nurmohamed ali remtulla vs fatu esmail 1977 tzhc 3 2 july 1977

'IN"' THE- HIGH C O U R T OF TANZANIA A T TABGRA (Tabora Registry) ~ CIVI L AFPEAL NO. 11 OF 1976 (Original DC* Tabora Civ. Case No- 1 o f ' 1976) Before: E* J. Nyamasagara, R/Magistrati# N U R FCH AH ED ALI R E M T U L L A ................... A P P2LLANT versus FATU E SMA IL @ AKINA E S M A I L ............... R E S P O N D E N T J U D G M E N T MAPIGANO J: - This case coi^rna a house on a plot of lane* situated w i t h i n the boundaries of the township of Tabora and described as No. 138 N Kaze Kill, N g fambo Area. The a p p e l l a n t u n s u c c e s s ­ fully brought an action in the District Court alle ging and p r a y i n g per para. 3 of his plaint: nThat the plai nti ff as landlord and/or owner cf the house No. 138 Kaze Kill, Tabora claims from the defendant as tenant the sum of Shs. 5^0/= being arrears of rent due and owing by the defendant "to the pla int if f for the said premises at agreed and/or reasonable rent of Shs. 60/= per ssonth for the period of nine months from l / k / 7 5 to 3 1 / 12 / 7 5 • " He also prayed for vacant possession, mesne profits at the rate of Shs. 2 /= per day from 1/1/76 until v a c a n t possession, c o s t s and any other relief or reliefs that the court may d e e m fit to grant. The respondent, an unmarried woman, resi st ed the?ctirn b y plea din g that she was both the holder of the right of o c c u p a n c y of the land site and the owner of the hcu.se* Alternatively, she pleaded that she had cohabited with the appellant since 1964b and that for all p r a c t i c a l purposes their relationship amounted to a marriage uni o n anc, therefore, if only implicitly, that the plai nt iff was under a duty to m a in t a i n her by p r o vi din g her w i t h a reasonable shelter. It was common ground that the respondent is the occupier of the plot on w h i c h the house stands. A certificate under the Land Ordinance thereof was granted to her on 6/4/70* She has been pay i n g the yenrly rentals. Further, onecertainty about the parties is that they were for a long tiirw, prior to the institu ti on of this suit, very friendly. However, as the learned M agistrate observed, there was no sufficient evidence to est abl is h the r e s p o n d e n t ’s assertion that they were cohabiting* The evidence s h o w e d t h a t before tho r e s p o n d o n t was g r a n t e d the right of occupancy from year to year the appellant had given her t h e t:anagement and full control of his bar business and had also met the r e n t in respect of the premi ses she occupied at that time. It was also common ground that it was the ap pe llant who submitted the plans for the house to The Town C o unc il and that on approval of those plans by the Town Counc il a bu ilding permit was issued in his name, and that thereafter, on c o n p l e t i o n of the construction, he paid the yearly U rb a n House tax until that tax was abolished in 1975* - n:ay in t e r p o s e here to remark that I do not quite un d e r s t a n d w h y and how the Town Council should have approved tho plans a n d allowed the appellant to erect the house on a plot over which he had no certificate of title and which had already been a l l o c a t e d to s oir.e one elite. I cannot say whether this was due to a lack of co-ordination between the land cffico and the Town Council# I am however given to u n d e r s t a n d that s u c h a situation is not u n co mmo n and u nk n o w n to tho authorites and that houses are sometimes erected upon the land allocated to others in c ons ide ra tio n for rent or by the permission cf the occupier - the holder of the right of occupancy. That could be true, but at the same time it seems that such pr actice is inherently dangerous and the present dispute is a poignant testimony* Furthermore, it was common ground that after the c ompletion of tho c o n s tru ct ion the appellant u t il ise d the buildi ng for th e' ope r a t i o n of a bar business and that the respondent con tin ue d to be the manageress. And she lived in the s a m e b u i l d i n g without paying any rent. This dispute started r fter the appellant was refused licence to operate the bar. There was however a hot dispute as to wheth er the r e spo n d e n t made any co ntr ibution towards the const ru cti on of the house. The respondent c o n t e n d e d that she contributed S h s .- 5 1 000/=. But the evidence of the appellant was to the contrary: he denied that she contributed even a cent* I may p a u s e here to observe that it was not disclosed as to how m u c h the b uilding cost. The learned M a g is tra te found for the r e s p o n d e n t on this issue* W i t h respect, though the evidence of the respondent was not corroborated, but having regard to the cordial, if not intimate, r elationship w h i c h existed b e t w e e n the parties, I am unable to fault that decision* I w i l l not, therefore, disturb that factual finding* As in dicator at the boginning, tho le«rnod Hzigifitx'ate di sm i s s e d the suit* In. the main part, the basis of his d e c i s i o n was legal- The learned magistrate was in effect c f the view that in law a house and the land on w h i c h it is b u i l t are one and indivisible and that they arc incapable of being the subject of separate estates* He found authority in a passage w h i c h appears at P. 39 in. the text bock L a n d Tenure and Poli cy in Tanzania by Pro fes so r R*¥* James, w h i c h says that:- ”At comrron law " land” includes ver y mu ch more than just the physical soil or substance. It includes buildings and a n y other thing attqched p e r ma ne ntl y to the soil whet her above or below the s u r f a c e ’1• This passage, of course, expresses the well k n o w n maxim - cujus est solum cjus est usgye ad coelum et ad i n f e r o s * The learned Mag is tra te further held that in law tho grantee of a right of occupancy "Owns not only tho soil on the plot but all the permanent fixtures on it". He went o n to say that in as much as the he use in this case was b u i l t after the respondent had acquired the title to the u s e and occupa tio n of the l a n d , it belonged to the respondent, and that it was immaterial that the appellant might have made c ont ribution towards its construction. He added that if the appellant had built or assisted in the bu il d i n g of t h e house w i t h the permissir n cf the respondent, then at best he was a mere Licencee and that the only redress he could seek was co mpe nsation under the principle cf quantum mert3.it. But the learned Ma gi str ate pointed out that in this case the court was precluded from granting any such relief in so far as the ap p e l l a n t had net specifically asked for it. He cited Arusha Tailoring Vs. Mrs* Pucci (1967) HCD H e • w h i c h r est ate d the rule that parties are bound by their pleadings• It is submitted on behalf of the appellant that the learned M ag is t r a t e erred in holding that the hou3c and the land on w h i c h it is built are one and the same and that a certificate of a right of occupancy is always conclusive proo f that the g ran tee of the r i g h t therein is the owner cf the houses or buildings w h i c h happen to stand on the land i n r e s p e c t of w h i c h such certificate is granted. It is argued that at common law a distinction betwe en a title to a Pi ot of land and a title to a b uilding thereon c an po ss i b l y be separated. ............A W i t h respoct, I w o u l d agree w i t h the above submission. As Prof es sor James himself observes in his above text book at fm kO, the common law definition of land is simply a p r e s u m p t i o n and a transfer of a building separately froi? the soil w o u l d seem, in the light of the pr ov ision of the I n t e r p r e t a t i o n Act, UK, l889» tenable or innocuous at common law, and that an owner could, if he wished, devide his land horizontally, v e rti cal ly or in any other way and dispose of the sane so as to make them separate properties in the hands of the grantees. Indeed, it appears that this sort of d i v i s i o n has long been recognized in England. For example i n the old c a s e of Denn d. Bulkley V# Wilfo rd (1826), 8 Dow & Ry. K.B. 5^9, Abbott C,J. had this to say:- f,No body will doubt that if the word "land" m e rely is used, without any qualification, it woul d be sufficient to pass me ad o w and pasture land, and land covered wi t h water; but when we find that in this instrument 12 messnages are .mentioned, and when we find alsc , not merely •'that 20 acres of land are mentioned, but alsc 20 acres of meadow, 20 acres of pasture, 5 acres ,cf wood »•••••••., it is impossible net to see that the term Ml a n d M was not intended to comprise meadow and pasture, a multo forticyi we' must say that it was not intended to pass houses." However, as Pr ofessor James further observes at the next page, there <are in Tanzania statutory restrictions a n d it • * seems* that by Sect ion 66 of the Land Re g i s t r a t i o n Ordinance, Cap. 33^i land, including the building, held by a registered •title cannot bo transferred in horizontal portions* Even then, I do net think that it is, strictly, contrary to law if an owner of an undevel ope d plot p r iva tel y arranges w i t h or invites another person to develop the land, cr if the h o l d e r rf a right of occupancy accepts a c ont rib ut ion from a n o t h e r person towards such development. Either cf such c o n s e n s u a l arrangement would, I think, be in the nature of or amount to a sub-tenancy or licence. If and when such a r r a n g e m e n t is determined, any permanent or un ex h a u s t e d im p r o v e m e n t made by or attributable to the licencee w ou l d or s h o u l d be regarded as part of the land even by the parties themselves and inure to the benefit of the holder of the right cf occupancy: quidquid p la ntutur solo, solo c e d i t * But the licencee w o u l d be entitled to a comp ens at ion either under the terms of their contract or on the principle of quantum meruit. It would be surprising and it would work a real injustice if the licencee cannot obtain such remedy* ......... /5 As we have seen, thy parties in this case built the hruse j o i n t l y under a special and private arrangement, though the extent cf the appellant's co ntr ibution ennnct be ascertained from the evidence. I t h i n k that the respondent as the grantee of the right of occupancy can, upo n the te rmination of the special relationship, v alidly a n d pr operly assert the ow ne r­ ship of the house, and this should n ec essarily defeat the appellant's claim for rent and posses si on of the house. But at the same time, she must pay fair compensatic n for the house, for I think the appellant falls in the category of a licencee who deserves a compensation. This wou l d be in line w i t h other decision^of this court. In Nyakioze v> Sofia (1971) H C © No. ^ 1 3 1 the husband Nyakioze con str uct od a b u i l d i n g on a plot held by his wife Sofia under a right of occupancy. On divorce, the husband i nstituted procoedings in the court claiming ownership and po ssession of the house. It was held by this court, on appeal, that the house inured to the wife. , But the High Court further d i r e c t e d th~t the wife s h o u l d compensate the husband for the improvements. A n d in Saada v. Saada (1971) HCD Nc'. ^21, the p l a in tif f c o n s t r u c t e d a house on land belonging to his concubine and the parties intended the house fc.r joint use or benefit. On t e r m i n a t i o n of their relationship a dispute arose as to the o w n e r s h i p of the house. This court held, on appeal, that in those circumstances the house inured to the owner of the land, but that there was an obligation on the part of the o wner of the land to compensate the builder for materials and labour expended in erecting the house. That then brings me to consider whether the court could grant co mp ensation when the plaint did not specifically ask for such relief. Rule 1 (g) of Order 7 C.P.C. says that the plaint shall contain the relief whi c h the p la intiff claims, and rule 7 cf that Order says that every plaint shall s tate specificaJ-ly the relief wh ich the p lai ntiff claims either sin«ply or in the A l t e r n a t i v e . As pointed out, the learned magistrate held the view that he had no power to grant co mp ensation to the appellant. I wil l re lu cta ntl y differ. I think it is obvious that the ownership cf the house was a principal issue. In fact it was framed by the trial court as issue N c . 1 and the matter formed the mai n subject of discussion in the court. I therefore think that c o m p e n s a t i o n could be granted to the appellant at least u n d e r the claim for "any other relief or reliefs that the c o u r t may deerr fit" in so far as it would not have been in c o n s i s t e n t w i t h the relief specifically claimed# • In conclusion, I would dismiss tho appeal as relates to tho arrears cf rent and possession. I would grant compensation to the appellant. It is ordered accordingly# I remit the case to the trial court for it to determine the amount of compensation and award the same* I do not propose to make any order as to costs, as I feel thft neither party has succeeded on his or her main arguments put forward on this appeal. Delivered in Court. Mr, Patel for the Appellant. Respondent in person. Tabora, 1 2nd July, 1977 JUDGE. L