Suzana Kakubukubu & Two others v. Walwa Joseph Kasubi and the Municipal Director of Mwanza 1988 TLR 119

SUZANA KAKUBUKUBU AND TWO OTHERS v WALWA JOSEPH KASUBI AND THE MUNICIPAL DIRECTOR OF MWANZA 1988 TLR 119 (HC)

Court   High Court of Tanzania - Mwanza

  Moshi J

19 July, 1988   B

Flynote

Land law - Ownership of land in a planning area - Whether a deemed right of occupancy is extinguished upon payment of compensation.   C

Headnote

The plaintiff held about 5 acres of land under the deemed right of occupancy. Due to poor health she invited relatives to live on it while she was staying in Dar es Salaam . In 1984, a survey was done on the piece of land resulting in two farms - Farm 2 and Farm 3. While Farm 2 was allocated to the plaintiff, Farm 3 was allocated to the first  D  defendant. Compensation in respect of Farm 3 was worked out and paid to those who were occupying it. Later the plaintiff came to know about the survey and allocation of Farm 3 to the first defendant. She, joining her children, sued the first defendant and the Municipal Director of Mwanza arguing that they were the lawful owners of Farm 3  E  notwithstanding the compensation paid to third parties for the unexhausted improvements. One of the issues argued in court was whether or not payment of compensation for unexhausted improvements to the holder of a deemed right of occupancy or his agent or representative extinguishes that right.   F

Held: (i) Payment of compensation to a holder of a deemed right of occupancy or to his agent or to his representatives extinguishes that right.

Case referred to.

            1. Mathuselah Paul Nyangwaswa v Christopher Mbote Nyirabu.  Civil Case No. 4 of 1985, Dar es Salaam, (C.A.) (unreported)   H 

Maira, for plaintiffs

Kahangwa, for first defendant

Matata, for second defendant  I

1988 TLR p120

MOSHI J

Judgment

Moshi, J.:  The dispute between the parties involves the ownership of a parcel of land  A  measuring about 5 acres, presently know as Farms 2 and 3, measuring 2.17 and 2.8 acres respectively, in Bwiru area, which is a planning area, within the jurisdiction of Mwanza Municipal Council.

Mr. Maira, learned advocate, and Mr. Kahangwa, learned advocate, appeared for the  B  plaintiff and the first defendant respectively, whereas the Mwanza Municipal Council lawyer, Mr. Matata, represented the second defendant.

The case for the plaintiffs is that they are a family group-mother (PW1), elder son  C  (PW2) and younger son (PW3) respectively. The first plaintiff (PW1), who is now an old and blind woman, resides in Dar es Salaam with the second plaintiff (PW2), whereas the third defendant (PW3) is the Tabora T.T.C. Branch Manager. At an unknown time  D  in the distant past PW1 and her sister Sofia inherited the land in dispute from their father Ngunga. Sofia died, and PW1 stayed on the land with Sofia's sister Emersiana. About 13 years ago PW1 fell sick and went to Dar es Salaam, where she has resided todate, leaving the shamba under the care and management of Emersiana. She had two  E  houses on the land-one with a thatched roof and another with corrugated iron sheets roofing -and  some crops - permanent and annual. The houses were on the part of the land which later became Farm 2, and site rate and service charge was being paid in connection therewith. Emersiana invited their relative, Ndege Masandika, to stay with  F  her on the land, and upon the death of Emersiana in 1983, Ndege took over the care and management of the land with leave of PW1. Ndege was living on the proceeds of the land, and he was living in one of the two houses. He was cultivating a variety of crops on the portion of the land which later became Farm 3, together with four persons,  G  Mdongo (PW7), Mtoka (PW8), Machai (PW9) and Kilangi (PW10), who had been invited to the farm by Emersiana and PW1. By 1985 when the land in dispute was surveyed, these persons had stayed on, and cultivated, the land for over ten years.

In 1980 the third plaintiff (PW3) applied (Ext. P3) to the Mwanza Municipal Planner  H  (DW2) for the survey of their land in Bwiru. They wanted to build permanent houses and modernise their farming. A reply in 1983 (Ext. P4) was to the effect that the application would be attended to soon. In 1985 the plaintiffs then learned that the land had been surveyed giving rise to two Farm - farms 2 and 3. Farm 3 was offered to the first  I  defendant, and the five persons, including Ndege, were paid a compensation totalling

1988 TLR p121

MOSHI J

shs. 87,940/= for their crops and other unexhausted improvements. Farm 2 was  A  reserved for first plaintiff, and Ndege remained on Farm 2 taking care of the houses and the crops, on behalf of the first plaintiff, until his death in 1987. He was succeeded by one Maarifa Kinyozi (PW11) who is presently occupying that farm on behalf, and with the consent, of the first plaintiff. The plaintiffs were aggrieved, and felt that they were  B  robbed of their land - Farm 3 - and their letters of protest (Exts P1, P2, P6, P7 and P8) proved futile. They then filed the suit challenging the offer of Farm 3 to the first defendant, claiming that it was unlawful.  C

The case for the defendants, on the other hand, was that in 1979 the first defendant (DW1), who is currently the Tabora Regional Commissioner, applied (Ext. D1) for a plot in any part of Bwiru area. He was then the Bariadi District Commissioner. In 1980 the third plaintiff lodged his application. The two applications were found and processed  D  by the Acting Municipal Planner (DW2) when he reported at Mwanza in 1982. He accompanied PW3 to the site, and PW3 showed him the area around the two houses - farm 2. He prepared a town planning drawing (Ext D6) for Bwiru area showing Farms 2 and 3 as Mwanza does not have a master plan. He made a survey request to the Acting Regional Land surveyor (DW3), and the survey was undertaken in 1984 giving rise to  E  Farm 2 and 3. The two applicants - the first plantiff and the first defendant, were allocated the farms - Farm 2 and Farm 3 - respectively. The use of the land was agricultural only, and according to the planning standards of that area, individual plots  F  were not to exceed 3 acres in size. The first defendant's offer was dated 28.11.85, and he followed up the offer and was duly issued with a certificate of occupancy No. 2155 (Ext D5) over Farm 3, Bwiru area, for a term of 99 years commencing from 1.10.1985. This was duly registered on 9th November, 1985, under number 20939. The certificate  G  of Title contains in its schedule a registered survey plan (Ext. D7) showing the boundaries of Farms 2 and 3. Compensation to the occupants of Farm 3 was processed by the Acting Municipal land officer (DW4) who was the Senior Assistant Valuer. He was introduced to the five persons by the secretary to the cell leader (PW6) in the  H  presence of their CCM branch secretary and other villagers. They showed the demarcations of the farm and pointed out their crops and other unexhausted improvements. Their cell leader, Kafula, confirmed in writing (Ext D8) that Farm 3 belonged to Ndege. DW4 prepared a schedule of compensation (Ext D4) which  I  contained the names of the compensatees, a description of what they were being 1988 TLR p122 MOSHI J

compensated for, and the amounts due to them. They were paid and, without raising any  A  objections or complaints, duly signed the compensation schedule, as did DW4, the Regional Land Development Officer (DW5), the District Commissioner and the Regional Commissioner.

The first defendant is presently developing the land. It is the defendant's contention that  B  the first defendant is the legal owner of Farm 3, and that the right of occupancy issued to him was processed, and obtained, legally. The following issues, which I have taken liberty to restructure, were agreed upon:  C

         1.Whether the plaintiffs had a deemed right of occupancy before the relevant land was surveyed. If so ..

               2. Whether the deemed right of occupancy was surrendered upon payment of compensation.

             3. Whether the offer of the land to the first defendant by the second defendant was lawful.   D 

               4. Whether a deemed rights of occupancy is applicable in an urban planning area.

               5. Reliefs.   E 

But, in the course of the trial, it transpired that the first and fourth issues were not in dispute. It was conceded that the first plaintiff had a deemed right of occupancy over the  F  land in dispute in terms of section 2 of the Land Ordinance, Cap. 113, before the survey, as she had inherited it from her father. I say the first plaintiff, and not all the plaintiffs, for it was the first plaintiff who had inherited the land, and there was no evidence that she had bequeathed it, or any part thereof, to any of her sons - the second  G  and third plaintiffs. It was equally conceded that Bwiru area, where the land in dispute is situate, is a planning area within the Municipality of Mwanza. In addition to these matters not being in dispute, there was evidence from both sides which established issues 1 and 4 in the affirmative. I therefore, hereby hold, in connection with issues 1 and 4,  H  that before the survey the first plaintiff had a deemed right of occupancy, over the land in dispute, which is in the planning area of Bwiru, within the Municipality of Mwanza.

Issue number 2 attracted a heated argument from both sides. Mr. Maira submitted that there was no evidence that the President had either acquired or revoked the deemed  I  right of occupancy under either section 10 of Cap. 113 or section 45 of Cap. 378 respectively.

1988 TLR p123

MOSHI J

That may as well have been the case but, with respect, it appears to me to be out of  A  context, for the question before the court is whether the payment of compensation extinguished the deemed right of occupancy. The court was referred to a number of decided cases, the majority of which, after having had sight of them, appear to me to be, again with even greater respect to Mr. Maira, out of touch with the point in issue, and  B  others, distinguishable from the present case. The nearest authority to the point cited was the Court of Appeal judgment in Methuselah Paul Nyangwaswa v Christopher Mbote Nyirabu - Civil No. 14 of 1985, Dar es Salaam (unreported) in which, according to Mr. Maira, it was held that a deemed right of occupancy, held by virtue of  C  native law and custom, is not extinguished upon an area being declared to be a planning area. Having had an opportunity to read the Court of Appeal judgment in Methuselah's case, I find myself unable to agree with Mr. Maira. That was not the ratio decidendi of the case. The decision of the Court of Appeal was different. The facts of  D  that case and the points for decision were different. What transpired, for our purposes, was simply that the Court of Appeal felt unprepared to positively hold that a deemed right of occupancy extinguishes upon an area being declared a planning area on the rather inconclusive and tenuous arguments advanced before it, and in view of the still  E  developing Tanzania law on Land and Land Tenure whose certain areas are unclear and would have to await the necessary legislation. Let me, for purposes of clarity, reproduce hereunder what Mustafa, J.A. said at page 5 of the judgment which formed the basis for Mr. Maira's argument:  F

            In my view the law in Tanzania on Land and Land Tenure is still developing and certain areas are unclear and would have to await the necessary legislation. At any rate, I am not prepared,   G  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 custom is extinguished and he thereby becomes a "squatter" on an area being declared a planning area. (Emphasis mine).   H 

I would agree with Mr. Kahangwa, and hold that, Methuselah's case is not a positive authority for or against a legal proposition that a deemed right of occupancy, either extinguishes or does not extinguish, upon an area being declared a planning area. However, the events in this case did not end with the land being declared a planning  I  area. Compensation for unexhausted improvements was

1988 TLR p124

MOSHI J

paid in connection with Farm 3 and, for my part, I would not hesitate to hold that  A  payment of compensation to a holder of a deemed right of occupancy, or his agent or his representative, extinguishes that right, for it would mean the surrender of the same. This takes us back to our question - whether the payment of the compensation extinguished  B  the first plaintiff's deemed right of occupancy in connection with Farm 3.

Mr. Maira has submitted that the compensatees were cultivators and/or users of the land with permission and were compensated only for their own unexhausted improvements.  C  He further argued that they had no right in the land which they could have surrendered since the interest in the land was with the first plaintiff. With respect, I am not, on the evidence, persuaded by that argument. The compensatees may as well have recognized the first plaintiff as the owner of the land, but it would appear that they kept that  D  knowledge to themselves. A different picture was portrayed to third parties. All the compensatees, except Ndege, physically stayed and lived on Farm 3 where they had houses, families and a variety of crops. They had, with leave and knowledge of the first plaintiff, thus remained in occupation for over ten years. In actual fact, they were the  E  occupiers and developers of that land. It is in evidence that they did not tell DW4, at the time the compensation was assessed, that the land belonged to person or persons other than themselves. They were introduced by the village leaders (PW6) as occupiers of the land, and they then showed the boundaries of their land as well as their property. They  F  held themselves out to the assessors as the owners of the land, and they accepted the compensation without remorse or complaint. An attempt was made by Mr. Maira to challenge the procedure followed in assessing the compensation by claiming that the  G  compensation was effected by force and that the compensatees were not given the right of first option. With respect, I do not agree. It was established in evidence, including that of the compensatees themselves, that such a thing never happened. I am satisfied that the correct procedure was followed in the assessment, and in the effecting, of the compensation. In the circumstances, third parties, in my view, had a right to believe that  H  the compensatees were both the owners of the land and the property thereon. I find substance in the submission by the learned advocates for the defendants that, in the event that the first plaintiff's right of occupancy were not extinguished upon the land being declared a planning area, then it was most certainly extinguished upon payment of the  I  compensation.

1988 TLR p125

MOSHI J

The status of Ndege, in my view, aggravated the matter to the detriment of the plaintiffs.  A  He had been paid compensation, both for his unexhausted improvements and those of the first plaintiff. Mr. Maira argued that he was neither an agent nor a representative of the first plaintiff, whereas both Mr. Kahangwa and Mr. Matata maintained that he was.  B  He had been invited to the land by Emersiana, with leave of the first plaintiff, and took over the care and management of the land from Emersiana, again with leave of the first plaintiff, at the death of Emersiana. An attempt was made to show that there were things which Emersiana could do or was empowered to do, but which Ndege could not do or  C  was not empowered to do. In other words, an attempt was made to show that Emersiana as a representative of the first plaintiff, had more authority and more power of representation than that of Ndege. With genuine respect, I am not persuaded that there was such a distinction, or that such a distinction could be drawn. Evidence established  D  the contrary. Both Emersiana and Ndege were relatives of the plaintiffs. They both stayed in the houses of the first plaintiff on Farm 2. Ndege stepped into the shoes of Emersiana upon her death, and his terms of reference, as those of Emersiana, were allegedly verbal. Unfortunately, both Emersiana and Ndege are dead, and it remains a  E  matter for conjecture as to what their version of the instructions between themselves and the first plaintiff could have been. By opting to stay away from the land for over 12 years, leaving the same under the charge and management of Emersiana and Ndege, the first plaintiff must be taken to have intended that third parties should have taken the two  F  as persons with her express and implied authority to act on her behalf. It was no doubt in acknowledgement of this that the plaintiffs opted not to proceed against Ndege, but to let him continue to stay on the land until his death in 1987. There is evidence from the cell leader (Ext D8), which was introduced at the instance of the plaintiffs' advocate, that  G  Ndege was being regarded at the village as the owner of that part of the land which became Farm 3. This piece of evidence lands substantial support to what the Senior Assistant Valuer (DW4) told the court, that Ndege held himself out as the owner of Farm 3 at the time of the assessment of the compensation. Be that as it may, I do not  H  think, in my considered opinion, that it is now open to the plaintiffs to disown Ndege. I am satisfied that Ndege, as had been Emersiana, was the agent and representative of the plaintiffs, and that he had received the compensation on their behalf. For all the foregoing  I  reasons, I would, therefore, hold issue number 2 in the affirmative, and hereby find

1988 TLR p126

MOSHI J

that the first plaintiff's deemed right of occupancy over Farm 3 was surrendered upon  A  payment of the compensation.

Last in line for consideration is the third issue - whether the offer of Farm 3 to the first defendant was lawful. Mr. Maira's argument on this point was that as the plaintiffs had  B  the land, the second defendant had no land to allocate to the first defendant, and that the allocation was therefore unlawful with no legal force. It seems to me that this argument is now obsolete in view of my finding in issue 2. It is not in dispute that the second defendant is a planning authority. The first defendant had applied for a plot in Bwiru area  C  in the normal and usual manner. The evidence on record speaks for itself. There was no evidence of any fraud. The application was processed by the relevant competent authorities in the normal and usual manner. The compensation was assessed and paid under circumstances which, as already held, did not disclose any fault. I find nothing  D  suggestive of, let alone to establish, that the discretion to allocate the land was improperly exercised. The first plaintiff was not denied a piece of land. She has at her disposal Farm 2 which, in fact, is presently being occupied by a person of her choice (PW11). It is in evidence that according to the planning standards of the area, individual  E  plots were not to exceed three acres. I am satisfied that the first defendant's right of occupancy was issued in proper circumstances, and that it was obtained legally and without fraud. I hold the third issue in the affirmative.

In the final analysis therefore, I am satisfied, upon the foregoing reasons, that the  F  plaintiffs' claim must, on the balance of probabilities, fail. The suit is hereby dismissed with costs.

   G  Appeal dismissed.