jaku hashim ayoub vs executive secretary commission of land zanzibarzanzibar 2016 tzhc 2166 15 august 2016

IN THE HIGH COURT FOR ZANZIBAR HOLDEN AT VUGA CIVIL APPEAL NO.22 OF 2016 (From Original Civil Case NO.126 of 2015 of the Land Tribunal) JAKU HASHIM AYOUB ......... (APPELLANT) VERSUS EXECUTIVE SECRETARY ......... (RESPONDENT) COMMISSION OF LAND ZANZIBAR JUDGEMENT BEFORE: HON. ABDUL-HAKIM A. ISSA. J. This appeal arises from the decision of the Land Tribunal, Yahya U. Yahya (RM) in Civil Case No. 126/2015 at Vuga, Zanzibar. The background to the case is that the Appellant, Jaku Hashim Ayoub filed a Civil Suit at the Land Tribunal against the Respondent, Executive Secretary Commission of Land Zanzibar claiming that he is the owner of the plot No. 5 situated at Mwembeladu, Zanzibar which he acquired by a letter of a right of occupancy issue to him by the old Commission of Land in 1995. The Appellant claims that in 2015 the new Commission of Land issued a letter asking him to demolish the constructions made on that plot. Hence, he has filed that civil suit claiming that the Respondent has trespassed in his plot of land. In response to the plaint filed by the Appellant, the Respondent filed a Written Statement of Defence in which he raised two preliminary objections on the points of law. Those objections were: (1) The Appellant lacked a locus standi to file that suit, and (2) The suit was filed against the law. The learned magistrate of the land tribunal heard the preliminary objections and delivered his ruling against the Appellant on 16.2.2016, In his ruling he upheld the preliminary objections and dismissed the suit. The Appellant being aggrieved with the said decision preferred this appeal. He filed a memorandum of appeal which contained four grounds of appeal, which can be summarized as follow: 1. That the Land Tribunal erred in law by upholding the preliminary objections raised by the Respondent without any legal basis. 2. That the Land Tribunal erred in law when it failed to be clear on the objection (a) which it admits that it is concerns with the issue of facts and should not be considered, but on its decision it uphold that objection. 3. That the Land Tribunal erred in recognising the existence of a government institution contrary to the direction of law, and therefore, issued a decision which is against the Constitution of Zanzibar, but intended to punish the Appellant. 4. In general the Land Tribunal failed to show impartiality in its determination and decision of this case. In the hearing of this appeal the Appellant was represented by learned advocate Mr. Ussi Khamis and the Respondent was represented by learned State Attorney, Mr. Hassan Nassor. The Appellant started with the history of the matter, he submitted that the Appellant filed a suit to complain against the demolition of his shops which were built on a land he legally owns. There was an order of the Court to stop the demolition pending the determination of the suit, but the order was not complied with and the shops were demolished. The architect of the demolition is the Respondent. The Appellant was allowed to build the shops by the Zanzibar Municipality. After the suit was filed before the Land Tribunal the Respondent filed WSD and raised preliminary objections that the Appellant had no locus standi and that the suit was filed contrary to the Zanzibar Government Proceedings Act and the Commission of Land Act No. 6 of 2015. The parties made their submissions in writing. In this appeal the learned advocate for Appellants choose to argue all grounds of appeal together. He submitted that the Appellant objected to that P.O. on the ground that the Commission of Land was not legally there when the shops were demolished. After the demolition they rushed the said law to the Attorney General's chambers and was gazetted in the Official Gazette. He added that in the ruling in question there was an issue that the Appellant was not required to use the land as the time given has lapsed. In this issue he submitted that this is the point of fact and not a point of law. This was accepted by the learned RM on pg. 15 of the proceedings, but in his ruling he upheld both the P.Os. He pointed out that this is a contradiction in his decision. In addition, he submitted that in paragraph 2 of pg. 15 he talked about the Government Proceedings Act, and argued that the Commission of Land was not legally there when the suit was filed, hence, the Appellant was not supposed to sue the Government. He had to sue the Commission. On the other hand, the learned State Attorney opposed this appeal. He submitted that the P.Os. raised were justified and the Court was right in delivering that decision. Regarding the first ground of appeal he submitted that the P.O. raised before Land Tribunal was that the Appellant had no locus standi to take the matter to Court as there was no relationship with what he was claiming. He referred us to section 33 and section 9 of the Land Tenure Act. He added that the right of occupancy is supposed to be signed by the Minister, but the right of occupancy in question was signed by the Executive Secretary Commission of Land which contravened section 9 and 33 of the Land Tribunal. He cited the cases decided by this Court with the same effect, namely: Georae Elias V. AG and Salum Said Saturn Misc. Civil Application No. 15 of 2011 (Unrep.) where on pg 25 the Court found that the deed was not signed by the Minister and held it is void ab initio. Similarly, in Farid Mahfoudh V. Ahmed Sheikh Ahmed Civil Appeal No. 3 of 2008 (Unrep.), pg. 8 and 9 talk about the similar matter. He submitted that this shows clearly that the Appellant had no land in that area and according to section 9 and 33 the Appellant was not supposed to file such a case. The right of occupancy was issued in 1995 when the Land Tenure Act was in force. Regarding the second ground of appeal, the learned State Attorney submitted that all points raised are points of law and there was no evidence needed in those P.Os. Regarding the third ground of appeal he submitted that it is not true that the Commission of Land was not legally there when the case was filed. On 30.12.2014 the Act was published as draft and passed in the House of Representatives. On 18.7.2015 the Act was signed by the President as Act No. 6 of 2015 and was published in the official gazette in Vol. CXXIV No. 6574 on 24.7.2015. The case was filed on 10.11.2015 when the Commission was legally there. He added that even if the Commission was not there the act which is complained of was done by the Government and the Appellant was supposed to follow the procedures to sue the Government. He was supposed to file the suit under section 6(1), (2) and (3) and section 10(1) and (2) of the Government Proceedings Act. Instead the Appellant filed the suit against the Commission contrary to that procedure. In addition, he submitted that even the Land Commission Act itself on section 3(1) it is stipulated that a government agency is established which is known as Commission of Land and there is no provision stipulating that it can sue and be sued. Therefore, the procedure for suing Government has to be followed. He pray that the appeal should be dismissed. Mr. Ussi on his reply he objected to the submission made by learned State Attorney. He submitted that this is the first time they have been told that the Act was published on 24.7.2015; the learned State Attorney could have brought the gazette at the hearing of P.O. In fact he submitted that this was done to protect the Commission. There was collusion with the Government Printer to back date the gazette. He asked the Court to ask the Government Printer to bring a letter from AG/s Chambers. On the side of right of occupancy he agreed that it has to be signed by the Minister, but he cited section 9 (2) which allows the Minister to authorise other officers to sign those deeds. He asked the learned State Attorney to prove that the Executive Secretary was not allowed to sign the right of occupancy. In addition he submitted that the right of occupancy of the Appellant has not been revoked. After hearing the submissions from both counsels, it is clear that the issues raised are based on the same two objections raised before the trial Court. We will start with the issue of locus standi. The Appellant argued that he has a locus since he is the owner of that plot of land which he was granted by the old Commission of Land in 1995 and based on that grant he has constructed a building together with those shops which were demolished by the new Commission of Land. He produced aletter of the right of occupancy issued in 1995 and signed by theExecutive Secretary of the Commission. On the other hand, the Respondent argued that the Appellant has no locus since the plot in question has not been legally given to him. He cited the cases of George Elias, and that of Farid Mahfoudh (supra) which have declared that right of occupancy is void ab initio as it was not issued by the Minister according to law. This Court agrees with the view expressed in those cases that the right of occupancy which was not signed by the Minister in accordance with law is void ab initio as it fails to follow the procedure. The procedure has been laid down in section 9 of the Land Tenure Act, 1992 as follows: "9 (1) An instrument executing a right of occupancy shall be deemed to have been properly executed if signed by the Minister, and no further proof of execution is necessary for purposes of registration under the Registered Land Act or the Registration of Document Decree. (2) The Minister may, in his discretion, authorise in writing the Director o f Lands to execute certain instruments or categories of instruments on his behalf, and no further proof of execution shall be necessary. " This provision is very clear that only two persons can sign the right of occupancy. The first is the minister, and the second is the Director of Land if he has been authorised in writing by the Minister to sign that document. There is no issue of Executive Secretary of Commission of Land signing the right of occupancy. Hence, the document signed by him is illegal and void ab initio. The right of occupancy which the Appellant possess has been issued in 1995 and signed by the Executive Secretary of Commission of Land, which likewise is void for violating the Land Tenure Act. Now, the question is what is the position of the person who has that kind of a right of occupancy and possession of the land and perhaps buildings standing on that land. The position is that the person is a trespasser who becomes the owner by acquiescence on the lapse of time. If a trespasser of land enjoys undisturbed possession for more than 12 years then in law he cannot be removed and gets a right to challenge anyone against his possession. It is trite principle that possession is good title against anybody else except the owner. But even the owner can also be barred to claim ownership if his right is barred by law of limitation. In the case in hand, the Appellant has been possessing that land undisturbed since 1995 and the event which caused him to file the suit took place in 2015, twenty years later. Then he gets a right to challenge anyone infringing his right of possession. The issue whether he really possess the land in question is the matter which needs evidence and has to be determined after hearing the parties and their evidences. In this case the learned RM therefore has erred, the Plaintiff has a locus standi to file the suit to challenge the demolition of his property. Coming to the second issue of whether the procedure for suing Government has been followed. The learned advocate for Appellant has argued that there was no need to follow the procedure laid down in the Government Proceedings Act as the Commission itself was not legally there when the case was filed. He argued that there has been a collusion between the AG Chambers and the Government Printer to back date the official gazette. This is a serious allegation which need proof and evidence to be produced to satisfy the Court that a fraud has been committed. Hence, the matter of fraud cannot be determined in this appeal, it needs its own trial. Further, this Court fails to comprehend the reasoning that the Commission was not legally present. If this is the case why the Appellant sued a non-existing person. If this is the case the suit then ought to have been rejected at the outset. But going to the facts and evidence before this Court it is clear that the suit was filed on 10.11.2015 and the Act which establishes the Commission of Land was published in the official Gazette Vol. CXXIV No. 6574 on 24.7.2015. Therefore, when the suit was filed the Commission of Land Act was in force and is applicable. The Act itself in section 3 (1) provides: "There is hereby established Government Agency to be known as the Commission for Lands". Therefore,the Commission being the Government Agency the Government Proceedings Act is applicable and all procedures for suing the Government as laid down in this Act have to be complied with. In this case none has been complied. Therefore, this Court is of the view that the learned RM was correct in his finding regarding the second P.O., but the remedy for this failure is not to dismiss the suit, but to strike out the plaint. Hence, the order of dismissal delivered by the learned RM is quashed and set aside andthe plaint is hereby struck out. The appeal is partly allowed. (Sgd) ABDUL-HAKIM A. ISSA JUDGE 15 /8/2016 COURT: The judgment was delivered in chambers on this 15.8.2016 in the presence of Appellant and his advocate, Mr. Ussi Khamis and in the presence of state Attornies Hassan Nassor and Salama Rama for Respondent. (Sgd) ABDUL-HAKIM A. ISSA JUDGE 15 /8/2016 COURT: The right of Appeal is explained. (Sgd) ABDUL-HAKIM A. ISSA JUDGE 15 /8/2016 I Certify that this copy is true\from the original. YESAYA KAYANGE \ V y Jj\ DEPURTY REGISTRAR HIGH COURT ZANZIBAR. /HALLY/