19870722 TZHC Dar es Salaam

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IN THE HIGH COURT OF TAHZAHIA at ~....1ill_Q_.£..LJ.:.A1-1 MISC~LLJ.1-NEOUS CIVIL CAUSE IJO • 46 OF 1 982 JULIUS NYAMUII-IULA, • • • • • •• • • • • • , •• • • .APPLICANT versus MOHAMED H • LUSiJAGA • • • • ~ • • • • • • • • • • • • RESPONDENT J U D G M E J-J T J.C.YJJ\JDO 1 J • This is an appeal by JULIUS NYAI-1:JII-IULA ( the appellant) I_ against·t:i.1.0 Judgment of the Resident Magistrate's Court,< of Dar ea Salaa~ at ICisutu (M. --H. c. s. Aliaeti 1 RM) whereby it allowed the claim of !~OI-iJ.iJ·BD I-I. LUSUAGA ( the respondent) f'or the eviction of' the appellant from Plot No.8, . Block 44 Kijitonyama, here in Dar es Salaum:City. The learned Resident Magistrate also allowed respondent's· claim for damages against the appellant in connection with expenses incurred by the responcent in tryin 6 to reclaim the F1ot. The issue raised by this appe8l is this: vn~o, between the appellant and the respondent, is entitled to Plot no.8 Block 44, Kijitonyama? This was the same issue the lower court had to resolve and, as indicated already, it resolved in respondent's favour. Briefly, the respondent Hohamed Luswaga, was allocated Flot No.8 mentioned above on 16/2/1979. A file, No. D/IUT/A/6906/2MB, was opened at the Kinondoni .District Land 0£fice in respect of the allocation. He, the respondent, then went on to pay all the necessary fees and finally obtained a certificate of'

occupancy(No.186245/8) and a Building Permit from the City Council (E.xhb.P.J). Also he managed to hove a file for the plot opened at the Ministry of LandD and it was file Ho. LD 8355. • .• /2. 2 ... Sometir.:ie in July,.1979, when he visited the plot, he found that someone had started developing it: a trenc~ had been dug at the plot. He went to the Land Officer to complain. They checked a.nd found that i t had not bee11 offered to anyone else• according to their records. He was tDerefore given a letter to take to the ten-house cell loader of the area asking him to inform whoever woo developins the plot to report to the l-1i:nistry of Lands at Arhi house •. Later· on it became 1<11.m·m. the. t i t was the appellant ~,rho had carried out the developments 0:1. the plot. A tug-of-war :for the plot then a tarted between the respondent and the appellant,. culminating in the resl)Ondent suing the appellant f'or his eviction :from the plot and damages., He won,. the appellant loot; he ( then appellant) w2.o a 6 gricved 1 hence tilis appeal by him to this Gou.rt. The appellant's case '\'mo that he is the one who was allocated the plot first. The allocation wac done in 1978 and he had been allocated ?lot No. 9~ He paid all the fees in respect of' that plot, but when he went to the District Land Office to sho-,1 the receipt::, :for the payment he had made they told him that there had

been a mie,take: Plot Ho. 9 had all~eady been allocated to another person. -It wao suggested to him theref'ore that he be o:fferred Plot No•· 8 inGtead. He said he agreed and a:::;lrnd that the offer ot' ?1ot Ho• 8 be in his sonts name. He said also that the receipts for fees he had paid in respect of Plot Ho•· 9 were trano:ferred to Plot No.8 and they are Exhibit D.J. In his evidence before the Court below, he stated in connection 1--.rith the change :from ?lot No.9 to No.Bas follows:- "'l'he alteration to the Plot Humber of' the offer .Has made by the lc::nd officer I sau • He said he had made a miotake o:f ,1ri ting 9 inotcac1 of' 811. In other -words, the change o:f offers :from P1ot Ho,9 > to Plot Ho.8 was t::1ade by altering figure 9 to 8 on the letter of' o:ffer in respect of Plot 9(See Exhibit .D.2). He said he then went on to arrange for watzr to be connected to the plo,t ( which :i.1.e e:f:fctect) and submi ttted building plans to the City Council (which up till when the diopute had started had not ::>ee::.1 a:;_;)::_Jrovod) and applied :for a1:id got a Buildir.. 6 :..=cr,:iit from the City Council (Ex::1ibit :u.5). He stated that there was nothing going on at the plot ~y then to show that there uas someone 1~0 had been allocated it • • . ,/3. ... 3 He sadi it was on 15.9.79 when he received n letter from the city council st~ting thnt ?lot No.8 had been allocated to

two people. About :Oecember, 1979, he received another letter :from the Land Office a,::,l~inc; him to ntop work on the l?lot. Then the dispute over the plot, as sho11m already, stnrtecl·• In resolving the dispute the learned ~esident Magistrate found as n fact that both parties to the suit had been of'ferccl flot No. 8-. Sh0 found thot the appellant had a prior offer of that plot, as ~er ~ch.D.2, Appellant's Letter of offer, is dated 7th September, 1978. She also found that 1-1hereas 11 the plaintiff's (.i.'.<.espondent I s) record was elOUr from the time of isnue of' tho offer of occupancy at the Kinondoni Lnnd Office to the issue of the riGht of occupancy No.186245/8 and its registrcticn on 23/8/79 vide folio LD/87355/5/RH of the Exhibit D9", Appellant's document evidencing the of'f'er to him of xlot No.8 was unreliable. She also observed that the Appcllant 1 s registration of his rii;;ht of' oqcupancy in com:i_)liance with the provisions of' the Land Registration Ordinance, Cap.J44 ss.J2(4) and JJ earned tho Appel1jU;-t a superior ti tlc to that o:f the ilespon6ent, which/had never registered. She held accordingly thr. t the Appellant was the mmer of the right of occupancy fer plot No.8 Block 44 I~ijitonyamc:. On th0 allegation of' :frciud against the appellant the le~rned ~esident Mogistrate found that he (the appellant) ·.• was "constructively :fraudent fro □ July, 1979,

·when he became aware of the existence of' another interest on the plot, but continued with the process of developr.10nt," Finally, she ordered th0 eviction of the appellant ;from the plot and awarded him compensation of the improvements he had mnde on it of' the monetary Value arrived at by a Government valuer-and alno awarc.ed damages to the respondent against the appellcnt for the expenses the ;former had incurred in trying tc reclaim the plot as already shor,m. Mr, I'1buyn 1 in his memorandum of AppeG.1 and arguments before me,vigorously challenged these finds of' the lec.rned Resident Ma5istrnte. In groUI'lciS 1, 2, J and ~- of the memorc:mdum o:f Appenl, he hes contended an f'ollows :- t ... 1, Tho t -the ler-in.1.ed lvlagi.s:tre te erre<l ;i.n lew in 1:1orely exl::irea.sinc; 2.11 opinion and failing to m8.ke n op0cif'ic finding that the .i..-<-e.z;po- nclent/Plaintif':f was the mmer of th0 richt of occupancy in respect of .~lot 8 Block 2. Th.et the learned I>kcistr:::,t':> erred in le,w and in :foct in :failine to :find that as the appell~nt/:)efenclant h1:1d been cf':ferod end accepted the riGb.-t over Flot Ib.3 Block 4-4 I{iji tonyarna tho sub::;eqtitent o:ff'er 21;,-:.d purpor_:ted title to the Reopondent/Pleinti:ff we:s only. a oham and conf'~:..~red no propriet2ry legal. or equitable rightc o:f the sm.10 property, 3. The le2.rned lfa:::;·iotr8tc er:~ed in law and .in :fa ct in :fir~dinc the:. t the ./.~:;:::;ellt:mt/:)ef'endcn t had been constr-...1c-t;ively :fraudulent uhen the evictence in feet docs not establish a fraud but r..n error made in t:C.e Land Vff'ice for· ·which the Ap/.:illant/D0f011d2,n·c could not have been privy to on the cv~,_dence.

4. That the lear:-.1ed l'll.,(5:L0trato err0d in law c:-.nd in :f2 ct in fi:c.cline tb.c t the / .. pp0llan t/Vcf'e- .. nda.nt T,-rn.s not a recoe;nio0d of:fer0e of' the right over the plot the su~'.)j0ct met-tor of the ouit. In a i,rord, thece f'our grou..--.,,do ox-· 2.ppecl impu 0--n the magi- atrc tes I fi:::-idL1gs on the is cue cf o'f:fer of ti,.e i=lot · and. :trriud, I will deal with theae poirct::; .::ieric:. ti::--,. On tb.e point of of:fer, with .s.11 :..~ca:;_:,oct to Mr. Mbuya, tho learned 2.esic;.ent Mngintroto did mcke a f:5.r.:c:.ing, a specific :f'incling, on who between the Appollcn-c nncl t!1.e Respondent had the right to r'lot ITo.

8. In my c:n2.l7oio above I hc,vc . endeavo•.;.red to show how the l0c1--110d MagistrD t'3 ✓ 1nnde hor :ffr1c'.ing on this point. She :found, a:3 I have 2.lr02~y stoted, .., tlw t the ::;:ilaintif'f was the ownc:.~ of the riGht of' occupancy :ror l~lot Ho. 8 Block 44, :iiijitony2;-;1c1. I do ·:,.wt lmow what more ahe should h8ve cH:d.d which 11.r. I11bu.yc. io ccmpl~ini1:1g abot.t. I th::tnk it only r.c,·1. · f'nllo ?or i:1e ·to consider and docide ·,,hethor one ·w0.s riuht in rco.cl1.ing that conclusion • • . •/4. With re{3'2.rcl to this, I have no heoi~.;ation in h.old:i.ng that she w was• I am of' the oettlcd view th:c, t ,rl:.ile there mny have been an o:f:fcr tc the L.ppellant of I·lo·c Ho. 9 non0 w2s ever r.1cde to hir.1 in re:opcct o:f :Flot Ho .8, Th.ere io cii,-.ply no creid.ible evidence to eotaol:l.sh that he wao of:fcred. Flot Ho, 8.. As noted ecrlier on in this judgment, the of'f'er of' I=lot No.8 to the hppellant is said to have been effected by altering figure 9 (:;.,1ot No.9) to :figure 8 (l?lot Ho.8) or the LettGr of of.fer "'i'.,•-i ( 1-,.,~,.... ·.·J.2) ...n.is. T· • a l t ern t'ion .:i.s . . sR.:i.d t o have been made at t h e Lc,nc: Of'f'ice, or by c'. Land 0:ff:tc0r. 1-.T,o ini tiGli2:.g was done on the 8lternticn,to indic~tc that it h~cl been officially and properly d::m.e, W_orse zt:LlJ., th0 Appellont cleim.:,d · thc:t he docs not remember the L,,md

Officer wh0 mc:::de the o.1terations 2, uitn0ss in ti~io case... Go ·;,10 c~o not hc.ve the evidence of' eve11 the person whc, io onicl to have made thG nl tern tion on li.ppcll.:mt 's Letter of 0 :r:rer. In b.is ~ubr.1is.sions before me• tne R0apondent argued:-, U~lhe t I knou io th.:: t ~.ccorcling to Government procedu;x."'0 c\me!lc.1mcmto nre ini·binlod. T"ne Appellant dealt wi_th someone ,iho did not went to revGe.l his identity by evon ini tialin.g on tho c,rnendr.1cn t • I !. ' do not know why. l-1y of'f'er io not dGfcctive in in cny t·my. 1:..11 ·th.;:; docui~:e:::-l;o in relation to the of'f'er tbc oWlot to me are in order, all pro?erly initi8lled by public off'ici2lo, ~~pellnnt therefore deslt with a pri vci to ir:.di vidL-;Bl nnd ~ \ls cd tl-l.e ll:inonc:oni Lend 0:ffice 11 9 With respect, I agree entirely ~,Tith thoue nrguments by the Rooponc~ent. Mr. Mbuyo tried to convinoc this Court to accept the o.rcro..1.r.1011 t J.,; l1.c. t· tb.e pro 1:i 1 em nroc0 ...·:"J.· :',j"",.·. ~ · ~ 1 _.,,._ rol.o:qessc·~-,t / tl.,'-"- }. • •i..,Ondon1· .~-... 1rJ. .4 Land Office in records kocpinG in that 0fter tao altor8tions to J:..ppollant' s Letter of Offer wc:r0 done no c:menclments. were made to :file reference numbora on i t end the: t j,.1:pcllant' s subsequent documents ns a. reoul t c::,1,.-tii'lucd to beer the ref'erertce n~nocr o:r th.0 :tile f'or :_;lot Ho,9, Acni:n,

1-rith respect to t,1r. I-fbuy~, lc.nc1 nm tters csp1::cinlly i1:. :)nr co 51:1122.i:1, are very oensitivc mo:tter::;, I c1o not thi:nh: tl-iorei'oro tho.t the Le.nd Of'ftce would hnv0 been oo ccoucl in their ·activities no to effect an of'f'er of n i".'lot by me:L"'ely nJ. tcrinc a ::1ur.1ber o-£ the I:'lot on the Letter of Offer wi thcut rao.1-:.ing conoomi tant al terationo or re~tificc.tions to the relevant fil00 an~ other documents ·~•i+):::; :~~ :.). >>=~• --)<>-:;;:.J~i: ~~~~ " '>6 - Mr. Nbuya tried to 2.rgue thr,t ii' 2Jc.h. :0.2; .e.n amancled 1 WEIS note genuine docur.1ent,. it could ' not h2.ve been uoed to pay fees ns ovid1:mced '!:)y E;ch·• D.3 nncl apply for o. Building :i?ermi t :from the City Council• ' iJi th reopect, that thio docur.10nt we.a accepted j oa a bri::;is for payments of the v<1rious .f'eca and tc obtc:i::1 a Building Pe:.:-1:1i t d.oeo not alter itn n2 turel th.o.t it wno no-ta een-uine do()tlr.lont iscued by the Le.nd O:t:fice.· 1'hooe who. accepted i t obviously nocepted•it in error. So I find that ·not only w2.s tho J...ppella.nt not the first o:ffereo o:f Flot No ,8, he was not e.n of:fcree of th~t :i?lot at all., There ia no reliable evidence to prove that he wc.s one of' the of:f0rees o·f' tho t 1?lot·• I now r.1ove on to conoide:c t;he point of :fre.uds • The al ter2 tion to Exh. D. 2, the Letter of' Off'o .... to tho Lppellant is highly .

suapect;.• As I have indicn tecl above, i t could hc1rdly heve been ~ mcde at the Land 0 ffice er by a L2nd 0 fficer. " Reply to In his . / the Nritten Statement of ~efence in the lower Court, tho Respo- ndent in pare .2 sta tec:H- II With regnrd to Anne;:urc 1 B' (Exh, D.2) exli.ii::lited 0 t t o t .ne •,7, r1• t ·11cn .. -., .... "' ence, tl,.~ .I.:' o +.,0men·c' o :f .:.Jex . t .1.i: •··,1 a1n . .r.-.,, .i. will show by credible evidence thot the document and the Land Of':fice :file :J/KJ.J/A/6179 to which :i. t ref'era rclc1 tes -to :not I'lot 8, Block 4Li. but to ?lot 9, Block l.~4 Kiji to::.y2m2. • Hence, the dcf'endent I s forgery whereby 9 is made to look like 8, in J..nnexture• 'Bl• Ir.~ {..9.ct t_r;;-2....2!.h9..-!-.£.._<i9_~r:1ent ;i.s n f'orJ?erv one. n :;:;1."'8Ucl i..non the JJloin , ~ ~ ~ - - - - ~ ·...·~•--=--...---.... ti:ff 11 ,_ _._ ~ ( 1-.:nderli- · ning a' supp1·10·1 I ·would not here c. 6 roe -;1i th the underlined Horcls more; I am antiofied without doubt thnt the alterction on the hppellnnt 1 s Letter or Offer was a ~orgcry. So tho fraud woe not merely constructive as the loamed Resident Ma:;int:i.""c.tc held, i t we.s rm e.:,c.prec::. :f:c"':::-,ud and commenced :from -1:ihe dcte ti-10 cltol.""2tion of the :figures on ·E::th. :u.2 wao made ite• 7, 9 • 78• This is to say that the of:fer of' .:iflot No.8 was 01Jtr::dncd i'roudolently by

the AppellD-nt. The pos:t.t;t,on being c::s nbo-ve then, the 11.ppelhmt was quite clecrly a t~esspasser in respect of that plot, ?lot No.a. He oor::plains about the valuation of the devclo:;_::,1~1011.ts he hnd co.rried ou.-1; on it nnc: the comi:en::.ation he wco given ·for them. ) ~..- ./6. .. ··1 ... Being a treopasser, I do not t:.1:Lnk ho wc::J entitled to eny oornpens.:Jtion nt c.lli but EIS tho 2e~~ondent did not appeel thG order :£or cor,;:;._'.)enac tion, I leave that order _undisturbed. I rej 0ct and. disi::iiss L.ppellant I z prayer ·t;h:.-: t the vclUf.!. tion be done e.gc1in. we.a a :t'cir orc:'.er o.nd I ooc nc reason :fer diaturbin 0 it. · In the fina~ reoult therororo, the judgraent of tte ilesiaen rJi '~t r£i t e I s Cour· . • • t riegJ._, t o f'· iDar es oa :~ l aam, a t K·1ou • t u, vn~ich this appe~l waa preferred, io be~eby confirmed, together ~.-ri th all the orders based on it• The nppeel by the .i~ppellant to this Court is clisrnissod in i to ontirojcy; ui th cousto • ~9:Z,i.?J Corc:m I L. A. A. 'KYiJ'r:Jo t J. For the Appellant: :rv.:r. E. ,r.:r.... Mbuye. For the R.eapondent - Abc<mt Court: Juc::g,::,en t delivered tod.:,y the 22nd July, 1987, in the aboance·of the Respondent, v/J t't1; /:"·t -·. ,._Ill//{-;--1 - -- ,... v1 _<;;}~c.:,...-. -,:., ./ L. A. A. KYJ.N;:)0 1

JUDGE L._u,..,......,.... J