NA TZCA Dar es Salaam2

........... ' t •-,, .1·•J . . ~ :-" ff/t. . IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM '!; ~ ( CORAM: Mwa · k asend o, J .Ao, · Makame_,. J.h. ~ - - J.A~) and Klsanq~, CIVIL APPEAL NO. 7 OF 198_2 ·BETW'EEN • THE REGISTRAR OF BUILDINGS.• , · •• ••• APPELLANT AND DR-. A. H. KOMBE •• •·• •·• ... •• · RESPONDENT (Appeal from the Judgment and decree of ·the High Court;Df Tanzania at.Dar es Salaam (The Honourable Mr. Justice R. J. L. Ruhumbika) dated 4th February, 1982) in Civil Case No. 223 .of 1980 ------------- JUDGMENT OF THE COURT KISANGA, J.A.: This appeal aris~s from the decision of the High Cour~ at . Dar es Salaam declaring the respondent, ·Dr. Alli Hussein Kombe, to be .the legal owner of the suit premises,· and granting a perpetual injunction restraining the appeilant, the Registrar of Buildings, from interfering with the .. respondent' s ·occupation and enjoyment of the said premises.· Very briefly the facts of the case were as follows:- The suit premises, consisting of a block .of·flats for six families and situated at plot No.603, Upanga -ir Area., in the City of Dar es. Salaam, originally belonged to one Mrs. Jagdish Kauro ·The building was , r, acquired by the Government under the Acquisition of Buildings Act· L I 1971, but subsequently it was returned to her, on grounds of hardship, for the rest of her life only. In the meantime, however, sh0 sold it _to Dr. Kombe, the respondent, for shs. 130,000/-. The transaction was -concluded on her behalf by one Mr. Sher Singh to whom she had.given power of attorney, but it is not apparent· from the rec'ord where Mrs .. Kaur _ herself was or is now. Dr. Kombe paid Shs. 80,000/- o~ the purchase -- ·price from a loan raised with the Tanzania Housing Ba~ by mortgaging to the Bank the very building in question; he.raised the rc:maining Shs .. 50 ► 000/- from his own resources. When he -was trying to get' vacant possession of the building, however, the Registrar of Buildings,. who- sball _l)Q re:f<.i>~=~..;;1 +:...,. hQre.i.n=d? ♦:.::.r -oimply as the Registrar,. intE.;.rvened clalrnlna ..,,,.,norohi.p of the building and demanded rent from the tenants staying therein. ••oooo/2. J l The tjue?tlon which arises in---these proceedings essentially '~ turns on fhe naful;'e of, the interest which Mrs. Kaur acquired V.rhe~, .~ ~ .i ; ~ -: subsequesnt to tl"t= acquisition, the building in question was returned to her nn hardship grounds~ That is to say, what kind of esta'te or interest in the property did she get when that propo.t'ty. was restored to her in those circumstances? Both counsel appcar:ii~> for the parties at the trial submitted that Mrs. Kaur acquired th€ legal title to the property, and the learned trial judge upheld the submission. But counsel for the Registrar went further and submitted that the legal title thus vested in Mrs. Kaur only tamporari_ly and /4 A' that ir.,(',e event of her death it would revert to his cliant, the Registrar. The learned judge, however, rejected that view and held that upon the property being thus returned to Mrs. K~ur; the legal title·vested in her permanently and that it would never, upon her death, revert to the Registrar. At the hearing of the appeal before us Mr. R. c. Kesaria for the appellant submitted, in effect, that when the building was returned to Mrs. Kaur the legal title did not pass to her but remain~d vested in the Registrar. So that under the purported sale of the building no legal title passed to Dr. Kombe for the simple reason that Mrs. Kaur, the vendor, had no such title which she could have: passe,d to him.· Mr. H. Mkondya appearing for the respondent Dr. Kombe, however, vigorously resisted the submission. He cont3nded that when the building was acquired by the Government the legal title did not pass to the Registrar for twu reasons. First, the Registrar did not take steps to secure the surrender to himself of the docum~nts of title. That is to say after the acquisition of the building the title deed continued to be in possession of Mrs. Kaur. S~condly, the Registrar did not take st~ps to ensure that his name was duly registered with the Registrar of Titles as the new owner in place of Mrs. Kaur. For, according to Mr. Mkondya, the act of acquisition alone was not enough; the two steps as mentioned above were necessary as a further assurance in order to vest the legal title in the Registrar. ·( \ Sectiq~ ~(2) of the Acqusition of Buildings Act 1971 provides 1 1 , , •{~\'/ ·, • ._ that: - '' . ' . "1 ;\,,,, i.• ( . •;: 1 !'i(2'Y "i¥ip~~JJ,,:~nt:r.··P.ui1ding is acquired under this •'\Ct , the f.'•·· .• · l'{j''• .. "':, • ··· ifff J • . h~~id,'ia9 .thfe: right of occupancy·1.in r,?spect of the . htn'd~ UROn ~~lj;afl: the · build~_ng is s;i. tµa t<f·and al 1 other ·b,1)1~1,<'f:in-gs,rn)ousn's,-. outhou.~es, and othe•r st.ructures ~p-~'· such ~in'~ sha ll, with ·effect from the·. effective d- te: 0 ,an~ _'·~y virtil~e~1.~f such acqui s,i t;ion notic'e and without c., ' f-µ~~b.~r _assur·ance, vest in }h~ Registrar fr:;::: of urlY mortg,::ge, ch::,rg·_-., trust or 8tnpr incumbrt1nc:~ ··1::.a,ts-oei,,;,cr, ,,,.. I - 3 ... saV'Ei to .the extent hereinafter provided, ,;md the Registrar shall hdld t~e same subject to the directidns of the President". The reservations which are contemplated by" th'e sub-section are se:t out in Section 9(1) of the Act which provides, in effect, that the property vests in the Registrar subject to any subsisting mortgage or charge. Those reservations, however, are not applicable to this case because there was no mortgage or charge subsisting at the time of acquiring the building in questiono On reading section 4(2) quoted above and applying it to the facts of this case, it becomes very clear that when that sub-section operated the property in the acquired building automatically vested in the Registrar. There could be no other meaning which could reasonably be assign~d to the provision. We have carefully perused the provisions of the Acquisition of Buildings Act but we have not found any provision which imposes on the Registrar the obligation to do the two things mentioned by counsel, or to do anythin0 at all for that matter, as a further assurance to vest the legal title in him. We shall examine this aspect of tha case in more detail later on in this judgment but for the moment suffice it to say that in our view the learned trial judge was justified in holding that following the acquisition of the building in question the legal title vested in the Registrar. We now turn to the real question which was posed in these proceedings, namely, what kind of interest did Mrso Kaur acquire when, subsequent to the acquisition, the building-was returned to her? The building was returned to her through a letter, which was put in evidence as Ex. D2, addressed to her by the Registrar 0 The letter was in Kiswahili language and the operative part of it reads:- "Kutokana na ombi lako la kutaka kurudish.:i.wa nyumba iliyoko kw,'=nye kiwanja kilichoko hapo juu, nimaelckozwa na Waziri wa Ardhi, Nyumba na Maendeleo Mijini kukuarifu kuwa ombi lako limekubaliwao Nyumba hiyo iliyotajwa hapo juu imerudishwa kwa.ko kuanzia tarehe 1 Agost, 1972 kwa muda wa maisha yako tu". In sum, the position appears to be that after the Hardships Committee considered Mrs. Kaur~s representations, the Minister for Lands, Housing and Urban Development directed the Reg1.·s·trar t t b ore urn the uilding to Mrso Kaur for the rest of her life only. We experienced some difficulty about the said Hardshi·ps Comm1·ttee 0 Its exist8ncc is nowhere provided for ct th un er e ncquisition of Buildings Act, and so we were rather anxious about the legality of the role it pl2.ycd in dealing with the question of return1.·na th - :1 , c buildi·~, to Mr~ I~ 2 ur 0 4 - · t he di rec t·ion by the Mi'nister as contained in Ex. D2e resulting in However, upon reflection we have come to the conclusion that what • the Committee and the Minister did was in accordance with that part of section 4(2) of the Acquisition of Buildings Act which providE::s that the Registrar shall hold the acquired property subject to the directions of the President~ That is to say the Committee and the Minister w!-1 were here acting on behalf, or under the dir3ctions, of the President·in thus returning the building to Mrse Kaur. The learned trial judge appears to h·ave held the same view al though he does not say·so expressly. However,heeM!r~ttftlrther and held that the direction by the-Minister whi~h li~ited Mrs. Kaur's interest to her life time only was void. In arriving at that conclusion he first . took the view that the letter (Ex.D2) whi.ch contained the Minister's direction was subject to compulsory registration under section 8(1)(a) of the _Regi~_tration of Documents Ordinance (Cap. 117), but tho same had .not b'een duly registered. He then relied on section 9 of the same Ordinance and further cited the case of -Director - - - - - - - - - - ·of ....._Lands v. Sohan Sin•h _ _ _ _,.,_.,..___ m.s ·. l T.L.R. 631 to say that non-registration of that document rendered it '.inadmissible and hence legally ineffectual to limit Mrs. Kaur' s interest as ,it purported to do.· Thus he concluded that upon· the building being .,returned to Mrs. Kaurio the entire interest in· the property including the :legal title· revertedlor re-vested in her, and that nothing that was done ,could,- in law, be said to have affected that position. With due respect to the learned judge we think that such reasoning and .conclusion cannot be sustained.'· · For, once it was held that upon ,the ~ccruis_ition of the builriing the legal title vested in thtJ Registrar, then that title has remained vested in the Registrar to-datG becciuse ,tf1e Goverl')rnent has n_ot done anything which either expressly or by implication signified its intention to revoke the acquisition. It is undisputed that ,the only act done by the Government after acquiring the building was to return i:t., vide the letter Ex. D2 to Mrse Kaur during her life time. The question is, can the Government, in ·50 doing, be said to have ;intended de-nationalization of the building? We think not. It seems that even if we were to put on Ex 0 D2 a construction that was most favourable to Mrs. Kaur, it cannot reasonably be said that the Government intended to revoke· .the acquisition., In our view what the Government really intended to do, and what it in fact did, was to create a lesser or limited interest in favour of .Mrs 0 Kaur while it (the Government) itself retained the lega1 title to the property. The interest so created was to all intent and purposes a licence to enjoy the fruits of the su.it premises; it am~unted to nc more than that~ - 5 - To construe ExoD2 otherwise,would, ~n our view, amount to a Clear 'distortion of the express intention by the Governmento ., ~· ihe vie~· that· t he l e tt er E. x. D2 , 11.·mi·t·i·ng Mrs. Kaur's interest was void for ~~nt of tegisttation seems untenable~ Section 15(1) of the Acquisition of Buildings Act provides: "15-(1) The provisions of this Act shall tak,3 pfrcct notwithstanding any provision to the contrary in the Lands Ordinance, the Rent Restriction Act, 1962 or any other written law"o This clearly shows that the provisions of this Act are overriding. This means that upon the acquisition of any building under the Act, the legal title vests in the Registrar notwithstanding what any other written law says. In the instant case therefore, the moment the building was acquired the legal title vest3d in the Registrar notwithstanding the requirement of compulsory registration under the Registration of Documents Ordinance. / Thus it amounts to saying that from the time of the acquisition the legal title remained vested in the Registrar to-date, and .. at no time was it ever divested from him. It now becomes apparent that the purported sale of the building by Mrs. Kaur cannot have passed the legal title to Dr. Kombe because the former did not have that title at the time of the purported sale. In other words Mrso Kaur could not pass to Dr. Kombe a title which sh•-= herself did not have. It necessarily follows from this that Dro Kombe's claim to be the legal owner of the suit premises is without a base and hence untenableo With respect to the learned trial judge, therefore, he erred in holding that Dr. Kombe became the legal owner following the purported sale of the building to him, It is convenient at this st~ge to refer, although only briefly, to two points or matters which Mr. Mkondya dwelt upon at great length when arguing this appeal before use He contended that Dro Kombe had complied with all the legal requirements ~nd procedures which were necessary in order to ensure that he got a good title to the building he was trying to purchase. For instance he duly conducted an official search which revealed that the building was registered in the name of Mrs. Kaur and there were no incumb~anoess entered against her title; after concluding the sale agr:::om::.:Dt he secured the execution of the deed. of transfer of the building in qis favour; he obtained the consent of the Land Office to the transfer and he duly registered the transaction with the Registrar of Titlcse oeeoo 0 /6,., rjro Mkondya, therefore, submitted with great force th~t his client, after having done all those things, should not be penalizedo But it ~s plain that this submission does not hold water. Onc2. it is held t.hat the legal title vest,~d in the Registrar from the d::i.te of the acquisition todate, Mr. Mkondya's argument becomes totally irrelevant. For, if Dr. Kombe, through some misconception, misinformation or misguidance> tried to acquire the legal title from Mrs. Kaur who had no such title, and that in so doing he acted dilig·antly 2nd even honestly, that is neither here nor there; diligence and honesty by themselves cannot create a right or title where one do~s not exist. In other words as between Dr. Kombe and the Registrar, there was no nexus or link whatsoever forming the basis for any obligation which could be construed as entitling Dr. Kombe to lay a claim to the legal title as against the Registrar. The second leg of Mr. Mkondya's argument was that the Registrar / was grossly negligent and that but for such gross nc-!glig,~nce Dr. Kombe would not have entered into ·the transaction with Mrs. Kaur. Tho alleged negligence on the part of the Registrar consist3d of the failure to secure the surrender to himself of the documents of title to the building following its acquisition. That is to say after the building was acquired the title deed continued to be in Mrs. Kaur's possession thus giving the impression that Mrs. Kaur w~s still the legal , ,~owner, and had Dr. Kombe been aware that Mrs. Kaur was not, in fact, the legal owner he would not have dealt with her at all. The Registrar was further negligent, Mr. Mkondya all-."ged, in failing to have his name substituted in the records of the Registrar of Titles as the new owner instead of Mrs. Kauro Once again, couns,~l want on, this gave Dr. Kombe the impression, when conducting the official search, that Mrs. Kaur was the legal owner of the building, but had he been aware that this was in fact not so he would not have c::mtract0.d with Mrso Kaur to buy the propertyo But th8 answer to this submission is similar to that as contained in the preceding paragraph. Since there wasn't any dealing or link between Dr. Kombe and the Registrar, can the alleged action of negligence alone, even if it be proved, form the basis for Dro Kombe's claim to the legal title as ag3inst the Registrar? We think that it cannot. It might found some other action, say, for a suit t~ recover damages, but certainly not For the racovery of the legal title. Having come to that view we ~onsider it not necessary now to go into the question whether the Registrar was, in f2ct, ne~ligent or noto Thus we can f~nJ r;o merit in both submissions by Mr. Mkondya and we reject them accordingly 0 I .. 7 - We have been at pains to consider whether Dre Kombe, although he did not get the legal title, acquired any interest in the property ~ at all under the transa:ctionc The matter may be put som,::!what differently. The Govt~rnment permitted Mrs. Kaur to enjo_Y the fruits of the suit premises for the rest of her life. For th3 r2asons given earlier in this judgment, the interest thus created in her favour was less than the legal title; it was a mere licenceo· Now the question is: since Mrs. Kaur by the sale agreement clzarly intended to relinquish all her claim and interest in tha proporty in favour of Dr. Kombe, could such lesser interest or licence as Jirc she had, not have passed under the transaction so that Dr. Kombe might hold and enjoy such interest during the life time of Mr$ Kaur? This means that the Registrar would hold the legal title subject to such lesser interest which passed to Dr. Kombe under the transaction. That is to say, Dr. Kombe's interest would be binding on the Registrar. But this would appear to offend against proviso (a) to section 9(1) of the Acquisition of Buildings Act. The relevant part of ~~e subs~ction provides:- Notwithstanding any provision of this Act to the u9_(1) contrary, where a building or a right of occupancy in relation to any building acquired under this ii.ct is subject to a mortgage, whether legal or equitable, or any other charge crea tc~d by way of security for the p::iyment of nny sum of money, the property shall upon acquisition vest in the Registrar subject to such mortgage or, as the case may be charge: Provided that the provisions of this subsection shall not apply to any mortgage or charge (a) created after the coming into operation of this Act, unless, such mortgage or charge was created with the consent in writing of the RP.gistrar;" The effect of this provision is that any mortgage or charge~ crente:d after the acquisition of a building shall not bind the fiegistrar unless it was created with his written consento It is cl2ar that Dro Kombe's interest was created after the suit premises wore acquired. It is equally clear that the Registrar did not consent to tho creation of that interest in Dro Kombe's favouro Whether Dr. Kombe's interest was a mortgage or a charge within the meaning of section 9(1) quoted above is perhaps arguable. But even assuming in Dr. Kombe's favour that it amounted to either a mortgage or charge, in terms of the proviso to the subsection such mortgage or charge was clearly invalid as against the Registrar for the simple reason that the Registrar did not consent to its creation, -"ind he was not otherwise connecte:d with •00000/80 I the transaction that created ito Trms as against th,2 Registrur such u"--7--- ~ - interest becomes unmainta1.na 11 --""' ~~~ • bl e un d er th e ,cqu1.s1. '\. . . t1.· on of Buildings . ~' ~Act, and there is otherwise no provision of the law under which it could be sustainedo In the final analysis Dro Kombe's interest was completely void as against th~ Registrar. In this connection a question arose whether it was l--:!gi timate or proper for the Registrar to resume possession of the build,ing or to demand rent from the tenants therein when it was not astablishcd that / Mrs 0 Kaur was deada The purpose of this argument, no doubt, was to try to give Dro Kombe a relief by treating the transaction as one whereby Mrso Kaur had let the building to Dro Kombe and collected rent in advanceo So that Dro Kombe might claim to remain in occupation, in consideration for the rent so paid, for as long as Mrso Kaur was aliveo We have given due consider3tion to this submission but have come to the conclusion that it cannot avail Dro Kombe eithero For, such a claim by Dro Kombe amounts to an interest created after the-acquisition of the building which interest, as shown earlier, is void as against the Registrar because the latter did not consent to it, and he was not otherwise connected with the transaction creating it. On the other hand when the Government returned the building to Mrso Kaur and allowed her to enjoy the fruits thereof for the rest of her life, it seems plain that this was on the understanding that Mrso Kaur would enjoy that right but, at the sam~ time, recognize / the Government as the owner of the buildingo That is to say, there was in the grant to her an implied term that she shall recognize the Government as the legal owner and that her grant was to terminate upon her death in which case the Government would step in and reap ·• those profits itself o In purporting to sel 1 the building 1 she clearly acted in a manner that was ~ i ! n : i ' z : l with the implied term of her granto Her action was prejudicial to the interests of the Government (the grantor) in as much as it was designed or calculated to deprive the Government of the legal title to the propertye It was intended, if you wish, to defraud the Governmento In our view this amounted to a breach of a major or fundamental term of the grant which breach warranted a forfeiture of her grant and entitled the Governmrnt to resume immediately the occupation of the premises as it dido The question of Mrs. Kaur being dead or alive is totally irrelevant 0 • 0 .0 0 0 0 /9 0