19830822 TZHC Tanga

IN H- - AT TANG4 OIVILAppEAL Np, 7 OP 1980 (Origiz1 Civil Case No. 7/80 of the ) (BMCurt of Tango. at Tang.,..,...) Before: B.P. MOSHX, Bsq4 , - PRM SALIM& LI,...,.AppEM4RT (Orig., Defendant) Versus FATUML ,A.WAI EB11M. - (orig. Plaintiff)

JUDOBMENT eya 1 J: The parties are bath female. The bone of contention Is a piece of land; not for u1tivçtiofljut for construction and/or dwelling purposes v an equally hot, if not burnj21g issue. It is described as Plot no I Block 38, Ngamiani area of the Tanga Munioipality The . appellant is claiming ti -tie to only a portion of it. The respondent on the other hand lays claim to the Whole of it It is the respondent Who fivlly referred the dispute between herself and the appellant to the Court of the Resident Jilagistrate, Tanga, where she went brandishing a certificate of oecup1ncr issued to her under section 9 of the land- Opirtance on 8th Ju'y, 199, for a term of thirtyi.ukhree years in respect of the same pieoe of land, i,e. Plot no1 I Blook 38, Ngainiani Area, Tanga Municipalityj whith I shAl., hereafter, be refering to simply as 'the disputed piece of lane) or 'the piece of land in dispute'. The said certificate of occupancy was tendered and admitted in evidence at the hearing of the suit and marked P,X, In the Court below the reondeut prayed, inter alia1 for an ordez' of eviction against the appellant from the disputed piece of land as a trespasser; an order for the appellant to demolish and/or remove her but tlieyefrom; an injuction restraining the appellant and/or her aervantagents from continued occupation of the diaputed piece of land; damages for trespass, etc. The

learned PDiD*ipal Resident Magistrate who heard the case at first instance resolved the dispute in the following texms and. I quote •• I ( I - i from his Judgement "In th fj.nU anl..ysi.s, therefom, the case for the plaintiff (now the responthnit) succeeds and fails to the extents shown hereunder:- 1' 1. The defendant is hsreby evicted from the plot in dispute 2 The defendant and her servants and her agents are hereby restrained frua interfering in any manner With the plaintIffs peaceful possession and occupation of the plot in dispute: 3.' Prayer for darages for trespass is hereby dieznissed 4 No order as to costs" Aggrieved the appelLant has now appealed to this Court I The facts of thu case are not in dispute. This makes the nArrative thereof an extremely easy task to perform. I will go straight to it Prior to 1975 the di.pwted piece of land comprised two separate and distinct surveyed plots. They were described as Plot no.1 and Plot no.

15. The rest of their description i.e. the Block number and the ares Were the same., that is to say Block 38, Ngamiani area, Tan The said Plot no.1 was. offered to, accepted and occupied by the appellant Plot no. 15 'belonged' to the respondent. Both the appellant and the respondent occupied their respective pieces of land, i.e. Plots I and 15 1 , on a short term Of occupancy * The one issued to the appellant was issued on 26/12/7 0 Exhibit DI, and they were paying land rent and service charges on year to year basis as a way of renewing their titles In this. conection.or to this end the appellant paid up the necessary rent or charges up to '4 until 19819 WE D2 6 It is clear from the evidence on record that although the short terna, rights of ocoupancy were jasued to the parties only in 1975 actual occupation by them of their respective plota took place very much earlier on in terms of By Gernment Notice no. 185 publicheed on 23/4/65 in the official gazette the then Minister for Lnde Settlement and Water Development declared the areas at Ngamiani and MsambWez4, Tanga, to be a Redevelopment Area under section 35 of the land Acquisition Ordinance, Cap 118 w as. amended by the land Acquisition Ordinance (Amendement) Act t No. 3 of 1964 On that day, ie,, 23/4/65, therefore, all interests in or over the said areas which, needless to say., • included the disputed piece of .and, were

extinguished and the area the UtLol and eubGt to the disposition of the Presjdent However, under section 37 of the same Orditiance rights.. of- 004g1A47 were issued to those Who were already in oocupation of pieces of land in the same development area,, Por reasons best known by the lAnd officers at Tanga the actual documentation was not done untiL 1975 when the offers were given to the parties. The offers were 1 however, Makdated to 1965 This,. briefly, is the background of how the parties came to be in legal occupation of their respective plot8 Soaetiiae,in the course of their occupation of their areas the repondent built what the 1eard Princtpal Resident Magistrate described as a permabent houSe, The appellant, on the other hand s only managed to put up a pa].Jn J%avvs. thatched hut on her plot s no.1. At the hearing of the suit in the Court )elow she, bowevex 1 attested that had it not been for the respondent 'a claims which gave rise to these proceedings she too Would, by now, ba priding over a permanent house on her portion of the piece of land in ieputo In support of her claim on this aspect of the case she tendered in'evidence the l4lding permit, 1)3, whiob she obtained from the appropriate authorities to the same end It is dated 25th September1 19760 In 1915 Tanga Mj.ni..cipa. 8,ir%reyors engaged themselves in exercises of redemarcation a3id/or reorganization of all

plo'ts in the winicipality of Tan, including Ngamiani Tbe3r were purporting to do so in açord.amce with the terms of the Tanga Master Plan. According to one Bvarist Njau (PW), who described himse].f as a town planning officer, a etadard plot under the s4d Tamga Master Plan comprises 4 1 000 ecuare feet of land Neither PLot nojl x: 1140t no 1 15 satisfied this requirernent. The two of them, lying adaQent to each other as they did however, did satisfy the rqujrement but as a sin3c pott The two plots measured a little over 5i00 0 equare.1eet The two p3.otg, ns land 15,were therefore, analgainated into,, one plot and named Plot No.1 Block 38, Ngam.ani 4rea, Tanga, t,e1 the disputed p,69e of land aking the then state of improvement on the previous p,ots nos and 15 as the guiding ': • • • - inciple the. Zixid Officers ffe red the 'new plot to the x'eapondent. This was done before and/or Without revoking the right, '.lbeit of a short term ; which the apCl1ant was then enjoying over the piece of land, in dispute or rather on a portion thereof o The offer to the respondent was in December, 1977. According to Salehe Musa Meumi (pW3.) and Francis Ramadhani (pW2), the then Tanga District and Re.onal Land Officers, respeotive1y, the appellant was offered another plot, "ten pace B away" but she turned down the offer. The end result was, andit still is, that the appellant did not move

away from her origlnai Plot no.1 1 a portion of the piece of land in dispute s Where as the respondent went eioad With the registration of her "right" over the disputed piece of land In her memorandutx of appeal, drawn on hör behalf by learned • Counsel the appellant advances five reasons of appeal, These may a • however, be reduced into a single reasons namely that the learned trial Iagietrate erred in law and in fact -in holding. that'the disputed piece oflandbelongs to the respondent and that she was, therefore, entitled to any orders for eviction and.in3Lction In his. judgernent, which is dated 3/10/80, the learned Principal Resident Magistrate found it established that the appellant had paid up the.. neceerp and/or requisite rent up to the period ending 30/6/81, Her right of occupancy was, thus at least valid to that time, The learned trial Magitate says in his judgement: "One woi.3d have expected the. land office to have revoked the defendant's (flow the .appel1*m) short tervi of occupancy (exhibit D) afr the plot in dispute'was issued to the p3.aintift (no 'the respondent) in 3.975. (The underscoring is nine )- $. . With respect, there is a misdirection here, To be honest,, the H point here has caused me some little áxiety.in that'I am not hundred peroent sure if the word underlined, i.e. after, is indeed the word which the learned Principa3. Resident Magistrate had

in mind at the material time. To my' jnind the proper Word is p and, 'indeed, it muBt be before.Tbe reason for this is obvious.. I will, nevéx'-. the lees, have occasion to mention and/ar refer to it later in this a.. judgernet Be itas it may, suf'ice it for the time beiag, to ;ay that it i. oj.ear f=Z t udgemet uer querry that the learned t'ia]. .etrate appreciated the fact that failure on the part of the Land officers to revoke the appellants right of occupancy1 1 or even that of the respondent for that matter was the cause and/or the beginning of what he described as the "present problem" If I may digress a littlei according to my knowledge of the law of real property th this country there is no way of terminating a Right of Occupancy, be it native customary or registered, short; or long term except under section 10 of the Land Ordinoe, Cap 113; or by consent and/or voluntaij surrender by the holder; or by acquisition under the Land Acquisition Ordinance, Gap. 48, arid/or the Town and Country p]J..unizLg Ordtriaue, Cap. 378 in Which case provision for payment of compensation for forfeiture thereof is made. Since the learned Principai Resident Magistrcite made a specifiq finding of fact to the effect that the appellants right of occupancy was not revoked I will desist from saying anything £ u-ther on this question of revocation of rights of 000upancy On the issue of the Land

Officers' admitted failure to revoke the appel].azrts right of occupancy the learned trial Magistrate ended up by saying, and I quote from his udgement:- "The result is that the position todate remains the same - that the p3,ot in dispute has two valid rights of occupancy - • the long term right of occupancy (exhibit P1 issued to the plaintiff and tho abort term right of occupancy exhibit Dl) of • of the deferidant" Nothing could be nearer the truth as a matter of faot3y than this observation by the learned trial Magistrate which incL.4enta1ly 8 fully supported and justified by the evidence both documentary, i.e. P1 and Dl, and oral i.e. the teetmonjea of pW] and pW2, As a matter of law, however, Such a situation is impossible. The question that arises is, what happens when such situations arise? I hasten to say that the position at law in such situations is that the right of the person which was the first in time WjS or 3 8ubsite In the instant matter the appellant already had a right over the disputed piece of land or a portiofl thereof beo te J12e BO*LW v'efl oP the respondent by the Land Officers Tnio, in Jaw, is i o.sstbl A man cin.not give that which is not there or do not exist zMah, da no h bet,...i.e. .a an cannot give that Which he hs not At the heag Of the ppeal.learied Counsel for the respondent, Mr. Mba;. . argued that sinoe there was eviénce of a Master. Plan for

the Municipality of TanWh1ch inóludes Ngamiani area then the provisions of the Thi±d Schedule of the Town and Country Planning Ordinance came into play. The said Third &hedule'j;to Oap378 is in respect of 'provisions relating to redistxibution of land inareas scheduled for detailed schemes to which section 27, Cap. 378, appliest.' The first ±tem of this third schedule reó&sh. l. A11 land to *hih the provisions of section 27 and . this Schedule have been applied within an area Scheduled or likely to be scheduled for a detailed scheme shall be pooled and the boundaries of all plots and holdings therein shall be expuuged" With respect to the learned Counsel for the respondent, declaration under , ! S .27 that the provisions of the Third Schedule shall apply to any area of the land, in preparation of a scheme is a matter of law and not cojecture The some is to be by publication in the G-overnment or official Gazette I have not been able to lay my hds or set my eyes upon any such publica—, tion or notice in the official gazette, To my mind no such notice as is relevant to the instant matter, thcfore, exists. No wonder. Mr. Mramba kself did not quote any such notice to me' Likewise the coming into effect of any other planning schernbe it a Master Plant is a matter of law.. The relevant piece of legislation is the Town and Country Planning.Ordincrnce, Cap. .378. In the instant matter

êi at least four land officers, to. wit PW1, pW2, pW3 and one SadikiMrisho Wtuta (Wi) who wasp at the time he gave evidence s attached to the Ministry of Lands Headquarters 1 gave evidence and made references to the 61 so—called Tanga .Master .lan T1'4S appears to have unduly influenced the learned Principal Resiaent Magistrate Who, in his judgement and Without muc'h ado,said.:' 'In 3.97 the Tanga Master Plan came into being...' Again, later he said: 1it is an established fact that With the inception. of the Tanga Mater P3An in .1975 plots and 15 which comprised the plot i. AjzDute caaed to exist as such, and in their place the plot in dispute came into being? Ranadhani (pW2) said that the Tanga Master plan came into being in 1974 At the hearing of the appeal Mr. Mramba • for the respondent said :that the said Master Plan came into effect in 1972, As aforesaid the comib.g into effect of a scheme or any planning scheme or even a mere inception thereof is a matter of law and must be published in the official .zette This was not done, At any rite no relevant Government notices were quoted by PW1, pW2 1 PW3 and DW1 in this matteri As a matter of law it will, therefore, be erroneous for apyonle merely to aSsume s no matter on who8e word of mouth s that the said scheme did come into effect Even if I were held to have erred oD this point I am of a considered and firm view that the

formulation of d Master Plan or SchemG for any u.rban. area does not e ipso facto, put an end or extinguish existing property rights ofany øccupier, and I So ho1d In his judgement the learned Principal Resident Magistrate also had the following to eay: "The sad part of the whole affair is that the defendant was made to quite innocenily believe, on account of the failure by the land office to revoke her short term right of occupancy(Bxhibit Dl), that the plot in dispute belongeo and s-till belongs to her But the truth s bitter as it may sound s remains to be that plot 1 Block 38 upon which the defendant's short tem right of occuptncy (exhibit Dl) was based was no more as from 1975", With the greatest respect to the learned Principal Resident Magistrate the effect of the fa1ure by the'Land office' to revoke the appellants right of occupancy t albeit only- of a short terms meant that, at least, up to and until 30/6181 she, i,e, appellant, was a lawful occupier or in lawful occupation of the disputed piece of land or a portion thereoI And in so fAr as her right over the said piece, of land was still- subsistizg, valid and good in law the same could not legitimately be given to same person other than the appellant herse2. Since the d- officers, nevertheless, g&m the same said right to the respondent • i; y - the grnt ,of the thirty—three year Right of Occutancv to ber I - 8 - that

which he has flL)t or that rlhich he has 3lready granted or donated; For these reasons and on my evaluation of the evidence I find that this appeal has merit and t, there:eore, is hereby, ailowed. The judgement of the learned Principal Resident Magistrate is quashed and the resu1tant6`rs are set aside.. is further directed that the appellant now be allowed t enjoy her Right of Oácupancy under the framework of the. law of this Countryl The respondent-Will pay the fees in this Court as Well as in the Court below' ¶ (H.E.D, Sisya) Judge 22/8/33