20060925 TZHC Dar es Salaam A

..... 1

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL APPEAL NO. 103 OF 2004 {Original from Bagamoyo District Court Civil Case No. 7 of 1998 Ndesambura, RM) KELVIN LUMULIK~;'.t~µing by a next friend GEORGE KATINDASl) . . . . . . . . . . APPELLANT

VERSUS 1. THE ATTORNEY GENERAL 2. ABDALLAH PACHANGA . . . . RESPONDENTS Date of last order - 23/8/2006 Date of Ruling - 25/9/2006

JUDGMENT Shangwa, J. / •. ,iJ3f.,; ·. , .:ri•.Jt) 1 1 lt,:~· ,-.1 . '• I ttfvt . · The appellant Kevin Lumuliko (suing by a next friend r George Katindas9) is appealing against the decision of the District Court of Bagamoyo in Civil Case No. 7 of 1998 which held in favour of the 2nd respondent Abdallah Pachanga who was declared the lawful owner of Plot No. 68 Block 'P' Medium Density at Bagamoyo Coast Region. 2 The appellant was not satisfied with the said decision and appealed to this court on three grounds which are as follows: 1. That the learned Resident Magistrate (·ti'. erred in law ·and fact in holding that the appellant had no right to own land, the disputed property known as Plot No. 68 Bloc 'P' Medium Density situated at Bagamoyo Coast Region.

2. That the learned Resident Magistrate erred in law and in fact for failure to 1;t · evaluate properly the evidence on record. 3. that the learned Resident Magistrate erred in law and in fact in holding that the 2nd respondent is the rightful owner of the disputed property known as Plot No. 68 Block 'P' Medium Density situated at Bagamoyo, Coast Region. The question to be determined by this court is whether or not the learned Resident Magistrate was correct in declaring the 2nd respondent as the lawful ,.. ' owner of Plot No. 68 Block t·i·•~: ~ . "• -=1: 'P' Medium Density Bagamofo Coast Region. According to the evidence on the trial court's record which was adduced by PWl George Katindasa who is the father of the appellant is that Plot No. 68 Block 'p" which is in dispute between the parties was offered to the appellant on 26/7/1993 and that the District Land Development officer at Bagamoyo gave the appellant J, a letter of offer with Ref. ··.-rr No. Bag/3577/1/105 (Exhibit Pl). PWl further told the trial court that the 2nd respondent trespassed on the said plot and started to erect a house thereon and that when he asked him to stop doing so he threatened to kill him. He said that he went to report the matter to the District Land Development Officer who issued a stop order to the 2nd respondent but later the said officer allowed the 2nd respondent to continue building on the

plot in issue. Furthermore, PW1 told the trial court that the District Development Land Officer did not give the appellant a notice to show cause as to why his offer in respect of the plot in ' dispute should not be revoked. Other witnesses who testified on behalf of the appellant are PW2 Joseph Mihayo, PW3 Maneno Lucian and PW4 Denni Deo Kilungu. PW2 and PW3 told the trial court that at one time the appellant employed them to build a house on the plot in dispute and to;-c,construct ··~.;.,- ' ~ a barbed wire fence ''W around it. PW4 told the trial court that the plot in dispute was earlier before offered to the appellant but five years later it was offered to the 2nd respondent without notice as he failed to develop it. 5 . /:~;~,: J On the other side, thei2 nd respondent (DWl) told the trial court that he was offered the plot in dispute namely plot No. 68 Block 'P' Medium Density at Bagamoyo on 10/6/1997 and that he was given a letter of offer by the District Land Development Officer at Bagamoyo bearing reference No. Bag/3281/6. He tendered it in evidence as exhibit Dl. Furthermore, he told toe trial court that at one time he ,: ·.,.t" . ~l?,: t ,) was ordered by the District Land Development Officer to stop building his house on the plot in dispute but that the same officer later allowed him to continue building it thereon. He produced a letter of the said officer

allowing him to do so. This letter was received by the trial court and marked as exhibit Dl. He said that the house which he built on this plot is a four beEk-0om house which costed him shs.10 million. He called two witnesses to testify on his behalf namely DW2 Zuberi Mohamed Ngatanda and DW3 Mrisho Mkawa. '' 6 DW2 told the trial court that he is a District Land .-iif~ ~ Development Officer at 8§'.gamoyo and that the plot in ,!J· dispute was earlier before offered to the appellant but that it was reallocated to the 2nd respondent because the appellant failed to develop it for a long time. DW3 told the trial court that he is a mason and that in 1997 he was engaged by the 2nd respondent to build a house on the plot in dispute which he did. .iJ.\ ~~ rJ}ir: . . . In her judgment, the· 1earned Resident Magistrate held that the appellant who was a minor had no capacity to enter into a contract and to own land in his name and that therefore the allocation of plot No. 68 Block 'P' to him by the District Land Development Officer at Bagamoyo was null and void. By .so holding, she relied on S. 11 of the Law of Contract . Ordinance . 1961 which .,.1'.J\.~ provides thus: : ;; . "S. 11 (1) Every person is competent to contract who is of the age of majority .. 7 according to the law to which he is subject; and who is of sound mind and is not .,::•.-\• /).;,.1; disqualified from cdntracting by

any law to which he is subject". After referring to the above quoted section, the learned Resident Magistrate went on to say that the section clearly states that a person who is under the age of majority as the plaintiff ( appellant) is incapable of entering into a contract. ., I '1 1.)'1. ~- First of all, I would like;:7to ··; point out here that in general the law of contract does not apply to matters relating to land allocations by land authorities. The law which is applicable to such matters is land law. When the appellant was offered the plot in dispute on 26/7/1993 and when the same plot was re-offered to the 2nd respondent by the District Land Development Officer at Bagamoyo on 10/6/1997, the law I • applicable was the Land Orclfhance. .. 8 Generally speaking, if one wants to be allocated a plot of land in town centres or Municipal centres he or she does not enter into a contract with the land authority. What one does is to apply to the latJ~ authority for being granted a right of occupancy over a plot of land. Once his or her application is granted, the land authority issues a Certificate of Occupancy over the plot to him or her. It was wrong therefore for the learned Resident Magistrate to apply the law of contract in this land case and to hold that the allocation of. Plot No. 68 Block 'P' to the ,·.; appellant was null and v~fg on ground that when the said plot was

allocated to him he had no capacity to enter into a contract with the Government to own land due to the fact that by then he was a minor. Normally, letters of offer to grants of the right of occupancy in respect to land do specify the terms and . . . conditions upon which a grai:,t of the right of occupancy may 'l{fJ .1 9 be made to the applicant. One of the conditions which is always set out in such letters of offer is the development of the land offered and payment of land rent charges. :,::jr, According to the evidince on the trial court's record, the offer to grant the right of occupancy to the appellant for the plot in dispute was withdrawn by the District Land Development Officer at Bagamoyo due to his failure to develop it for a period of five years from the date when it was offered to him. The major complaint ~b?Y the appellant in this case is . ~·r ';r,1.f.1 .,i that he was not given notice to show cause before the District Land Development Officer withdrew his offer. I must state at once that his complaint has no basis. As he failed to develop the plot in issue for such a long time i.e. five years, he should blame himself for losing it instead of blaming the land authority for not giving him notice to show cause. 10 For this reason I hereby dismiss this appeal with costs. ~'- A. Shangwa .,.JUDGE :,t{j . ; -~., ~:1 i i'.25/9/2006 Delivered in open court this 25th day of September, 2006. 14cs-v-- '[_) o-=,~ A. Shangwa

JUDGE 25/9/2006 i ·;r,ij-~: . ,c·,, I , .. .,,,,. ......... . ' ~ .:.:tr :'fµ; I