THE NATIONAL BANK OF COMMERCE v SULEIMAN NASSOR ALLY 1989 TLR 67 (CA)

 

THE NATIONAL BANK OF COMMERCE v SULEIMAN NASSOR ALLY 1989 TLR 67 (CA)

Court Court of Appeal of Tanzania- Mwanza

Judge Nyalali CJ, Makame JJA and Omar JJA

9 May, 1989

Flynote

Land Law - Acquisition - When completed.

-Headnote

The appellant, the National Bank of Commerce, was allocated a parcel of land owned earlier by one Suleiman Nassor, deceased. The respondent, eldest son of the deceased claimed lawful ownership of the parcel of land and sued the appellant in the Resident Magistrate's Court for trespass.

The appellant was allocated the land after the President, through the Minister for Lands, had given notice, which was published in the Official Gazette, of his intention to acquire this particular piece of land for public purposes.

Both the trial and the first appellate courts were satisfied that formalities for the registration of document containing Notice of Acquisition were not completed and so there was no acquisition in law, and therefore the land still belonged to the former owner. Both courts found that the tort of trespass was established.

The Court of Appeal of Tanzania construed the relevant provisions of the Land Acquisition Act, No. 47 of l967 and amendment thereof contained in Act No. 25 of l968.

Held: The acquisition of land under the Land Acquisition Act does not depend upon registration formalities under the Land Registration Ordinance, Cap 334. The acquisition is deemed complete when 6 weeks have expired after publication of notice to acquire and no objection raised.

Case Information

Appeal allowed.

[zJDz]Judgment

Nyalali, C.J., Makame and Omar, JJ.A.: This is a second appeal. The appellant, the National Bank of Commerce was allocated a parcel of land owned earlier by one Suleiman Nassor, deceased. The suit is prosecuted by his eldest son Ali Suleiman Nassor who is the respondent in this appeal.

The suit was filed in the RM's Court by the present respondent alleging trespass into his land situated on Plot No. 75 Block '5' # Liberty Street, Mwanza Municipality, by the agents of the National Bank of Commerce after the President through the Minister of Lands had given notice, which was published in the Official Gazette, of his intention to acquire this particular piece of land for public purposes. This piece of land was later allocated to the National Bank of Commerce, in Mwanza.

In order to determine whether there was trespass, certain laws like the Land Registration Ordinance Cap. 334 were taken into account and ultimately it was decided that formalities for the registration of document containing Notice of Acquisition were not completed and so there was no acquisition legally effected and so the land still belonged to the former owner. This view was also held by the High Court and the tort of trespass was established. We on our part hold a totally different view upon the proper construction of the Acquisition Act No. 47 of l967 and the amendment thereof contained in Act 25 of l968. Section 5 of the Act empowers the Minister responsible for lands to authorize any person to enter land with a view to examining it after the President had formed an intention to acquire it. In certain cases, three days notice to the occupier is deemed by the Act to be enough to enable such person to enter the enclosed space attached to a dwelling house.

When the intention to acquire has been formed then sections 6,7,8 and 25 apply. Under section 7(1), the Minister may direct the person upon whom the notice is required to be served under sec. 6 (i.e. the respondent in this case) to yield up possession of such land after the expiration of the period specified in the notice, which period shall not be less than six weeks from the date of the publication in the Official Gazette. In this particular case the period was from 5/8/83 to 16/9/83. Section 7(2) then states that:

At the expiration of the period specified in subsection (4), the President and all persons authorized by him shall be entitled to enter into and take possession of such land accordingly. 

The period mentioned above expired on 16/9/83. There is evidence that notice was served on the respondent and he signed at the bottom of the copy of notice (see Exhibit D.2). Section 25 of the Act states:

Where a notice to acquire any land under this Act has been published in accordance with the provisions of section 8, the persons entitled to transfer the land shall, within six weeks of the publication of the notice in the Gazette, transfer and convey the same to the President notwithstanding anything to the contrary contained in any written law or in any order made or issued by the court otherwise than under the provisions of this Act.

So section 7 directs respondent by notice to yield possession after expiry of 6 weeks while section 25 requires the persons concerned i.e. the respondent to transfer and convey to the President the land so gazetted notwithstanding (and this is the new addition of the Amendment Act 25/68) anything contrary contained in any written law or any court order made otherwise than under the provisions of this Act i.e. Acquisition Act.

About the formalities of registration which the two courts below were convinced they should be observed before the acquisition could be accepted as complete, the Acquisition Act does not consider the requirements of Registration Ordinance Cap. 334 as the prerequisite to the completion of the Act of acquisition. The fact of acquisition will already have been established by the expiry of the period indicated in the notice published in the Gazette.

Section 19(1) envisages a situation where acquisition is prevented by an objection raised within six weeks of the publication of the acquisition notice under section 6 and 7 of the Act followed by proceedings in court to determine a dispute concerning the intended acquisition. In such case, the President will not be required to complete the acquisition unless he has entered into possession of the land in dispute or he fails "within one month of the judgment of the court to intimate to the court that he does not intend to proceed with the acquisition".

This suit should not have been filed at all because there was no trespass whatsoever. After the expiry of 6 weeks from the date of publication of the notice the respondent should already have filed his objections but he did not do so and only 18 days later on 4/l0/83 he wrote to the Minister for Lands Housing and Urban Development (Ex. P.4) saying that during the publication of the notice of intention to acquire his land he was out of Tanzania and in August, l983 when he returned he was engaged in processing matters of administration of his late father who died in July l983. He wanted to be allowed to build apartments and renting them to guests visiting Mwanza and this the letter said was for the benefit of society or public purposes. This letter was not answered and we are not surprised. The land was then given to National Bank of Commerce to build structures to house their bank.

The main contention is the concurrent finding of the two courts that acquisition was not completed because registration had not been done before the plot was allocated to N.B.C.

We would emphasize that the acquisition of land under the Land Acquisition Act does not depend upon registration formalities under the Land Registration Ordinance. The acquisition is deemed complete when the 6 weeks have expired after publication of the notice to acquire and no objection raised.

Section 29(b) provides that: Where a certificate of Title is registered under section 28, such transfer disposition or certificate of title shall (there is deletion here of the whole reference to the requirements of G Cap. 334 Land Registration Ordinance by the Amendment Act 25/68) confer upon the President the land comprised or referred to in such transfer, disposition or certificate of title free from all adverse or competing rights, title, trusts, claims, and demands whatever etc. etc.

In the circumstances we are of the view that section 29(b) deals only with the effect of a certificate of title granted and registered in default of the previous owner of land executing a deed of transfer under section 25 of the Act. It does not deal with the acquisition of land. We say that even if there is no registration of the land so acquired  the acquisition is complete. Registration merely endorses or certifies the fact of acquisition and ensures that the record of it is kept at its A proper place in the land registry and that it reflects the vesting of such land in the President.

In the result we allow the appeal and confirm the transfer of this land to the National Bank of Commerce as being proper. We find no trespass to have been committed whatsoever for the reasons given above.

Appeal allowed.

1989 TLR p71

C