20160812 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA LAND APPEAL NO.26 OF 2015 (From the Decision of the District Land and Housing Tribunal of Mbeya District at Mbeya. In. Land Case No.120 of 2014) TUBONE VERSUS ii BEY'A C11Y COUF'1CIl_. ........................... .......... ........ RESPONDE1'1TS JUDGMENT 22.06. 2016 & 12.08.2016 CHOCHA, J: Tubone Mwambeta (appellant) through Mr. Mushokorwa Advocate, is not happy with the Mbeya District Land and Housing Tribunal decision which denied him a claim of Tshs 48;781,000/= compensation for specific damages and being construction costs of the suit premise, general damages and other reliefs specified in paragraph 8 of the claim. The claim is based on the suspected unlawful demolition of the suit premise erected by the appellant at South Gombe - Uyole Mbeya. The suitpremise was located on an unspecified land measuring 38x36 paces. The Respondent is Mbeya City Council. The suit premise was pulled down to the ground after having been constructed to the linter stage. The demolition was directed by the respondent and under the supervision of its employee, one Denis Teobard who featured as DW1 during the trial. The appellant through his advocate is inviting this court to assist him to respond there by resolve a number of controversial issue. He had poised similar questions during the trial. He asks for example; I) What was the rationale of demolishing the suit premise whereas the respondent was in possession of a duly paid application for a building permit. ii) He is asking this court to fault the trial tribunal's decision for its failure to take into account DW1's self "confession"that it was a wrong decision for the respondent to demolish the suit premise the existence of the application notwithstanding. Actually during the hearing of the appeal, the learned appellant's advocate submitted, which was vehemently resisted by the respondent's counsel; that actually he was in possession of the permit. I propose to restate albeit briefly, facts giving rise to the present consequences. On the 08th November 2013 the appellant purchased a piece of land from Joyce Jombe at Gombe South, Itezi Ward. The land measured 25x36 paces. It contained trees. The sale was witnessed by six independent witnesses. It was further witnessed by the street Executive Officer one Christina, and Abed Daud, a Street council member. Subsequently, on the 2 December 2013 he bought another piece measuring 13x36 from Josephat Ndolela. It too, contained trees and was adjacent to the former. The sale was again witnessed by the same Christina Athakwani (a Gombe Street Executive Officer) and three other independent witnesses. The sale agreements were all condensed in writing and tendered during trial as EXHIBIT P1 and 2 respectively. On the 10th December 2013 the appellant applied to the City Director, via the street and Ward Executive Officer, seeking for a building permit of a residential house on the plots. On the 27th December 2013, he paid to the City Council Tshs 36,000/=. He was issued receipt no 63273 of even date. It was endorsed on the receipt that the said payments were for "k/ba/i cha ujen4"whereas the application was marked 'P2 COLLECTIVELY" (sic), the receipt was marked "EXHIBIT 3". The appellant did not end there. He attached to the application two sketch drawings for the ground floor plan and rear and front elevation. They were also, I presume mistakenly, marked EXHIBIT 3 because EXHIBIT P3 constituting a receipt had already been tendered. Broken heartedly I suppose, the appellant annexed two photocopy steel pictures, one showing the house under construction with its walls at the linter. The other displays a ruin. The 3 rd paper contains a complaint to the City Director for the unlawful demolition. All three papers were collectively marked P4. That chain of events is what the appellant, felt that it constitutes sufficient cause of action against the unlawful demolition act of the structure to entitle him compensation of Tshs 48.78 1.000/= as itemized in a self created "schedu/e' 3 The Respondent resisted during the trial and is maintaining that resistance here on appeal, any liability resulting from the demolition. The respondent's lawyer submitted in endeavour to justify the act that the appellant had undertaken construction of the suitpremise at his own peril, firstly because the land upon which the suitpremise he had erected was not his, secondly, that he had not been authorized, thirdly that he was warned to stop from undertaking any further developments which he obstinated, fourthly he refused upon being asked to demolish the structure on his own. During the trial the respondent tendered a copy of the certificate of Occupancy. From that document, it is now clear that infact the suitland was surveyed. It constituted Plot no 6 Block BB Uyole Industrial Area Mbeya City which had been allocated to Elvis Ruta Kamara who transferred his R/O Khebhandza Marketing Co Ltd. That happened on the 1 st July 2011. The bunch of documents including an extract of the sketch plan showing the details of the plot, together with a copy of the stop order dated 10th February 2014 constituted EXHIBIT Dl. EXHIBT D2 constitute a batch of photographic pictures no 1-6 showing a suitpremise structure at its various stages from its preliminary initial stages, to the ruins. A close look of picture no 02, reveals the structure was already marked X, before the construction matured to the stage represented by pictorial expression no 04. The respondent submitted that the appellant was uncooperative when served with a notice of demolition which he refused to sign, thereby compelling the respondent's forceful intervention by demolishing the structure. As said, the appellant is sad with the District Land and Housing Tribunal's decision. Upon my evaluation of the parties' dialogue, the new issue raised is whether the appellant had a building permit at the time the suitpremise was demolished. Otherwise during trial, the trial tribunal properly drew up issues and attempted to resolve them, considering the evidence before it. In that context, parties' additional remarks raised during the hearing of the appeal related to the issues drawn during the trial may be revamped upon need. In endeavour to respond to the issue it troubled this court to examine the documents which the appellant claims they constitute building permit. The documents relied on are an application and a receipt referred too as P2 COLLECTIVELY and EXHIBIT P3. According to the Blacks Law Dictionary, an application is translated to mean: "The action or process of making a formal request." Admittedly a request is a polite way of asking for something. An application in the sense of request is capable of only two outcomes. Either refusal or permission. It defeats the purpose or rationale of the application if the applicant begins to implement what he had applied for before he is granted leave by the appropriate authority. This may be illustrated by few practical examples. A lawyer whoseappeal or application is by operation of law subject of leave of the court, cannot initiate the process unless and until so granted. Where the required leave is not 5'w obtained the intended appeal or application becomes incompetent. Else, an aspirant of whatever portfolio, does not assume the intended post unless and until is so granted and cleared by an appropriate authority. There are so many illustrations one may cite. Suffice to conclude at this juncture that an application that has not yet been approved does not confer powers to the applicant to assume obligations intended in the application. How would a building permit look like, that was well covered by the trial tribunal. It is a question of law vide GN 242/08 which provides for the required format as described under R. 124. The referenced impugned papers to do not fall within that context. In answer to the issue therefore I find the papers neither amounted nor constituted a building permit. I am apprehending the appellant's fear over the possible delay from the respondent to respond to the application lodged by himself. The appellant is not alone on that. Actually there is an unhappy practice by some unfaithful land officers who for personal interests delay the stakeholders' land related processes. Construction projects usually fluctuate with socio-economic reforms In this country and I presume elsewhere, cost of building materials rise every day if not after some few hours. So, it is prudent that applications for building permits should be as nearly as practicable fast-tracked regard being paid to the fact that delays may result in additional costs capable of frustrating the project. If I may borrow the famous lawyers' slogan 'justice delayed is justice denied' That is another way of saying that delay in considering the application timely have serious setback consequences on building plans. So timely fI action is a cross - cutting motto, not meant for only the judiciary. Similarly however, a fear that 'justice hurried is justice buried"must not be ignored under the circumstances of this case. In the circumstances of the case at hand, it would constitute irresponsibility of the highest degree if the application was approved or granted without conducting necessary appropriate investigation of its proprietness and in effect the lawfulness of the suitland. I said already that the lawfulness issue of the suitland was properly drawn and addressed too. If I may restate the chronology of events, albeit at the risk of repeatation. It took only four months between 8th November 2013 - 5th March 2014 for all what we are discussing to happen. The purchasing of the suitland began on 5th November 2013. By December 6th 2013 the appellant was through with the purchase exercise. He then was involved in the construction process beginning with the drawing of the building plans, seeking/applying for building permits, and the actual construction. The structure had rose up to the linter stage within the next three months, of course as noted already, without being in possession of a building permit. And, by mid-February 2014 he was already in confrontation with the City fathers who blocked any further construction and infact exercised powers to demolish the standing structure. The appellant was indeed very fast presumably to overcome the rising costs of building materials. I am afraid he was however too quick and impartial. The Swahili say "mwenda pole hajikwai, aklfikwaa haanguki, akianguka ikibid,, huumia kidogo tu' Literary meaning that a snail's pace mover if worse comes he falls, cannot be severely hurt. By operation of GN 242/08 an application for a building permit should be accompanied by the documents specified there under. Among other important documents are, for the purposes town and City plans, a R/occupancy granted in line with the requirements of section 29 of the Land Act Cap 113 Revised Edition 2002. The suitland and structure is undoubtedly located within the City. The appellant is/was aware of that which is why he applied for a building permit. Understandably, R/occupancies are defined under section 19 (1) (a) and (b) of Cap 113 (sup ra). The trial court revamped on the suitland ownership. I desire to recap on it briefly by adding more flesh. In that connection, it is pertinent to examine the papers relied on vis a vis the legal requirements. Upon examination of the papers the issue to address now is whether the papers relied by the appellant and attached to the application were sufficient authority to substantiate ownership of the land. For the proper town and City planning, the required R/Occupancy must conform or be issued in line with the provisions of section 29 of Act 113 (supra). Not every Tanzanian is a Town or City dweller. A massive population reside in villages. They are as well recognized and the law vide s.25 (1) and (2) of the village Land Act Cap 114 RE 2002 provides for certification of certificate of customary Right of Occupancy held under customary law, by the village authorities. Itezi is a surbub in the city. Its leadership lack powers to authorize any paper worth the name 8 ) R/Occupancy for the land obtaining in the city, within the context of the Land Act. The papers attached with the application were not the R/Occupancies. If the appellant desired to rely on them to justify his possession of the suitland he was supposed to register the same for him to acquire proper title. Now the investigation carried out by the Land Officers escalated the problem. Two things became apparent. One, that the suitland was surveyed, and two that it was allocated and owned by another person by granted R/occupancy in terms of section 29 of Cap 113 (supra). Being a surveyed land, it would be occupied only under a granted Right of Occupancy, not otherwise. That said, I associate myself with the trial tribunal's finding that unlike the respondent, the appellant did not establish ownership of the suitland in terms of law. The appellant opines that upon DW1's admission that the respondent was wrong to demolish the suit structure with the application in place, that constituted good basis to award the claim. I am again associating with the District Land and Housing Tribunal's stance. Its finding cannot be faulted. Much as the Respondent may have been too quick to demolish the structure, but there is ample evidence that the appellant had not been condemned unheard. The contents of EXHIBIT Dl & 3 suggest that he was invited by the Respondent to a meeting for purposes specified in the documents. Even without an invitation, evidence reveals that things were not very smooth at the construction cite. There were conspicuous indicators of a tag of war between the parties, early enough. It was a risk undertaking for the appellant to continue with further investment without clearance assurance. Unfortunately, both resorted and embraced the tag of war methodology. The appellant had told the trial tribunal that he had settled the ownership dispute with one Sanga. The copy of the Right of Occupancy tendered by the respondent does not contain Sanga's names. That again would require more time to investigate what happened exactly. In view of the contents of the certificate of Occupancy issued to Elvis Luta Kamara on the 1 st June 2010 and subsequent transfer to Khebhandza Company, that same land could not be sold by Joyce Jombe and Josephat Ndolela Msonga on the 8th November 2013 and 6 th December 2013 respectively without causing calamity. In any case, the Respondent having so discovered, would not issue any authority to the appellant either for ownership or to carry out any unexhausted improvements. DW1's admission therefore, mistakenly or calculated, did not convert the wrong into the right, for, two wrongs do not make a right. To that end, I find that the appellant is to blame for his incooperation. He was unnecessarily tooquick to ignore the respondent's ongoing investigation upon application. This appeal cannot break through. It is dismissed with costs. N.P.Z. Chocha Judge 12/08/2016 10 )' Date: 12.08.2016 Coram: N.P.Z. Chocha, 3. Appellant: Present. For Appellant: Absent, on safari for TLS Summit Respondent: Francis Mhagama (L/O) R/A: Mwandambo. 1/Ass: Anna. Court: Judgment delivered. Order: Right of Appeal Explained. N. Poca Judge 12/08/2016 11