19971117 TZHC Dar es Salaam

IN THE HIGH COURT OF T ANZJ\.NIA AT DAR ES SALAI-1.1"1 CIV .,APPEJ\.L. NO •. 35 OF 1994 SAID ATHUH!-\.NI I\.THUMANI o •• o o • • • o • • • • • • • o •• • • .APPELL/1.I'·.TT VERSUS l'IDUGU DJ\.Ml'.S •••••••••••• . o • • • • o • • ., o • •. • • • • • • • • o oRE.SPONDENI' JUDGMEJ\TT KAJI, J • The appellant £AID f~THTTI''iANI is appealing against the decision of Kisutu Resident Magistrates Court which declared the respondent MBICHIO? D/l.MJ\.S to be the legal owner of Plot No., 42 Block D. Ki1sogo. It is in the record that around 1970 the respondent Damas together ,,Jit'1 about 38 others had their plots at Mburahati k:lva Jongo reclaimed by the government for the use by Tl\.NiBSCO. They were allocated other plots at Mabibo/Kigogo. The respondent wa&--allocated Plot No. 42 Block D., He was e,r 23rd September, 1970 issued with a Letter of Offer of Right of Occumpancy No. L.O., 569032., .But due to what he termed as "lack of money' he could not develop it~ So on 1st July, 1977 it was allocated to the appellant Said ivho was issued with Gertificate of Title No. 23735., In 1986 wh~n the respondent started developing it the appellant protested alleging the said plot to be his. Efforts for reconcilliation :f'ailedo Toe appellant took the matter before Kisutu RM's Court and claimed inter alia, for a Declaratory Order that he was the registered owner of the said I plot and that the respondent's Right of Occupancy be cancelled or rescinded., a+so prayed_for the eviction of the respondent from the said plot and for removal of any strutture that the respondent might have erected on the saif;_ plot. The respondent denied the claim and raised counter claim for a Decla:~'.'::ry Order tha.t he was the lawful owner and/or occupier of the said plot and t:-~.':. the appellant's title, if any, be revoked forthwith. The trial court ivas of the opinion that when the appellant was purport, .•··.1y 0 2 granted or allocated that plot the respondeht's title to that plot had not yet been extinguished., and that the said purported allocation to the appellant w~ null and void. The appellant's claim was dismissed and the respondent 1 0 counter claim was granted as prayed. I The appellant was aggrieved. He lodged thi,s appeal through the legc1J. services of Mr. Mkondya learned counsel. The respondent was ·represented by Mro Magesa both before the -trial court and before this court. Mro Mlm~1-::;:-, complained that the learned trial Principal Resident Magistrate erred in declaring the respondent the lawful owner of the plot in dispute in view of the evidenc~ of the Kinondoni District Land Development Officer PW.2 VAL:•:~=L_~.!fl who supported the appellant I s claim. The learned counsel also challenged -:::.,-:: jurisdiction of the trial court in view of -s.99 of. the Land Registration t Ordinance Capo 334. He therefore submitted that the judgment of the trial court was unlawful and should be set aside 2.nd the appellate be declared the lawful owner. In reply the respondent's learned counsel Mr. Magesa replied that the respondent was rightly declared the.lawful owner of the s1.1it plot bccaa,:,e th0 purported revocation of his Right of Occupancy was not made according to the proper procedureo Replying on the challenge of jurisdiction the learned counsel replied that a Resident Magistrate Court has got ,jurisdiction:to declare as to who is the lawful owner in case of a dispute over a registered piece of lando The learned counsel cali~d upon this court to dismiss the appeal with coste 0 In short that is the gist of the matter. There is no dispute that the plot in dispute was allocated to the respondent on 23/9/1';'0 by virtue of a Letter of dffer of Right of Occumpancy Noa 5690320 There is also no dispute that the rGspondent paid all the relevant taxes for that plot until in 1988 Nhen 9. dispute arose over cwnership of the said plot,. There is also no dispute that the appellant was allocated the same plot on 1st July, 1977 by cirtue of Certificate of Title No. 23735 of 1st July, 1977• Therefore tbe only crucial issue is as to who is the lawful owner of the s_;,i :;_ plot between the appellant and the respondent. According to the evidence of Kinondoni District Land Development ·offi-:;or' P\,j .2 Valentine he SE1id the respondent failed to develop the plot in di,spute as a result of v1hich he was notified by means of a letter that if he would ::10t have develop the plot in dispute as a rc,sult of which he was notified by ::1.::,c.:::2 of a letter that if he would not have developed it within a given time his title would be revokedo He said the respondent did not develop it within that given time and that he did not sho1r,1 cause as to why his title should not be revoked~ 3 So it was revoked on 30/6/77. But this tvitness did not show any copy of the said notice nor could he prove whether the respondent \•ms really noti:L, '1.,.. In fact he could not even tell the court as to who revoked the respondent 1 0. title nor could he show the court any copy of the alleged revocation. In the absence of all this it is difficult to believe that the respond•3r.t 's title was revoked and that it was properly revoked. The case of PATJvU\.N . GARMENTS HfOUSTRIES .;.;;.,....;.,__,..,..._,.._ _ _ _ _ _ _L'ID V T/I.N7 i.ANII\. i'\ANUF.'\.CTURE;]S _.~-----.....:..-....w .- - LTD (1981) TLR 303 _...,._,__ 'T _._ _ ____._ and the case of PREMJI Vo CALICO T-~TILE !NDUSTRIES LTD -· High Court Civil ~t . --------·-------- Appeal Noo 5 of 1978 DSVi are good examples on how a right of occupancy can properly be revoked and the proper grounds for revocation., Pl:J.2 failed to give convencing evidence that the respondent's title was revoked and that it was properly revoked The trial court's finding on this cannot be faulted 0 and the appellant's complaint on this has no merit and is dismissedo /1.s for as the question of jurisdiction is concerned it was the appel'ant himself through his then advocate from~tkumphrey & Company (Advocate) who instituted the suit pra.yin{t·for -a declaratory order. The respondent denied - the claim and raised a counter claim in similar footing praying for a declaratory order in his favour. ..... ivhy did the appellant institute that SUlL, before a Resident Magistrates Court if he knew or believed that it had no jurisdiction?' Is he raising t':-lis issue because he lost the case? \.-J'hy didn't he raise it befo1~e the trial court if he believed it was an issue worthy consideration by the court? The appellant is just cruying wild. He did not cite any authority which prohibits a Resident Magistrate's Court from issuini:; a declaratory order or judgment. So99 of the L311d Registration Ordinance Cap 334 Cited by his learned counsel is irrelevant. That is applicable where a party is applying for a prerogative order against the Minister f~r I..~:; '..3 or the Registrar of Titleso In that case a Resident Magistrates Court has nc jurisdict~on~ In the present case none had applied for a preroc;ative ordero Both parties were claiming to be lawful owner of the suit plot. The court w2.r3 called in to decide as to who ivas the lawful mmer 0 The court made a findin[l: that the respondent was the lawful owner and declared him to be so. There is nothing indicating that the value of the subject matter exceeded the pecuni-:i.J.';r jurisdiction of the court. That 1:12,..s a simple case of a party .claiming his piece of land/plot against 2. trespasser who is pretending to be a lawful occu:::ii~ro The appellant's complaint against jurisdiction of the court is therefore dismissed. 4 The appellant's learned counsel was also not happy with the learned .trial Principal Resident Magistrate's remark that he was not imp~ssed by the demenouli of the Kinondoni District I.and Development Officer PW ~2 Valentine.'· A trial Magistrate is the best judge of the witness, demenour because he is the one who sees the witness while giving his evidence. la the present ca.se ?1-J.2 in.sisted that the respondent was served with a notice requiring him to develop the plot within a certain period and that he did not do so and so his right was revoked and he was notified accordingly. This witness-was not present as a Kinondoni District Land Development Officer at that time nor could he produce.any copy of the said correspondences. How could 2. court believe such a witness? The learned trial.Magistrate was entitled to weigh .his evidence and there is nothing indicating that he weighed it wrongly. It is upon the above reasons thnt I have been of the view that this appeal is devoid of merits~ It is accordingly dismissed with costs~ S., No KAJI JTJDGE 14/2/1997 Court: Judgment has been delivered in the presence of the respondent's learned counsel Mro Magesa this 14th day of February, 1997. s. N., KAJI ~UD~E; 14/2/1997 I CIGRTIFY TH!',T TRUl!~ COPY OF THE OHIGINt,Lo / ,1,,. -'~. M~'HO:E \ / ,.·:i. o·->o ::, • \J; ~ / ·-fllT~ICT ii~GI.STHAR1 17TH NOVEMBER, 1997