:Xhibit D,2), then the said letter becomes .a document that requires compulsory .registration under aection 8.,. of the Registration of Documents· ordinance ~'ap. }17). • •• /8 j. / / // ' - 8 - I' N then, what is the effect of a document which falls under . / . t:: classifieation of those docul!lents which require compulsory registration but which document is not registered? The answer .to this intriguing question 1s supplied in the decision of Director of Lands vs. Sohan Singh (,cited above), as well as by the provisions of section 9 (or sec-tion 10?) of the Regis~ration of Documents ordinance (Cap• 117) • That is to say, the said letter from the Registrar of Buildings (exhibit n~2) could not be received as evidence of any dealing affecting that parcel of land on plot No. 603 1 Upanga, in the City of Dar es Salaam, comprised in the certificate a ef Title No. 186171/12. This legal position may appear quite contrary to what i:he Registrar of Buildings had intended to do. But that is the law. The court in this respaet has not been referred to any specific provisions in the Acquisition of Buildings Act, · 1971 1 which change or abrogate in toto the effect of the · provisions of Cap. 117 referred -~\\bove• :.vaile. obs.ervin:g.;;...:thi-s.1c the court is quite au fait with the aspects regarding the jurisprudence upon which the acquisition law was 'i."lought._,of·, g!v.ir,g ,,--., ., .- ' ;, rise to the enactment of the Acquisition of Bllildings Act, 1971 •. ,-, But, on the other hand, when a court of law has an issue :to decide,. it has a duty to decidE: the issue according to the legal rules. (or the law), which may· not necessarily be the logical cons~quence of the issue. Lord Harsbury said in .9.,,aj.nn v. Leatihem, "A case is only -an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. such a mode of reasoning assumes that the 1-aw is necessarily a 1 logica' code, whereas every lawye:t- must acknowledge that the law is not always logical at ·all ;-w ••• /9 .. / ,i .... 9 ~ I l Therefo.be~ to hold that because the former owner of the suit property was advised in 1a letter from the Registrar of Buildings that the building is restored to her during her. life time~ therefore that the said property will revert to ~he Registrar of Buildings after the death of the former owner, would be simply to follow the logical consequence. But that is not the law as we have seen. It is e. universal sentiment. of justice that no man should 2rofit from his own inequity. But what did the plaintiff do in this matter? The plaintiff investigated the title. 'l!his being a requirement and a matter of prudence in dealing with land. The title had no encumbrances. He then went through all the legal formalities; and had the blessing of the Land o£fice in every transaction as required by law. The plaintiff had no knowled,ge apriori of the existence of the letter exhibit n.2, leave alone the effect of such a letter. The plaintiff did all what the law and good conscience required him to do so as to procure the property lawfully. He paid a total sum of Shs. 130,000/~ as consideration for the property. After all these rigors, the Registrar of Buildings is now capitalising on the fact that the plaintiff is not the owner of ~he property, except only for the period .of time that the former owner is alive. This court finds that there is nothing that the plaintif£ has done ex proprio motu to flout the acquisition law of the country as contained in the Acquisition of Buildings Act, 1971. The arguments of the Registrar of Buildings in tlU:s caae have to be viewed as a posteriori in that they are based on the kind of reasoning as would be from effect to cause. ., •• /10 ., .. , ··~~ :· _-i- 10 - I f au~ the cause is the 'Registrar's own fault. The offices of the Registrar of Buildings never- took heed of all the legal requirements in the execu~ion of ~heir corp~rate functions. They ought to have caused an encumbrance o~ the title in·the ~ Land Registry. If that was the case, the plaintiff could not have been allowed to deal with that land in question on which the suit property is erected. The Land office could not have consented to the disposition as lt did, and the plaintiff could. not have invested his g.ood money in the sum of Shs. 130 7 000/P to purchase the property4 Equity looks on that as done which ought to be done, and in this case the plaintiff did all that which ought to be done. This is held to have been done p.roperlyt and , I the Registrar c:,f Buildings cannot be heard ·to cause the c,urt make the plaintiff suffer the peril for no fault o.f his. With due respect. to the jurivpruden.tial justifications of the acquisition law 1 this court finds that the Registrar of Buildings has not been able to convince the court in r holding that the property should revert as claimed after the death of the former owner. Therefore, the defendantis claim ....... '· 0 over the property is baselesv- For the reasons shown in the judgmentt there will be ~- judgment for the plaintiff. / Accordingly, through this judgment, it is declared that the plaintiff is the registered beneficial owner of the parcel of land on Plot No. 603, Upanga; in the city of / .. .. Dar es Salaam, comprised in Certi~icate of Title NOo 186171/12. rt is further adjudged that there will be an injunction, a perpetual one at that, restraining the defendant Registrar of ·Buildings from interfering with the suit property either by way ♦ of claiming rent, re·novation or in any other manner obstructing the plaintiff from quiet enjoyment by occupying the premises. • •• /11