19820309 TZHC Dar es Salaam

IN THE HIGH COUR~ OF TA1'J:;:,Afi/IA at .')Jill. DS SALA.AM CIVIL APPEAL NO. 28 OF 1981 (Origirta1 RM. Civil Case No. 91 of 1979) R. MINJA t/a KIBO AUTO R:CP.Az:RS .PJ\fD ST.AR BUILDING COMF'.1'.1.-IT APPELL.ANT versus JOSEPH BROim t/a FATMAN' s RESTAURANT •••••••••••••• ~.ESP ON DENT JUDGEMEET MNZAVAS J .K. In Kisutu RM'S Court Civil Case No. 91 of 1979 the present respondent sued the present appellant seeking for a declaration by the court that he was the lnrrful owner of plot No.937/157, Lindi street in Dar es Salaam. The lower court framed tvro issues - namely:- ( 1). Who is the rightful 01-:ner of tho plot• (2) What reliefs are tho parties entitlod to • .After hearing all the evider.ce the learned reDident Jnagist-rate came to that - the conclusiori, the respondent/plaintiff 1vas the lawful owner of the disputed plot and accordingly gave judgement _in his favour• / . ' Dissatisfied. rri th the decision of the lower court the appellant/ defendant has come to this Court. There was undisputed evidence that ir,i·c.L:lly the disputed plot was offered to the appellant/defendant _0,1 s.:.10r.·t term basis. It cannot also be seriously disputed that at t.be time the respon,Jer2t/plaintiff was''oifered rig;ht of occupancy over the ::;anK: piece of land the appellant was in possession of the land. L1 his argwnent that the disputed plot belongs to the appellant 1'.'!r. Fanturald submitted that it was unlawful for land authorities to issue 2. ce:!'.'tifica.te of' right of occupancy to the respond.e,.:t over:· the same land nhich had already been offered to the appellant. It r,as argued t:1c1,t in doing so appellant's right of occupancy over the land ·;ms revoked_ for no good cause. In support of this a.rgumen"~ the provisions m1der section 10 of the Land Ordinance, Cap 113 was quotted. . ..... /2 2 It was also the learned coW1sel' s submission that the appellant was not served with a notiqe t::n:t his right of occupancy over tbe plot was being revoked. On these 0 rounds the Court was asked to set aside the decision or' the lower court and decla.:ce that tl1e appellant/defendant is still the rightful ovmer of the plot. In rebuttal lfJr, El-maamry for the respondrmt argm1d that section lO(b) and ( d) entitled the government to :revoke an offer for f2,ilu:ce to comply with condj_tions stated therein. It was argued on beh<;1,lf of the respondent/plaintiff tbat as he was in possession of certificate of title ove1.· t.he disputed plot he was, it was argued, u/s 40 of the Land Registration Ordinance, cap 334, the lanful o-,·;i.1c:c of the plot. It was finally argued that there r;as no obligation on the part of the governm,:mt to serve tlle appelLw.t ·;;i th a notice of revocation as bia offer m1s sranted on sho:ct-term basis. The CoL1rt ,ms ;:-,s:-~·Jd to dismiss the o.ppeal with costs. AB I h;:,,ve aJ.:::-eady me,1tio;,,.,,d above there is no dispute th.<t.t the said plot was .n:ttially offm:-od to -t;l,o aJJp.:11;:.n-t and that the a:91Jcll;:-,nt r:c.:.s ir. possessio:1 of tho same wl,en the same plot was offered to -~lie re:::j_.)ondent, It has bee1:. a.rt,ue::l ti1at the Lani Autho:ci ties sl1ou.ld not have given certificate of title over tbc lw:-id to the respondoJ:.t '.!ilile the same land had. already been offered to the 2,yp::ll&nt. The learned counsel for -tho 2,ppell2.nt 'i7ent furt:.03~ cw1cl saici that the Land Authorities acteo. unlar;fully and. that the Uo ..rrt shol,_ld ill c0rfere and order ·tho.t t.'::o ar,:::01101:t i3 still the lawful owner of the plot, the issue oi certificate of title to the respondent notwithstanding. I carefully listened to the argument by both 8ides and I h:::.ve fully scrutinised the evidence before the lower com:·t. What actually hr;!.Y;_:iened before tho e,Tant of a certificatG of title over the plot to tbe re3pondet1t is clGarly brought out by tt.0 evidence of Land Officer, (D'.11). He says in his eviclence inter alia as follows:- ---11There is nothint,' on :cecord. to show tl1c:t the offer to Joseph Brown (i.e the rospond.ent) had been r~.-vok;,d. --- there is one letter No.KA/7156/3/AJK of 31.3,79 to Y0.·oo Auto Repairs and Star :Building Co. (i.e. tho appell,:,,:1-t) r:l:ich r.rithdrew be offer after the offeree had failed to co:i:ply i·,i th the con.di tions of ti1e cf.fer".· ••• /3 3 The lovrcr court appear::: to havo believed the evidence of the Land officer 9 who 7ras a.ppo,rently bro,.\zht 1Jy the appellant/defend.ant. There is no sugcestion leave alone c,viclcnco that the La.rid Officer had reason to tell lies against the appdlant/C.efcnda..ri.t ,,hem he said that the appellant '.,r1s served \li th notice of revocation of 'his right of occupancy over t~.c plot for non-compliance ,v,i th conditions relating to the plot. The finding of the low0r court on this point was based on the credibility of the witn0sses •. The learned resident mag'istrate saw and heard t11c Land officer as he was testifyinc' 2.nd a,s such he ,r.:::,s in a better position to asses::, -hi.13 credibility tbnn this Court which merely reads the record, In saying_ so I am fo:di:fiod by the decision of this very Court in IBRAHIM AHM~:<JD V HALD1A Gu"L:dl1I ( i968) H. C. D. 72_. I have no valid reason to differ ·.,i tb the finc.:ing of the lower court regar di ng th e ere d J.OJ - . t y o f th e Land u''.f.'-f' ., .. .LJ. ... ~iccr• 9 (n·-r1) ,, • That being th0; }Josi tion H is clear that tl-w offer of right of occupancy to the~ apr,ollont over the diGputed land. was revoked for his non,.;.compliance ,1i th the concli tions attached to tbo of for. It vvas, as the evidence of the La,nd Offj_ccr arnpJ.y de;non::::t:r3,tcd, after appellant's offer was revoked. that tho certific2.te of title ,1as isst'_Gd to the respondent/pJ.e~ntiff. Looking e.t tho totoJ.ity of the evidence adduced before the lower court it is clooJ: that appellant's right of occupancy over the plot was revoked because of non-compliance with conditions attached to the offer. Such revocation is lawful. u/ s 10( d) of the Lane. 0:,.:-cJ.in:.::,ncu Ce,p 113 of the laws. Like the docisj_on of the lo·,\er cc-urt it i,:: tl1e consj_o_erod opinion of that this cour,t the res1)ond.0nt is the· lax;ful v.:;nu::: of the disputod plot appellant's offer over the sa.rne plot having been revoked. The appell[mt to be 'put in ::1ossezd,'.)~1 o-f' the l)lot and have his costs in this and the lowor coUI·t. ·:.\._·.•···-- !_A'r:.[AS J AJ:-..;I;;;..;,i:,.=;;;.[1;.;;G;..;0-=Z=-I Dar es Salaam · 9 Machi, 1982