JELA KALINGA v OMARI KARUMWANA 1991 TLR 67 (CA)

 

JELA KALINGA v OMARI KARUMWANA 1991 TLR 67 (CA)

Court Court of Appeal of Tanzania - Mbeya

Judge Ramadhani JJA and Mnzavas JJA and Mapigano Ag JA

9 May, 1991 D

Flynote

Tort - Trepass to land - Plot in dispute issued to neither party - Whether in the

circumstances trespass can be committed.

Tort - Trespass to land - Plot in dispute issued to neither party - One party in

unlawful possession of the plot- Whether E unlawful possessor may maintain an

action in trespass.

Tort - Trespass to land - Defences.

-Headnote

A person who was not allocated a plot of land sued a person who encroached upon it

in trespass. The person F who sued entered into possession unlawfully. The person

who was sued believed that the plot was his so after demolishing the structure put up

by the other party he proceeded to erect a cottage thereon. The Court considered

whether trespass could be committed in the circumstances and if so whether there

were any defences open to the tortfeasor. G

Held: (i) Although in law neither of the two parties had a better title than the other,

the foundation of an action for trespass to land is possession, and it is not necessary

that the plaintiffs possession should be lawful; H

(ii) since Omari had actual possession before the demolition and the

subsequent construction by Jela, Omari's action was proper.

(iii)one of the defences against an action for trespass is a claim by the

defendant that he had a right to the possession of the land at the time of the alleged

trespass or that he acted under the authority of some person having I such a right.

1991 TLR p68

RAMADHANI AND MNZAVAS JJA AND MAPIGANO AG JA

Case Information

A Appeal dismissed.

Bateyunga, for appellant.

Mwangole, for the respondent.

[zJDz]Judgment

B Ramadhani and Mnzavas, JJ.A. and Mapigano, Ag. J.A.: This is the third appeal

between the parties, the matter having started in Vwawa Urban Primary Court in

Mbozi District. So for the sake of clarity and simplicity we shall refer to the parties by

their first names rather than by appropriate legal labels.

C Omari Kalumwana unsuccessfully sued Jela Kalinga at the Primary Court for the

repossession of a certain plot. Needless to say he was aggrieved and so appealed to the

District Court of Mbozi where he succeeded. It was then the turn of Jela to go to the

High Court at Mbeya to challenge that decision. However, he failed to persuade D

Mtenga, J. and he thus lost again. But as his morale is high, Jela has finally come to

us after obtaining a certificate from Mwaikasu, J. that there is a point of law at stake.

Thus Omari was the original plaintiff while Jela was the original defendant. Now

before us Omari is the respondent and Jela is the appellant.

E The facts of the matter are as simple as their issues are intertwined. The Regional

CCM clecrations of the 5th February, 1985 were held in Mbozi District. The District

Celebrations Committee identified the site on which to hold the festivities and

decided that it should be fenced by building cottages all around to turn it into a

stadium, so F to speak. The District Celebrations Committee, as would be expected,

was under the chairmanship of the District Commissioner while the District Cultural

Officer, one Nicodemus Mwankemwa (PW. 2), was its Secretary. A building Sub-

Committee (hereinafter referred to as the sub-committee), whose composition was

not G spelled out in evidence, was established and charged with the task of issuing

out plots to interested persons for building cottages. Both Omari and Jela were

allocated plots which were separated by an interspace. A public latrine was built on

the interspace leaving passages on either side of the latrine. After the celebration

were over it H was decided to block-up the passages. Omari was permitted by PW.2

to build a wall to connect his cottage to the side of the public latrine adjacent to him.

When he was about to put up a roof he left for Dar es Salaam and, on his return,

Omari found both the wall he had constructed and the public latrine demolished and

Jela was in the I process of creating a new cottage thereon having being permitted to

do so by both the district Land

1991 TLR p69

RAMADHANI AND MNZAVAS JJA AND MAPIGANO AG JA

Officer, one Paul Nyalusi (DW.2), and the District Medical Officer called Senga Senga

(DW.3). it was the same A DW.3 who had earlier on given a written authority to

one Sadoki to demolish the public latrine and the wall of Omari. Naturally, Omari

confronted Jela who ignored his protests and proceeded with his construction work.

That sent Omari to the Primary court, as said earlier, suing Jela for trespass. B

The point of law that was certified to us briefly was this:

Since the sub-committee was the one with the authority to allocate plots at the

stadium and as neither Omari nor Jela C obtained possession of the plot in dispute

from the sub-committee, could either one of them be said to have acquired a good

title?

Mr. Batenyunga, learned Counsel for Jela, the appellant, presented a memorandum of

appeal containing four D grounds of appeal The first ground was that the learned

Judge erred to find Jela to be a trespasser as that issue could not arise in the

circumstances of this case. The second ground was that the judge erred to declare

Omari to have had a better title while there was a finding of a double allocation. The

third ground was that the Judge erred E to have denied compensation to Jela on the

ground that he was a trespasser. Lastly, that the Judge erred to have granted the plot

to Omari while none of them had a better title because of the double allocation.

Mr. Bateyunga before us submitted that since the sub-committee did not allocate the

plot to either Omari or Jela F then none of had good title. Therefore, the counsel

argued, Omari had no right to sue Jela who could never be a trespasser. Mr.

Bateyunga prayed that the decision of the Primary Court be restored.

On the other hand, Mr Mwangole, learned Counsel for Omari, the respondent, argued

that there was no double G allocation as Omari was given the plot by PW. 2 on

behalf of the sub-committee. On the contrary, the counsel submitted, Jela had no

good title as both Dws. 2 and 3 no authority to issue plots. However, Mr Mwangole

could not refer us to nay evidence to support his contention that PW. 2 issued the

plot in dispute to Omari on behalf of H the sub-committee.

It was the finding of the lower Courts that the sub-committee was the proper

authority to allocate plots at the stadium. It was equally settled that the said subcommittee

did not issue the plot in dispute to any of the parties. I So we are of the

same opinion that in

1991 TLR p70

RAMADHANI AND MNZAVAS JJA AND MAPIGANO AG JA

A law neither of the two had a better title than the other. But in such a situation

can there not be trespass?

The foundation of an action for trespass to land is possession. It was decided in

Delaney v T. P. Smith Ltd. B [1946] 2 All E.R 23 that to maintain trespass against a

wrongdoer it is not necessary that the plaintiff's possession should be lawful. But that

is not the case if the action is against the lawful owner. As there was no lawful owner

in this case the question than is which of the two had possession, albeit unlawful, at

the time of the dispute.

It has never been disputed at any stage that Omari had actual possession before the

demolition and the subsequent C construction by Jela. The case of Thompson v

Ward [1953] 1 All E.R 1169 supports the proposition that any one who was in

possession or who is deemed to have been in possession at the time of the trespass

could bring an action for trespass. so Omari's action was proper.

D However, one of the defences against an action for trespass is a claim by the

defendant that he had a right to the possession of the land at the time of the alleged

trespass or that he acted under the authority of some person having such a right

(Halsbury's Law England 3rd. Ed. Vol. 38 at page 749 paragraph 1226). That has been

the E defence of Jela. But as already shown he could not have such a right as DW.2

and DW.3 had no authority to giveit to him.

For the sake of completeness we may observe that it could have been argued, though

it was not on behalf of Jela that he did not know that he was committing trespass or

that he was misled by DW.2 and DW.3 into occupation. F That is very true.

However, a person is liable for trespass if he acts voluntarily knowing the nature and

the quality of his act even though he does not know the act to be wrongful (See

Moriss v Marsden and Another [1952] 1 All E.R. 925).

G Thus we find that Omari had possession of the plot in dispute and that Jela

committed trespass. So possession should be restored back to Omari as was the

finding of both the District Court and the High Court.

H Mr. Bateyunga had prayed that in the event we came to the conclusion which we

have arrived at, we then should consider awarding compensation to Jela. Mr

Mwangole was bitterly opposed to that prayer but eventually he conceded. As there

was no evidence as to how much money Jela had expanded on the structure we direct

the I District Magistrate to take evidence from the parties and experts like the

Government valuers to assess the cost of erecting the building in 1986. Interest on the

amout from the date of judgment

1991 TLR p71

by the District Court, that is the time when Jela was deposed, to the time of payment

of the compensation should A be granted as well.

The appeal is dismissed except for compensation.

As the parties were not at fault but were misled into this litigation by other who then

became on-lookers we order each party to bear his own costs. B

Before we finish, we may as well comment that Omari suffered some loss when the

wall he had built was demolished. But that is a claim which could be brought against

DW.3 who ordered the demolition and not Jela. C

Appeal dismissed.

1991 TLR p72

D