Mwalimu Omari and another v. Omari A. Bilali 1990 TLR 9 (HC) (deemed Right of Occupancy)

MWALIMU OMARI AND ANOTHER. v OMARI A. BILALI 1990 TLR 9 (HC)

Court  High Court of Tanzania - Dar Es Salaam

Masanche J

15 April, 1990  D 

Flynote

Land Law - Land held under deemed Right of Occupancy - Later Right of Occupancy granted to another person - Whether the two rights can co-exist - Whether the granted right extinguishes the deemed right.  E 

Land Law - Compensation -Improvements on land made while matters are sub-judice in court - Whether compensation payable.

Headnote

The two appellants Mwalimu Omari and Ahmed Banguo were sued in the Resident Magistrates Court by the  F  respondent Omari A. Bilali. The subject matter of the suit was a plot No. 60 block "E" situated at Magomeni. Brief facts are that at Magomeni there was an area which at first had not been surveyed. Mwalimu Omari occupied this area whose size the record does not show. Somehow it was decided by some official to survey the area The area  G  was surveyed and two plots came out of it; plot No. 60 and plot No. 61. Plot No. 61 was given to Mwalimu Omari. It appears that before the plot was surveyed, Mwalimu Omari had given part of the area (now plot 60) to his in-law. This person in turn sold it to the suit defendant Ahmed Banguo. Banguo occupied this unsurveyed land which had nothing but a toilet and some cassava. When the area was demarcated into plots No. 60 and plot No.  H  61 Mwalimu Omari got plot No. 61 and the plaintiff was offered plot No. 60. Mwalimu Omari it appears had wished the plot to have been given to Banguo. In the Resident Magistrates Court two issues were framed. (1) who was the lawful holder of plot No.60 Block E Magomeni Dar es Salaam and (2) what relief were the parties entitled  I  to. After both sides had given

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  A  evidence, the Resident magistrate held that plot no.60 belonged to the plaintiff and there was no compensation for the house built while the case was sub judice, hence this appeal.

  B  Held: (i) Title under customary law and a granted right of occupancy in an area declared township or minor settlement cannot co-exist. Title to urban land depends on grant;

            (ii) squatters in the eyes of the law cannot equate themselves to any person holding a title under right of occupancy even where the squatter occupies land under customary law,

  C       (iii) once an area is declared an urban planning area and land surveyed and plot demarcated whoever occupies land under customary law has to be quick to apply for right of occupancy. If such person sleeps on such right and the plot is given to another, he becomes a squatter in law and would have to move away; he strictly would not be  D  entitled to anything;

            (iv) the appellants erected the building knowing fully well that the matter was still sub judice and that the respondent had a valid letter of offer from the Ministry of Lands. Since they did so at their own peril no compensation can legally be given to them except for the few cassavas and toilet which existed at the start of the  E  suit.

Case Information

Appeal dismissed.

Cases referred to:

  F        1.         Mtoro bin Mwamba v A.G (1953) TLR (R)327

            2.         Metusela Nyangaswa v Christopher Nyirabu (1985) CA. 14.

Judgment

Masanche, J.: The two appellants Mwalimu Omari and Ahmed Banguo were sued in the Resident Magistrates  G  Court of Kisutu here in Dar es Salaam by the respondent Omary A. Balali. The subject matter of the suit was a Plot Number 60 Block "E" situated at Magomeni.

Just for purposes of interest a lot of advocates have handled this case. It started with Mr. Ismaili, learned advocate drafting the plaint for the plaintiff, Omari A. Bilali. The defendant engaged Mr. Rahim, learned advocate. The case  H  got started on 8/9/82 before Mrs. Kimaro RM (as she then was). The case then got adjourned. The whole of 1983 passed; then 1984,1985,1986 and finally on 3/7/87, the case came for continuation of hearing. This time Mr. Mwajasho had taken over from Mr. Rahim. Then on 31/7/87 the case got finalised. Judgment was entered for the  I  plaintiff with costs. The defendants got aggrieved and appealed to the High Court through Mr. Rahim. But then when the 1990 TLR p11

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case came up for hearing it is Dr. Lamwai, learned advocate who argued the appeal. There were five grounds of  A  appeal that had been preferred by Mr. Rahim. Mr. Lamwai decided to adopt the whole memorandum of appeal, but when it came to arguing the actual appeal, Dr. Lamwai, quite rightly to my mind, abandoned ground No.l saying that the record does not support it. He then proceeded to argue grounds No.2,3 and 4 together. Grounds No.5  B  and 6 were argued separately.

Briefly the facts of the case were these, at least from the record.

At Magomeni there was an area which, at first, had not been surveyed. Mwalimu Omari occupied this area. The record does not tell us the size of the plot. But, for sure it was not surveyed. So Mwalimu Omari occupied the  C  whole of it.

Then, somehow it was decided by whatever official it was to survey this area. So the area got surveyed and two plots came out of it; Plot No. 60 and Plot No. 61. Plot No. 61 was given to Mwalimu Omari. Naturally Mwalimu Omari, had wished to be given the other Plot as well - Plot No. 60.  D 

If one reads the record well it appears that before the plot got surveyed this Mwalimu Omari gave the area (now Plot 60) to his in-law (name not given in the record). This person in turn sold it to the first defendant Ahmed Banguo. It is not correct therefore, to say that the first defendant Ahmed Banguo was given the piece of land gratis  E  by the second defendant. Mwalimu Omari himself says this, in his evidence in chief in the Resident Magistrates Court:

Banguo bought the house from one person who is my in-law and now deceased. Plot No. 60 was my plot. I had given  F  the plot to my in-law. My in-law died and the parents of my in-law sold the plot to the 1st defendant.

Banguo, however occupied this unsurveyed land which had nothing except for a toilet and some little cassava. So,  G  when the area got,  demarcated into two plots, Plot No. 60 and Plot No. 61, Mwalimu got Plot 61 and the plaintiff was offered Plot No. 60. Mwalimu Omari, it appears had wished the plot to have been given to Banguo.

In the Resident Magistrates Court two issues were framed:  H 

They were:

            1.         Who is the lawful holder of Plot No. 60 Block E Magomeni Dar es Salaam.  I 

            2.         To what relief are to parties entitled to.

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  A  After both sides had given evidence (no witnesses were called) the learned resident magistrate held that Plot no. 60 belonged to the plaintiff. She said:

In this case, the plaintiff has proved his ownership over the plot by documentary title, a letter of offer of Right of   B Occupancy of the plot. He has also furnished the Court with receipts which confirm(s) that he has paid all necessary charges. The letter of offer clearly shows that the Plaintiff was granted Right of Occupancy from 1/7/78 for 33 years. On  C  the other hand the defendants have proved unsufrucuary proof of user through the claim that they were given a letter of offer or Right of Occupancy effective from 24/1/80 but they didn't furnish the court with any document to confirm the same.

  D  Counsel Dr. Lamwai and Mr. Mwajasho made very interesting arguments before me. Dr. Lamwai, for the appellants, for example told this court that DWI, Ahmed Banguo had occupied the area (Plot 60) since 1962, at a time when it was not surveyed. It therefore implies that the said Banguo was a holder on customary law. The  E  respondent Omari A Bilali came later, in 1978. Even if, right now, this Omari A. Bilali, has been granted offer of right occupancy or even if he had the complete real right of occupancy his title would be inferior to that one of Banguo. Dr. Lamwai then criticised the learned magistrate for relying on the case of Mtoro bin Mwamba v A. G.  F  (1953) T.L.R. (R) page 327. The learned Magistrate had, relying on that case, held that:

The owner of land in customary land tenure does not have a title on the land. He has only the right to use or in other  G  words he has unsufrucuary right over the land.

Dr. Lamwai criticised the magistrate for having sought assistance from Mtoro's case. He argued that Mtoro's case is no longer law as that case has been over-ruled by the case of Metusela Nyangaswa v Christopher Nyirabu   H  (Court of Appeal Civil appeal No. 14 of 1985) in which Mustafa J.A. held (according to Dr. Lamwai) that the right of a holder of right of occupancy by native law and custom is not extinguished and the person does not become a squatter upon the area becoming a planning area Dr. Lamwai went on to argue that since the Land Ordinance   I  recognises both tenures, there is a possibility of both tenures in a planning area co-existing.

1990 TLR p13

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Mr. Mwajasho, for the respondent submitted at some length. He supported the learned magistrate in holding that  A  the appellants were squatters on Plot No. 61 and that, therefore, had no title at all. And, even assuming that they had a title under customary law, that title was inferior to the one the respondents had. Mr. Mwajasho commended the learned magistrate for seeking guidance from the old case of Mtoro Bin Mwamba (Supra) which according to  B  him was the law. He also submitted that in fact the case of Nyangaswa v Nyirabu quoted by Dr. Lamwai, does not over-rule Mtoro's case.

What Mustafa J.A. said in Nyangaswa's case is that after an area is declared Urban planning area, a squatter or a person holding title under customary law continues to enjoy some rights, e.g. compensation but this was not  C  superior to that of a holder of right of occupancy. Squatters have a right of facing authorities for fast registration if they comply with set down rules. If they do not do so and someone is granted the plot, they can only be compensated for unexhausted improvement, so Mr. Mwajasho argues.  D 

I have considered the submissions from both counsel quite seriously. I am afraid, the law is as Mr. Mwajasho, learned Counsel for the respondent says. The interpretation of Nyangaswa's case by Mr. Mwajasho is correct. In that case as I read it, Mustafa J.A. and Omar J.A. who signed the majority judgment, Makame J.A. dissenting  E  seem to have said that a person holding title under native law and custom but in an area which had been surveyed would have an inferior title to the plot in case another person is granted the same under Land Ordinance. It seems the court there agreed with the interpretation of the law by the learned advocate of the respondent Nyangaswa Mr.  F  Mkatte. The Court there said:

Mr. Mkatte who appeared for the respondent would seem to contend that the trial Judge did not hold that the right of a holder of a right of occupancy by virtue of native law and custom is extinguished solely because an area has been  G  declared a planning area. He however seemed to state that a right of occupancy granted in terms of section 6 of the Land Ordinance Cap. 113 confers a superior and overriding title.  H 

Mustafa J.A. then went on to state:

At any rate I am not prepared, on the rather inconclusive and tenuous arguments advanced in this appeal, to hold that the right of a holder of a right of occupancy by virtue of native law and   I

1990 TLR p14

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  A  custom is extinguished and he thereby becomes a "squatter" on an area being declared a planning area.

I understand that passage to mean; which appears to be the most sensible interpretation as Mr. Mwajasho says,  B  that a squatter, in an area declared a planning area would not be thrown out mercilessly. He would be entitled to something, say, some compensation but that does not mean that the two can co-exist. This view, I would venture to say, finds support in a passage by two learned authors R.W. James and G.M. Fimbo in their treatise Customary   C Land Law of Tanzania: A source book, at page 592, where they say this; about squatters:

It is normal for the Government to compensate squatters on town land, when any occupied portion is required. The legal necessity to pay compensation is uncertain, it is arguable that persons occupying town land without any grant are using  D  such land under customary law, for a right of occupancy "is defined as" a title to the use and occupation of land and includes the title of a native or of a native community lawfully using or occupying land in accordance with native law and  E  custom (section 2 of Cap 113).

So squatters, in the eyes of the law, I repeat, cannot equate themselves to any person holding a title under right of occupancy even where that squatter is there under customary law. Once an area is declared an urban planning area,  F  and land is surveyed and given plots, whoever occupied the land even under customary law would normally be informed to be quick in applying for rights of occupancy. If such person sleeps on such a right and the plot is given to another, the squatter, in law, would have to move away and in law, strictly would not be entitled to anything.  G  However, as the learned authors R.W. James and G.M. Fimbo say, governments have always compensated such going away squatters for their unexhausted improvements. And I agree with these learned authors when they say that these compensations are made (at least after 1967), probably, with in mind the sentiments of Mwalimu   H Nyerere in his book Uhuru na Umoja at page 53 - 54 where he says:

Land is a free gift from God to all His living things to be used now and in the future. When I use my energy and talent to  I  clear a piece of ground for my use it is clear that I am trying to transform this basic gift from God so that it can satisfy a human need.... By 1990 TLR p15

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clearing that ground I have actually added to its value and have enabled it to be used to satisfy a human need. Whoever  A  takes then this piece of ground must pay me for adding value to it through clearing it by my own labour (Mso quoted in Customary Land Law of Tanzania A source book R.W. James and G.M. Fimbo at page 598).  B 

It is true as Mr. Mwajasho says that the squatters whenever they  apply for rights of occupancy over a plot they have an adverse possession and are normally given priority. The two appellants did not do so for plot No. 61. Mwalimu Omari was fast on acquiring title for plot No. 60. Ahmed could have done the same for plot No. 61.  C  Because he did not do anything, the respondent got an offer first, in 1978. "If Ahmed Bangu got another offer after 1978, on the same Plot (Plot 61) that offer was superfluous".

Here, again, perhaps a passage from Customary Law of Tanzania by the same authors Mr. James and G.M. Fimbo  D  would have the matter of allocation home.

The authors say, at page 83:

The nature of grant (allocation or allotment) is a common source of litigation in areas where there is land shortage. In  E  the face of conflicting allegations of allotment and allocation the courts are guided by a number of rules: it is a question of the intention of the land allocating authority; evidence that the grantee was forbidden from fencing the land or planting  F  permanent trees on the land is an indication that absolute interest was not intended to pass "The courts have on many occasions held that the planting of permanent trees and the act of fencing land, is, customary jurisprudence, acts tantamount to ownership and are inconsistent with rights less than ownership (Jeremiah s/o Antony v Ramadhani Saidi  G  (1963) L.C.C.A., 63/1962; Mariam bint Chaurembo v Hamisi Waziri (1946) Application to the Governor No. 140, No. 24/1946).

The learned authors go on to say:  H 

The best evidence of the nature of a grant is of course direct evidence, i.e.; the evidence of the authority responsible for granting the land, or the witnesses thereto. If the grantor is dead, or not available, any document executed when the grant  I  was made is of 1990 TLR p16

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  A  vital importance. Such evidence is also invaluable when two persons claim to have been allotted the same piece of land.

After Mr. Mwajasho submitted in reply to the submission of Dr. Lamwai, Dr. Lamwai, also submitted. He has  B  complained that at least the learned magistrate should have compensated the appellant if she held that the plot belonged to the respondent. But then I see that the learned magistrate gave reasons, sound to my mind, why she was not ordering for compensation for the house. She said:

  C  On the question of building which the defendants erected on the plot, I hold that as the defendants did erect the building with a clear view that the matter was still sub judice in court and that plaintiff had a valid letter of offer from the  D  Ministry of Lands since 1978, they did so at their own peril. No compensation can legally be given to the defendant....

Of course the defendants could only be compensated for the cassava and the toilet.

  E  Lastly, there was a reference both in the judgment of the lower court and by Counsel, of Government Circular No. 4 of 1953. That circular would have no direct bearing to the facts of this case. That circular was passed in 1953 to give elaborate procedure of compensation on people in areas other than urban areas. The had been declared township, or municipalities or ninon settlements.

  F  It also emphasized the preposition that an African who held land under customary law, even if he had no documentary title would be recognised to have had a title. But this did not apply to Urban areas. Title to urban land depends on a grant. So, to answer Dr. Lamwai's question of whether the two titles, title under customary law, and  G  the rights of occupancy under the land law would co-exist side by side, the answer is that in an area declared to be township or minor settlement, the two cannot co-exist. As I said, title to urban land depends on a grant.

  H  This appeal is dismissed in is entirety. Costs to follow events.

Appeal dismissed.