19880719 TZHC Mwanza

HC CIVIL __ IN THE HIGH COu;::.T OF TU-I~i.ITil.1. ....,____ AT KJi":.NZA c1~sE NO. 13 OF 1987 1 • SUZi::.HL EJ_I<;:UBIF.1.'CUBU ) 2. .I11.. rtCELLIN n:. K.ii.SIGj._:e.1. l······.'.·.·'.·.···'..·.·'..·······. PLL.INTIFFS Versus 1• DEFsif.01.HTS 2. JUDGi'1.i~NT MOSA,h J: ... The dispute botwoon the pnrtios involves tho ownership of' a parcel of land r.ieasuring about 5 ac:res, preoentl.y know as Farms 2 E,:r.:.C: 3, measu:.~ing 2.17 and 2.8 acres respectively, in Bwiru area, \·rhicl:c i.s a plan.:ning area, within the jurisC:iction of' Mwanza Viu.::1.icipal. Collilcil •· Hr·. He.iro., loa1.~ned advoce.te, and Mr. E:ab.2.ngwa, learned advocatet a:;_):::,eured f'or the plainti:ff aZ1d the i'irst de:fendant .. Y'..: . .-::::..:.t respectively, whereao tho I1wa112;a I"iu.,.'1.i~ipal Council lawyer, Mr. The caoe for the plaintiffs is that they are a family group mother (l.~11), elder son (?H2) m1.c y~unger non (PUJ) respectively.; I • The :first; ple.i:ntif'f (PW1), vrho is :;.:10i:,r an old and blind woman, resiclss in. Dar os Salaam with the aecond plaintiff (PT,12), i-rhereas the thi:!'d defendant (PUJ) is the Tabora T.T,-C. Branch Manager. i~t an 1.-1..."lknown time in the distf,nt pant PH1 o.nd her sister Sof'ia inlieri t,::,c:: thG land. in dispute from their f'a t:her Ngunga.. So:fia died, and ?:11 o-tayeC:. on the land with Sofia I G sister ~mersiana. About 13 ye2,rs ago ?iJ1 f'ell _ sick and wei:_ti, to .Da:..~ es Salaam, where she has reoided todate, . leaving the sb.ar:iba ,, under the care and mano.gement of' ~i:1ersian.a,. s:1.e hc..d two houoes on the lnnd.-on0 with a thatched 1 roof and another with corrugated iron oheets roofing - and some crop::: - p0rE,n110nt and annual• The houses were on the part of' the 1""·'"'c.:." -c.:·-'-- t ,·r1J.cn • • 1 a -1-uer 'oe came L" 4' arm 2 , ',...,-.,c "'1·~-e -•-'-'- 1"'' "' v · -~~-'-e .1.. ,~ 1; service charge •.•••••••• /2. 2 w~B being paid in connection therewith. ~morsiana invited their relative, Ndege Masandika, to stay with her on the land, and upon the deo.th o:f 2rnersiana in. 1983, Hcleee took over the care on the :n"'ocec:ds of' th0 land, a-11.d he ifas living in one of' the two houces& He was cultivating a variety 6:f crops on the portion of' the la~d ~rl1ich later became Farm 3, together with four persons, I"•.ic'.ongo ( :0.-r7) , Mtoka ( PW8) , i°1[tci1.ai ( PW9) and Kilangi ( PW 10) , who le.ad beon ir;.vi tod to the :fa.rm by E:,10rsianc.. and FU1 • By 1985 when ,, the la.ncl in c.:ispute wn.s survoyec, these persons had stayed on 1 and cu.l·tivated, tb.e land. for OV3r ton yoa:;.."'n, In 1980 the third pln.inti:ff (PUJ) -applie-cl (~xt.?J) to the Mw2.nzc1 1-1;.i:1.icipo.l :i?lanner (DW~) :for the survey of' their land in They wanted to build :;_::;er:-:12.11.ent hou.sGo e.nd mod9rnise thGtir f2.r::.1h.:.6'• A reJ._Jly in 1983 (Ext •. 1?4) u2.s to the 0:ff0ct that the ' ap9lication would be attended to soon, In 1985 the plaintiffs thG:-.1. le2..r;.1.0c: ti1.c. t the la.nd he..d bee:r1 nurveyed c;iving rise to two I ri'2..rms ... f'ar;11s 2 and 3• Farm j was oi':fered to the :first defendan.t,. and tho fi-.re persons, including I-T::loge·, ~rnre paid a compensation totalling s::1s, 87 ,940/:: :for their crops anC: otaer unexhau::,ted Farm 2 was reserved :for f'irot plaintiff', and Ndege · rer.m.inoG• on .J:t"'"" 2.r□ 2 .,_valn.ng · · ..... o::i:'"' G. .'J.a i1ouooo a_""'u' caJ.-e J • • ak t'.,10 _ cr-0 .1:1.J·,-.,, :;; on bohalf of' the first plaintiff', u.D.til his d,eath in 1987. He was succeeded by one Maarifa ;anyozi (PW11) ,;-;ho is presently occupyin&" th2. t :f2.rm on behalf, and. with the cor:.n en t, of' the first plain tif'f • The pl2.i11.ti:f:fs ~10re aggrieved, and f'el t ,that they were robbed of tlc.Gir 12..nd and their l0tt0rs of protect (Exts P1, P2, P6, P7 e.. 1--..d. :..:is) proved futile. They thcn-1' f'ileo. the suit chalJ.engi.ng the o:ff'er o:f Farm J to the first C::.e:fendan-t, claiming that i t ,-ras u:n.12.fr:fu.J. • TI--::.0 cace :fo:::- the de:fenci.ants, on the oth0r hand, was that • , .. J. ~-'- 1979 tho :firnt def'e:ada.nt (mJ1), who is currently the Tabora ?;.0giono..l Co;n:nis::;ioner, applied (2.C.z:t., ::>1) for a plot in any part .-•...•... /3.- J He uao then the Bariadi Diotrict Commissioner. I.n 1 S'.80 t:10 tl-iird plai:n tiff loc. 6 od his a:,_1plica tion. The two applications Hero found e:..nc:. L-:;roceasad by the J.ctL1.g Mun.icipal He accompanied for Bviru :..roa showing Farms 2 CG1,d J 2.13 11110.r;i.:c:;a c:00s not h:.:1.VG a He made a survey request to the ~bting Regional Land ::iurveyor (:.J~JJ), aac-the survey wao ui1.dertc-1ce:n in 1984 giving ri □ e to ?ar20 2 and J. The two ·2.p:,_Jl:i_c·;cats ...,, the f'irst plantiff' a~d the first d0fendant, were allocated the F~rms - Farm 2 and Farm 3 - res~actively. The use of· the 1a.::::i.d uas agricultural 01-ily, 2...:1d accorc:ing to the pl2.m1ing standards of' that area, in~ividual plots were not to exc~ed J acres in size. The first d.efe.::1clan t I s o:ff'er was cla ted 28 • 11 • 85, ar::.d he :followed up the of'f'er anc, wao duly i:::;:::;uec. with a c0rti:fica te o:f occu:;c:u.1.cy nc.._; 2155 ( E;rt 35) ovor Farm J, Bwiru area, .f'or a toi~r:i of 99 years corm..,.encing This was duly roc:;ioterecl o:;:i 9th Novmnber~ 1985, The certificate ,of' Title contains in its schoclule a re,::;;;istored surv1,ry plc.:a (Ext,D7) shouing the boundnries of F,:::.r,,1s 2 a:"lcl J. Co □pensa tion to tho occupc:tn.ts of Farm J was proces::rnr.:l :)y the J:.cti:ag Municij_)21 lo.ncl o:fZicer (;J,.l4) who was the Senior Loc~stant Valuer. He vr2.G introducec:i. to the :five persons by the soc:;:-•otary to the cell lGac:er (i.~16) in the prescmce of' their CCM brs.nch secretary and othor vill2-gors,I Th0y uhowed ti1.::i c1Ginarcc.tior:o of' the f'arr:i and poi:ntecl out their crops and other une:xhauo ted i:-,,.:;_1rovenents • Their cell load.or, ]Ia:fula, confirmed in writing (3.xt D8) that F'arm J belonged to iklege. D1-!4 prepared a sch0dule of' compensation (zxt :04) ul:dd~ contained the names o:f the compensatees, a description o~ s~1nt they ware b0ing compensated for, c.ncl the amounts due to them. They we:;..~e paid and, '\-Ti thou t r2.isin.s any obj2ctions or cor:1~)laints, c:uly oignecl the com1)ense, tion scheC::.ule, a::; C:~id DW4, the :a.egional L:;;:,ud .:.)ov0J.opment Officer (:JT.15), the :Jist:.:-ict Commissioner anc1 the :let;·ional Commissioner, ••.••••• /4 4 It is the defendants' contention that the first defendant is the legal owrwr of Far.,i J, o.nd t;-1a t the rie:ht o:f occup2,ncy issued to hi@. The follo~-Ting issues, which I hnve tGkan l~borty to restructure, were agreed upon:- 1. i!hGtirnr tbe plaintiffs hac. a c',::iemec. rie;'l-1t of' occu2:x).::.,.cy be:fo:.~e the relevant land vas surveyod. I I so - 2. C:Ihoth0r th0 deemed right of' occupancy was surrondered upon J. Whether the offer o~ the lan~ to the first C:e:fG.~1.c~ant by the seco:nd defendo.nt wa::; l:.:;.1:.r:fu.J.... ~t.. .~1hether a deomed right of occupancy is applicable in an urban planning ::1.rea. 5, ReliefG. But, in the cou:cse o:f the trial, i t tra.nspired that the f'irst anC.: :fou:.~th is3ues were not in dispute:,i"J It was conceded th.at the first plaintiff had a deemed right o:.f 6ccup2.ncy over the land in ca.s:i_:mte in tei~ms o:f section 2 of' the Lane: Ordinance, Cap. 11 J, before the survey, as she had i1u~erited i t from her father. I say tho first plaintiff, und not all tho plaintiffs, f'or it 'rms tho .fii~st plaintiff' who hnd inl-:-.ori irec: tl"-e land, and there was .D.o evic~ence that she had bequeathed it, or any part thereof, to any of her sono - the second a1Lc. third pls.intif'fs. It was equally co,:wec:ed tha.t ~ - aren, uh.ore the l(;md in c:iopute is si tl.."iar-~t, is a 1)1.an.l.1.i.ng are2. wi t~-iin tho li.iunicipali ty of Mwanza. In addition to these matters not beiag in ~ispute, there was eviCence ~ram both sides establishing issues 1 en~ 4 in the af'firmn-tive •. I, therefore, hereby hold, in cormection with issueo 1 and 4, that before the su~vey the first plaintiff ~ad in tho pla::.n1i,.1.g urea of Bwiru, ui tl:li:a th.0 E:u.1.1.icipo.li ty of Fiwanza. Isoue nu;nber 2 attracted a·heatod argurneat :from both sides • • • •·• •••• /5 •. 5 - Mr. Maira. submitted thnt there Has no evidence that the Eresident had either o.cquired or revoked tlJ.G dsrnmed right of' occupancy u.nc:er eitho:;.~ section 10 of' Cap. 113 or section lt-5 of Cap. 378 res1:::Gctively. Tho. t may aG well ha.VG b0en the cc.. se but, with reo9ect, it appears to me to be out of context, for the question before the cou.:::.~t is whetl-rnr the. 2,:::a.yment of' co,,1pensa tion extinguished the deemec: right of occupancy. of c1ocic:ec'. c::coes, th0 r.10.jori ty of' which, nf'ter hc.ving had sight oi' ther:,, 2.ppoc.r to r.1e to bej ag2.i11. with Bven greater respect to ?lr. Vie.. i:;.~a, out o:f touch with the point in is::me, and others, c:.istinguioh2..ble :from the ~,resent c2,se. The near0st authority to ' the point ci te::l was the Court of J.._ppoo.l juc?.gE1eEt in Methuselah Dc.r 0s Sal2,nm (u.nrepo1~ted) in ,;,rl~ich, acco:cdin.g to Hr. Maira, i t was helc~ t2-:i.o.t a deemed right of occu~:::ancy, hold by virtue of native law and custom; is not extinguished upon. an area being cleclarec: to bo a planning area. Having had an opportwti.ty to ~eac!.. the Court of' .L.ppeal judgc1Gnt in Ifothuse:J.ah I s case, I find myself' u:.-'J.2.bl0 to agree with Mr. 11aira. That il'TaS not the ratio decide:nd.i of' t:--:.0 case. 'I'h0 decision of th a Court o:f 1..p:i.,)eal was different, 1 f~ct"' The :~ :· f of' the.. t case and the points :r'.:or decision were dif'f'eren.t. \Jha t tr2.rispired., for our purpo3es, was ::,imply that the Court of' i~ppeal felt w1.prepared to positively hold that a deemed right of oocupc,ncy extinguishes upon an area being· c1eclo.red a plan1ti.ng area on. the r2,th0r inconclusive and tenuous. argur:ients advanced be.fore it, a:;.1.d i:n view of' the still developing Tanzania law on Land :::,:1.0. Land Tenure whose certain areas ar0 u.nclear and would have to await th0 necessary legislation. L0t. me, for purposes .of: cla:1.~i ty, reproduce hereunder what lliustaf'a, J,.L.· said at page .5 of' trrn juc~c;E1ent which :formed the b2.sis J:'or Mr. Maira' s argument:- 11 I:n my view the law in Tanzania on Land and Land Tenure is still developing and certain areas are U.7.cloar and would have to await the t-~ • , ,ei~ 6 necec.aary legislation. At any rate, L§±.~--10t 1.)repared, 011. the,.£~'.£ i~+,._.~sive and tenuous . E ~ e ~ ad.vane Gd in this appeal, to .hold that ~~~~:r,,,s...__,._.,_, - - t~e right of a holder of a right of occal.)8.Hcy ·oy virtue o:f native law and custom is extinguished and he t~-iereby becoc.100 a II squatter" on an area being decla::..~ed a planning area 11 • (Em]?hasj.o_,111::1:-.,21,~) ~· I would agree Hith Hr~ Kahangwa; and hold that; l'1ethusel.ah•s case io not a positive autl-iori ty for oJ..~ against a legal propositi.o.n that a deemed rig}1t of' occu~.)ancy; either exti11.gu.ishes or does not e:z:.·bingu.ish, upon a::.1. area being decla:;..~od a pla:n11.i11g area. However,;. the events in this case did not end with the land being declared a pla:c.Ll.1.ing area. Compensation fo~ un~xhausted ioprovemG-nt-5 ~a~ pai.(i in cor1r..L0ction with Farm J and, for my part, I would not hani tate to hold that payment o~ co:·~1pensation to a holder of' a ex.·t.J.llgUJ.:JilGO . , that ::..~ight~ for it s;rnuld n:0~"'1 the su:.--render of' the same. tt,e comp0r1sat:1..on extinguiol-10,cJ the :first pl.ainti:ff I s deemed right.{).!' occup;:.incy in co:c::.Eection wi ti1. Farm J. I1ii..~~ I'iai:~a :CiaS 13ubmi t ted that the compenoatee::, were cul ti va tors and/ or users of' tl:.e laUfil 1rTi th per:::iission and ·✓7ere cot:1pensa ted only for their 01-rn lli-:texhaus ted irnprove::10.::rto ~ He :further argued that they had no right i.n the land which they could. have ourrendered s.ince the intereot in the land was with -'che ..fir.s'.t plaintiff''• With '..i."'oopect, I am not, on the evidence,. persuaded by that The cor.1pe11.satees may as •~rell have recognized the :first 'plaintiff' as the owner of ti1e land, },)ut it 1-IOuld appear that they kept -t;:1a t 1-::nowlecige to themselves·. A dif':ferent picture was portrayed to third parties, All the cornp.ensa·tees, except Ndeg.e, physically st2sy0d a:1.d lived on Farm 3 where ,they had houses, families an~ a variety of crops. TI1ey h::.d, ~Ji ·th· 1 cave and lc:iowlod.gG oi' t~').e first. plaintiff', thus :i,.~e;r::12.i;r:0C:. in occupation for Il1. actual f'act, tl':ey were the occupors anc;';. .... 7 ... developers It is in evidence that they did not tell tie1e th.G compensation was assessed, that the land belonged to person or paraons other than themselves. They were introduced by th,d village leaders (PU6) as occupiers of the land, and they then sho;,,red the boundar:i.'.es of' .their lcmd as well as their property. They held themselves out to .the asseasora as the owners o:f the lru1.d, and they accepted the cor:ipense. tion without remorse or complaint. An atter:.1pt was made by Er •. Viaii~a to chall.enge the procedure follo,,rncl in assessing the cornpeusatioil by claiming that tl1.e cor:ipensation r.-ras e:f:fected by force and that the compensatees were not given t.he rigi1 t of' :first option:. "(:Jith respect, I do no-t agree. I·b m0.o 0:::.tablished i.n -Gvid.e.r.,_oe.i il:J..C.l.uding: that of' the compe...'1.s2.tees tl10moel ves, th.at such a thing never happened. I am satisfied thn-t ti1.e corr'ect 1)rocedur0 was .:fol.lo~1ed in the assessment 11 and in t~1e · effecting• of the comp,e;;1.z.s.t.ion., In tb.0 cir,eu.n.1Stauo~s. third pnrties, in my view, had a. right to believe that the 001:i.pensa tees were both the onwers of the land and the property I f'ino. substance in th0 su::,t:1icsion by the. lea.r1wd. a.dvo-c.atR..~,. for the defenc:ants that, in the evGnt that t;J:1e first plaintif':f' s right of' occu)..::;ancy were not extingui::;hed upon the land being declared a pla:1.m.ing c:-.reat then it was r:10st certainly ex.tinguish.ed upo.n payr:nan:t of tha compansation. The Gtatus of' Ndege, in my view, aggravated the :~iatter to the detri~ent of the plaintiffs. He had been paid compensation, both for his unexb.2,trnted improvements and. tl1os0 o:f the first plaintiff'. · Hr. Me.irc:1 a:cgued that he was neither an agent nor a rapr0sentatiV\'7 of' the f'irst; plaintiff', whereas both i½'.r., Ka:i:1.angi-ra and Hr. Ha ta ta :ne.in.tainod that ne was, He had boo,."l i:n.vi ted to tl-:-,e land by Zmersiana, ~ri·~h le2.v0 of' the first plaintiff, an.c:. took over the care 2,nc.. r::mc.2,g0:,10nt of the land from Emers.iana, again with leave o:f the :fi1~st pL-:.intii':f, at the death of' Zmersiana. J:.n. attempt was ma<le to t:fr20w that tJ:1ere wer0 thing::i which ~,eraiana could do or was empowor0cl to c1o, but which Hdege could not Clo or wees not 0mpowered to c:o. In othor w,ords, an attempt t-ras r:-.aca to show that ZrnersianD., ••••••• /8; 8 as a representative of the first plaintiff, had more authority and :,,ore pow0r of representation tha11. that o:f Hdege. ·uith genuine r0spoct, I am not persuaded that there was such a distinction, or th2.t such a distinction co<-1.lcl be drm•m.· Evidence establichad the contrary. Bo~h :J:mersiana and Hdege werG relatives of the plaintiffs, They both stayed i:n the houses of the first pl2.intiff on Farm 2. Ndege stepped into tb.e shoes of Emersiana upon her c~0ath, and his terms of re:ferei"1ce, as those of' _Emersiana..,,· were a11e8·odly v0rbaJ.. Unf'ortun.a teJ.y, both A'l.Qroiana and. Nd~g.;i. ar9- · dead, and i t rec,ai:::rn a matter for conjectu..r-e an to what their version of' tho ins&ructionf.3 b.etwsen tL.emseives a:..,.d the :first plaintiff could have been, By opting to stay away :from the land of Zmersi2.na and Ik1ege, the. :first plain·t.if:f munt be t~ken to ha VG intended th.ed:; thiro. parties should have t£:'..k0:n tho bro as persons with her exp:r·osc and implied authority to act on her behalf. It was no doubt in acknowledgement of t:i::i,is that the plai...•1..-t~££-5 . o ~ · not to proceecl agai.i1.s t lJdege, but to let him -0-ont.il.1.ue to stay on th.e lo..ncl "Lm.til his clea th in 1987,, There is evidence from the cell 102,c~er (zxt :18), which was inti---oduced ·at ·the instance of' -'.;he plai:1.tif:fs 1 2.G.voc2'.te, the.t Ndege was being reg2,rC: at the viJ.J.ae,:e as the ow:ner of' that part of the land iLdch became Farra J. This piece of evidGnce lends substantial support to ,,r3:'J.at the Senior Assistant Valuer (DW4) told the court, that Ndege held himself' out as the ovmer of' Farm J at the time of: the aso0ssment of' the compensation. B0 that as it may, I do not think, in my consi-da.red opinion, that it is now open to. the pl2.intiffs to c.isovm l.Jdege., I nm :tatisficd that Hdege, as had been :J;mersian..a, was the a.gGnt- and re.l:,):r~ese1. . tr-1 ,'-1.' ve o·? t "'e p~~ip.~J!'_:fq - • .L ,__ V .t:,. 7 .L..i. •~ .... f• a,,.,,1 ;.; -·'• ..•• ..._ 1 --1-,-.,,, t '~e h,..,d --..-..C'"'"' • ,.., ~ .1. ol,.1,.U ved the V.J.LC.-:.. .1..t. (..1, ~ ~.l. comparisntiori on their behalf. For all the :foregoing reasons, I would; ther0;for0, hold. issue number 2 i:n the affirmative, and hereby find that th0 first plaintiff 1 s deemed right of occupancy over Farm J uas s1.,n~rc...'1.dered upon payment of the compensation • ...·...... /9.: .. 9 Laat in line f'or consideration is the third issue - vlhether the o:ff'er o:f Fnrm J to the first def'cnclant wan lcLwf'u.l. r1r. Maira 1 s argurnent on thi.s l)Oint was that as the plninti:f.fs had the land, tne Gedond d0f0n~ant had no land to alloc~te to the first defendant, ancl that ·che allocation was theref'orG unlawful with no legal .forc0. It see1:1s to me thc t this argument is :now obsolete in view of my finding in issue·2• It is not in dispute t;ha t tl10 soconcl de.fend.ant is a pla1u1.ing authority. The firct defendant haQ applied for a plot ii-1 Bwiru area in the normal and u::mal manner. Th0 evidence on recorc! speaks f'or it.self'. Thero wo.s 110 GviclencG of any f'raucl.e The 2..pplicatio11. was processed by the :relevant Com,p,Gt.Gnt aut.h.ori,~ea, in the :normo.l and uGual muiu-ier. 1'}1e COLlpe,usa tion wc..s assessed and paid under c:i.rcl.-:1:-.rntunces which, as alre~dy held, did not .,_. C::isclose c:..1-.1.y i':a.ult. I find nothing suggesl,ive of:, ·1et alone to establish, that the discretion to allocate the land was improperly exercisecl. The first plain.tiff' was. uot deiti.ad a p;La.o~ of land. She has at her·disposal Fe.rm 2 which, in f'aci;, J.s presently being occupied by a person of her cl10ic0 (P\'111) • It is in evid0nc0 that according to the plalu~ing Gt~n~ards of the arent il-1clividual plots were not to exoeed three acres. I am satisfied that the first. de.fendant' s right of occu.:_J8:l1Cy was issued in proper circw:1ste.nces, and that it was· obtained legally and without fraud. I hold the third insue in th.0 affirmative.: In the f'i:.1al ai1.alysis there.fore, I am aa tiof'i0d, upon the foregoing refasons, that the plaintiffs' cl~,dm must t on the balance..; of probabilities, fai+• The suit is hereby dismissed with costs. B.P. I10SHI JU.:JGE For first cle:fenclant - Hr. I(ahangwa For seconc. def'GD.c.1ant - Mr. Ma ta ta