SARJIT SINGH v SEBASTIAN CHRISTOM 1988 TLR 24 (HC)

 

SARJIT SINGH v SEBASTIAN CHRISTOM 1988 TLR 24 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Kyando J

F 18th April, 1988

Flynote

Land Law - Letter of Offer - Significance of letter of offer - Offer of a Right of

Occupancy - Revocation of offer - Whether District Land Officer can revoke.

G Land Law - Right of Occupancy - When is a Right of Occupancy created - Section

6 of Land Ordinance (Cap. 113).

Land Law - Letter of Offer - Acceptance of offer - Payment of required fees, supplying

information required in the letter of offer - Certificate of Occupancy - Whether its

absence H nullifies offeree's title to the land.

Land Law - Letter of Offer - Revocation of offer by District Land Officer - Right of

Occupancy granted over the same plot with a certificae of title.

I Evidence - Letter of revocation - Not tendered by author thereof - Copy thereof

tendered in evidence - Documentary Evidence.

1988 TLR p25

KYANDO J

-Headnote

On 26/2/1977 the appellant (Sarjit Singh) was offered a right of occupancy over Plot

A No. 978 Msasani Peninsula, Dar es Salaam by the Kinondoni District Land Office.

The offer was contained in letter of offer Ref. No. D/KN/A 9782/AOM dated 26th

February, 1977. On 20/3/1980 the District Land Development Officer Kinondoni,

wrote the appellant a letter Ref D/KN/A 9782 JRC of 20/3/1980 by which he revoked

the B appellant's right of occupancy and offered it to the respondent (Sebastian

Christom) who was finally issued a certificate of occupancy for the plot. The appellant

is appealing to the High Court after being dissatisfied by the judgment and decree of

the Resident Magistrate's Court. C

The appellant's advocate argued that the District Land Officer has no power in law to

revoke a right of occupancy duly granted. He added that the Resident Magistrate

erred in law in considering the certificate of occupancy as constituting the right of

occupancy D itself. That the learned magistrate ought to have held that the right of

occupancy vested in the appellant immediately after he accepted the offer of right of

occupancy. The respondent's advocate argued, inter alia, that title to land vests only

when a certificate is issued.

Held: (i)A right of occupancy is created by the approval of the applicant's application

for E the grant of the same (i.e. a right of occupancy) and the acceptance by the

applicant of the granted right;

(ii) the revocation by the District Land Officer was of no effect as it was made

by someone who had no power to revoke titles as provided for under section 10 the

Land Ordinance (Cap. 113). F

Case Information

Appeal allowed.

Cases referred to:

1. Patman Garments Industries Ltd. v Tanzania Manufacturers Ltd.

[1981] T.L.R. 30. G

2. Col. S.M.A. Kashimiri v Maginder Singh Matharu (CA) Civ App. No.

4 of 1988 (unreported).

Raithatha, for the appellant H

Tenga, for the respondent

[zJDz]Judgment

Kyando, J.: This appeal arises out of the judgment and decree of the Resident

Magistrate's Court of Dar es Salaam, at Kisutu, whereby the respondent Sebastin I

Christom was declared the person legally entitled to Plot No. 978, Msasani Peninsula,

Dar

1988 TLR p26

KYANDO J

A es Salaam, as against the appellant Sarjit Singh. At the hearing of the appeal Mr.

Raithatha, learned advocate, appeared for the appellant and Dr. Tenga of the Legal

Consultancy Services, Faculty of Law University of Dar es Salaam, appeared for the

respondent.

The facts of the case are simple, although the legal issues which arise for

determination B are not as simple. Very briefly on 26/2/77 the appellant was offered

a right of occupancy over the plot mentioned hereinabove by the Kinondoni District

Land Office. The offer was contained in a Letter of Offer Ref. No. D/KN/A9782/AOM

dated 26th February, C 1977. It was tendered in evidence at the trial and marked as

Exh. P.A. Mohinder Sigh (PW1) who said he was appellant's brother and was acting

for him (the appellant) paid all the fees for the plot and apparently supplied all the

information required in the Letter of Offer on behalf of the appellant. He also

obtained a building permit from the City Council, Dar es Salaam, to build on the plot.

D On 20/3/1980 the District Land Development Officer, Kinondoni, wrote the

appellant a letter, Ref. D/KN/A9782/JRC of 20/3/1980 (in file Exh. D4) by which he

revoked the appellant's right of occupancy over the plot. Upon the revocation a right

of occupancy E over the plot, the same plot was offered to the respondent, (by letter

of offer tendered in evidence at the trial and marked as Exh. D1. It is dated

20/8/1980). The respondent paid the requisite fees, supplied the information as

usually required, and was issued with a F certificate of occupancy (Exh. D2) in

relation to the plot. He started construction on it. On noticing this, the appellant filed

this suit in the court below, seeking perpetual injunction to restrain the respondent

from erecting a building on the plot. He also prayed for costs of the suit and any other

relief as the court might deem fit. On 16th October, G 1987, the trial court (Msanche

RM) dismissed the suit and declared that the respondent was the rightful owner of

the plot in dispute because the appellant's title to it was revoked by the letter of the

District Land Officer Ref. No. D/KN/A/978/4/JRC dated 20/3/80. The appellant was

not satisfied with that decision and now appeals to this court against it.

H In grounds 1, 2, 3 & 5 of his memorandum of appeal the appellant contends as

follows:

1. The learned trial magistrate erred in law and fact in holding that the

appellant's title to the suit premises was revoked by the letter of the District Land

Officer I reference No. D/KN/A/978/4/JRC dated 20/3/1980. The learned trial

1988 TLR p27

KYANDO J

magistrate erred in relying on the said letter and/or erred in placing

any weight A thereon and/or the learned trial magistrate ought to have found and

held that the District Land Officer has no power to revoke a right of occupancy duly

granted.

2. The learned trial magistrate erred in law in considering the certificate

of B occupancy, Exhibit D.2, as the right of occupancy itself and ought to have held

that a right of occupancy vested in the appellant immediately after accepting the offer

for a right of occupancy. C

3. The learned trial magistrate erred in holding that the respondent had a

better title and ought to have held that the appellant being a prior grantee of the right

of occupancy was entitled to the suit land and ought to have further held that D the

subsequent grant of a right of occupancy of the appellant still subsisted was irregular.

4. The learned trial magistrate erred in holding that the appellant never

followed up but ought to have held that after payment of the necessary fees for the E

certificate of occupancy it was the duty of the land authorities to issue the certificate

of occupancy.

The letter of revocation was tendered in a file by a Financne Management Assistant

from F the Revenue Office, one Brown Mwambope (DW.2). It was not tendered by

the authors of it, i.e. the District Land Development Office. Before me Mr. Raithatha

argued that the letter was a copy and was tendered by an Officer who was not in

office when it was written. I agree. The letter was quite clearly a copy, sent to the

Revenue Office, by G the District Land Office for revenue purposes as DW.2 himself

says in his evidence. Very unfortunately, however, no objection to its introduction

into evidence was made by Mr. Raithatha, who also represented the appellant at the

trial, when it was being H produced by the respondent. Whatever the case,

however, I am satisfied that it was improperly admitted in evidence. The original of it

should have been tendered, unless there was an explanation, which was lacking in

this case, for the tendering of a copy. Also the officials in the District Land Office

should have been the ones to tender it, not I someone from the Revenue Office who

was only a receipient of a

1988 TLR p28

KYANDO J

A copy of it. Then, on this letter, the learned magistrate says in his judgment,

"Before the defendant got the offer of a right of occupancy on 20/8/1980, the plaintiff

had received a letter from the same office, the Kinondoni District Land Office. The

letter was D/KN/A.978/4/JRC dated 20/3/80" (underlining supplied). Going through

the record B there is no evidence that the plaintiff/appellant ever received this letter.

He did not say in his evidence that he received the letter. The only evidence on the

letter is that given by D.W.2 but he too does not testify to the appellant/plaintiff

receiving it. The above statement by the learned magistrate is therefore erroneous.

C Mr. Raithatha further argued that revocation was never pleaded in the

respondent's/defendant's Written Statement of Defence. He argued also that the

appellant's witnesses were never cross-examined on the question of revocation and he

submitted therefore that revocation was an after thought by the respondent. Indeed

D revocation was not pleaded in the respondent's Written Statement of Defence. Nor

were the appellant's witnesses cross-examined on it.

I would agree, therefore, that revocation in this case was a kind of an after thought.

E As indicated above the learned trial magistrate held that the offer of the right of

occupancy to the appellant "became actually revoked by the letter dated 20/3/80" in

deciding the case against the appellant. He also observed:

Mr. Mwalunguza (PW2) the then District Land Officer of Kinondoni told the

Court emphatically F that what the plaintiff (appellant) was given on 26/2/77 was an

offer of a Right of Occupancy and not a Title Deed. I think it is common knowledge

that when one attempts to acquire title to any piece of land, not only in Dar es Salaam

but also elsewhere, one first gets an offer, the G offer must then be accepted. Once it

is accepted the real title is granted. The grant of Right of Occupancy is not automatic

as some people tend to think, or would it necessarily follow after the offer is

communicated. I can see that for three years the plaintiff never made a follow up to

acquire the real title deed. Not only that: In fact he even never improved on the land.

The land H Office was in Law perfectly entitled to give that offer to another person

who was prepared to develop it.(Underlining supplied)

I The above holding and observations by the trial magistrate became the crucial

points in this appeal before me. Mr. Raithatha

1988 TLR p29

KYANDO J

took the position that a right of occupancy over a plot is granted by a Letter of Offer

and A then accepted by the offeree. The latter must pay the requisite fees and supply

the information required in the letter of offer to constitute acceptance on his part.

Once this is done a right of occupancy is created and granted to the grantee and this is

the grant to which S.6 of the Land Ordinance, Cap. 113 refers. He said there is no

other way of B granting a right of occupancy under Cap. 113 and that there are no

prescribed forms for such a grant. He referred this Court to the case of Patman

Garments Industries Ltd. v Tanzania Manufacturers Ltd. [1981] T.L.R. 30 and

submitted that in that case the appellant, Patman Garments Industries Ltd., had only

been offered a right of occupancy C whereas the respondents Tanzania

Manufacturers Ltd. had gone a step further and obtained a certificate of occupancy as

well. Yet, he said, the court of Appeal of Tanzania held in favour of the appellant and

said the President erred in revoking the appellant's right of occupancy; the court

nullified that of the respondents, and restored that of the D appellant even though

the respondents had a Certificate of Occupancy and the appellants had none. Mr.

Raithatha, citing a passage from Prof. James, "Land Tenure and Policy in Tanzania"

P.117, said a Certificate of Occupancy is not the right of occupancy itself, but E it is a

document evidencing the right. He concluded his arguments by submitting that as a

right of occupancy is created when an offer for it is made and there is acceptance of it,

once these (Offer and acceptance) are made no other person can revoke the right of

occupancy thus created except the President under S.10 of the Land Ordinance Cap.

F 113. He said as the President has delegated the power to revoke rights of occupancy

to the Minister for Lands and the Director of Land Development Services, only these

can also revoke a right of Occupancy - on behalf of the President. He contended

therefore that the purported revocation by the District Land Officer by the letter

referred to above G was invalid and without any effect as the said District Land

Officer had no power to revoke a right of occupancy once granted. He submitted that

because the purported revocation was without effect, the appellant is still the rightful

owner of the plot in dispute and that the subsequent grant of a right over the plot to

the respondent is null and void. H

In reply Dr. Tenga supported the position taken by the trial Court on this point and

submitted that an offer of a right of occupancy does not confer title to land on the

offeree. He said when an offer is made and accepted then the grant of a real title is

made. He I contended that the Letter of Offer is only a contract binding on the

Government

1988 TLR p30

KYANDO J

A to issue a Certificate of Occupancy. By itself, he said , it vests no title in the

offeree. The title, he submitted, only vests when the certificate is issued. He referred

me to a passage in a paper by Prof. G. Mgongo Fimbo entitled, "Double Allocation of

Urban Plots. A legal Labyrinth, Citizens' Puzzlement and Nightmare" which the

learned B professor delivered at a public lecture on 3rd September 1988 to the Law

Association of Tanzania. The passage appears at P.4 of the paper and is one of the

matters Prof. Fimbo summarizes as being undisputed. It says:

C The grant of a right of occupancy is manifested by the certificate of occupancy

and the right of occupancy vests in the relevant person on the execution thereof.

Dr. Tenga submitted that in view of the above passage the distinction by Prof. James

at D page 117 of his book referred to by Mr. Raithatha is of a rather technical nature.

He argued also that reference to a "Right of Occupancy" in relation to the Offer made

to Patman Garments Industries Ltd. in Patman Garments Industries Ltd v Tanzania

Manufacturers Ltd. (supra) was a a loose way of naming the deal for it was not, he E

argued, a "Right of Occupancy" as such.

He (Dr. Tenga) contended also that what the appellant got, upon being offered a right

of occupancy, was not a title to the land but a commitment from the Government to

issue a certificate of occupancy. He said when the certificate is issued it is at that stage

that the F Right of Occupancy vests in the grantee. He further contended that in this

case what was cancelled by the district Land Officer was not a "Right of Occupancy,"

which can only be revoked by the President, but a contract of offer. He argued that if

such concellation was done wrongfully the remedies the appellant has are specific

performance and G damages. He said, however, that these remedies are available to

the appellant not as against the respondent, but against the Government which issued

the offer and committed itself to issuing a certificate of occupancy.

H Finally Dr. Tenga also contended that as in this case the respondent already has

been issued with the certificate of occupancy, under s.33 (1) of Cap. 334 his estate,

being an estate of a registered owner, is paramount. He said if the appellant wants to

challenge the memorials in the Land Register the procedure is for him to apply either

to the High Court I or to the Registrar of Titles for rectification of the Land Register.

His position is that the present case is not a case of double allocation. He contended

that as the allocation to

1988 TLR p31

KYANDO J

respondent was made after the offer to the appellant had been cancelled, the question

of A double allocation does not arise. He submitted that the appellant's suit is

misconceived because there is no, he contended, grant of a right of occupancy which

vested in him. He prayed therefore that the appeal be dismissed.

As can be seen, both counsel have made very impressive and learned arguments. I

owe B them unlimited gratitudes for the efforts they made in preparing themselves

so well to present, and for making, these arguments. Also can be seen, the issue for

determination does not seem to have been the subject of judicial investigation and

determination before. Most authorities as they are available are on whether a

revocation by the President was C valid or not; I have not come across one on when

does a right of occupancy take effect or is created.

I now proceed to consider and determine this question of when a right of occupancy

is D established or created. The point of departure is, I think, the Letter of Offer

itself. I will examine and consider the effect of this first.

It (the letter) states, in part:

Your application for a long term Right of Occupancy (later in this letter called

the 'Right') over E this plot has been approved. On receipt of the fees and

information requested below I will send a certificate for you to sign containing the

following conditions:

(i) Term 99 years from 1/1/1977 F

(ii) Rent 480/= a year revisable after ten years

(iii) (Not applicable)

(iv) (Not applicable)

(v) The building to be in permanent materials. G

(a) Plans to be submitted to the Dar es Salaam Development

Council within six months from the date of the commencement of the Right.

(b) Building to begin six months from approval of the plans.

(c) Building to be completed within 36 months from

commencement of the Right. H

(vi) (Not applicable)

(vii) (Not applicable)

(viii) (Not applicable) I

1988 TLR p32

KYANDO J

A 2. The following information is required by me:

(a) Your full name (in block letters). No request to have certificate

of Occupancy written/issued in the name of a person or persons other than offered

shall be entertained.

B (b) Your full residential address, giving house number, and name of

street, and your P.O. Box number (if any).

(c) Whether you wish to hold as joint tenant or tenants in common

and if the latter the share to be taken by each of you. (The property of C deceased

joint detant in common passed to his/her heirs according to law).

(d) Whether certificate will be signed in Tanzania or abroad and, if

a Company, the manner of realing.

D Paragraph 3 of the letter lists various types of fees which the offeree was required

to pay and paragraph 6, the last paragraph of the letter, warns that unless the offer is

accepted and all fees are paid within 30 days from date of the letter, "the offer shall

lapse and after that date the land will be disposed of as I see fit without further

reference to E you."

The letter opens with the words "Your application for a long term Right of

Occupancy, (later in this letter called "The Right") over this plot has been approved."

Here, the applicant applies for a long term right of occupancy and he is informed that

the F application/is approved. The applicant did not apply for an offer: he applied for

a right of occupancy and the fact that it has been approved must, in my view, mean

he has been given or granted what he applied for, i.e. the right of occupancy. Then

the letter states that upon receipt of fees and information requested in the letter, a

certificate of G occupancy will be sent to the applicant. There is no further

procedure between the stages of approval of the application and the issuing of the

certificate once fees are paid and the information is supplied. So when is the grant

made? Obviously at the time of the "Letter of Offer" by which the applicant is

informed that the application has been approved. H Prof. James in his book referred

to above, at P.122 says "When granting unsurveyed land, the Land Officer usually

grants an Offer of Right of Occupancy," which is a formal document setting out all

the terms and conditions of the grant. The expression "offer of a right of occupancy" is

misleading because the document is not a mere offer, but it is a I final document

embodying agreed terms." Here he discussed offers or grants of rights over

unsurveyed

1988 TLR p33

KYANDO J

land but the document he discussed, i.e. the letter containing 'An offer of a right' is

the A same in relation to surveyed and unsurveyed lands. So the so called "offer of a

right of occupancy," as I have said, is the grant of a right itself, so that by what we call

a Letter of Offer a grant by the land office is in fact made of a right of occupancy over

a piece of land. B

The other document for consideration is the letter of revocation referred to above.

This letter states:

JAMHURI YA MUUNGANO WA TANZANIA C

OFIS YA WAZIRI MKUU

Mkoa Wa Dar es Salaam Ofisi ya Mkuu wa Wilaya

Simu 28691/2/3 Idara ya Ardhi (W)

Kumb. Na. D./KN/A/9782/JRC S.L.P. 9588

Dar es Salaam D

20/3/1983

KUFUTWA KWA HAKI YA UMILIKAJI WA KIWANJA NA. 988

MSASANI PENINSULA - DAR ES SALAAM E

Rejea barua yangu ya toleo Kumb. Na. D/KN/A 9782/ACM ya tarehe 26/2/1977

kuhusu somo hilo hapo juu.

Kwa barua hiyo ulitakiwa uwe umemaliza ujenzi wa nyumba yako ifikapo

tarehe 30/12/1979. F Mpaka hivi sasa hakuna kilichofanyika na hivyo bado kiko

wazi. Kutokana na hayo imedhihirika wazi kwamba umeshindwa au hutaki

kukiendeleza kiwanja hiki. Kwahiyo unaarifiwa kuwa haki yako ya kumiliki kiwanja

hiki imekwisha kuanzia tarehe ya barua hii na G kwamba unatakiwa kukiacha katika

hali safi.

Kwa barua hii Mkurugenzi wa Huduma za Ardhi, Afisa Mkoa wa Dar es

Salaam, wanaombwa kurekebisha kumbukumbu zako.

(Sgd) J.R, CHUMA H

AFISA MAENDELEO YA ARDHI (W)

KINONDONI

As can be seen, this letter is headed, "Kufutwa kwa Haki ya Umilikaji wa Kiwanja Na.

978 Msasani Peninsula ....." "Haki ya Umilikaji I

1988 TLR p34

KYANDO J

A Kiwanja" means a right of occupancy. So the District Land Officer was clear in his

mind as to what he was revoking, not a contract but a right of occupancy as his letter

states. He could not have been revoking a right of occupancy which he knew did not

exist - because of lack of a certificate of occupancy; he must have assumed that the

right of occupancy had come into existence because of the letter of offer and

acceptance of B the offer by the applicant the appellant.

Then some court decisions: As argued by Mr. Raithatha, in the Patman Garments C

Industries Ltd. v Tanzania Manufacturers Ltd. case (supra) what was revoked by the

President was the right of occupancy granted to the appellants. Patman Garments

Manufacturers Ltd. At the time of the revocation the appellants had not been issued

with a certificate of occupancy yet, though the respondents had. Yet what was

revoked is referred to in the judgment of the Court of Appeal as a right of occupancy,

not a mere D contract or commitment to issue a certificate of occupancy as Dr.

Tenga contends. Secondly, in the case of Col. S.M.A. Kashimiri v Maginder Singh

Matharu, (CA) Civ App. No. 4 of 1988 (unreported) a case to which I was referred by

Dr. Tenga, it is stated in the following passage from the judgment of Omar, J.A.:

E This is a case of double allocation of a parcel of land. Both parties to the suit

were each allocated the same plot within a space of two months. Respondent was the

first person to be allocated on 20/11/80 after the Allocation Committee known by the

name of Urban Planning Committee had sat on 18/11/80 and considered his

application and approved his name as the F now owner of the plot for a lease of 99

years. Respondent was required to pay the necessary fees for the plot within thirty

days from the date of this offer of right of occupancy before the plot could be legally

deemed to have passed to him.

G From this passage it is clear that land becomes legally owned or a right of

occupancy is established, once an offer for it is made and the offeree pays the fees.

The question of a certificate does not arise in order for a right of occupancy to be

created.

H As for the passage from Prof. Fimbo's paper referred to by Dr. Tenga, very

unfortunately it is not elaborate enough to show exactly what it was intended to

mean and in what context Prof. Fimbo makes the point. In one sense by saying that

the grant of a right of occupancy is manifested by the certificate of occupancy, he

may be taken to I mean the same thing as what were are trying to

1988 TLR p35

KYANDO J

say here, i.e. that a certificate of occupancy is evidence of a right of occupancy but

not A the right itself. But if he means that the certificate is the one which creates the

right of occupancy I think, with utmost respect, he cannot be right. Prof. James in his

book (supra) at p.117 says it is clear from section 9 of the Land Ordinance, Cap. 113,

"that a B certificate is not the right of occupancy itself, but is a document evidencing

the right...." In view of the mass of material I have attempted to examine above, I am

of the view that it is him who is right and I will not accept the statement of the law as

made by Prof. Fimbo on the point under consideration.

From the above then, it is obvious that the District Land Officer revoked a right of C

occupancy. He himself in fact knew that he was revoking a right of occupancy for he

states, as already shown, in the heading of his letter "Kufutwa kwa Haki ya Umilikaji

wa Kiwanja..." (Revocation of a right of occupancy). I hold therefore that a right of D

occupancy is created by the approval of the applicant's appliaction for the grant of

one, i.e. a right of occupancy, and the acceptance by the applicant of the granted

right. The trial magistrate was clearly wrong therefore when he held that what was

revoked by the District Land Officer was not "the real right of occupancy" but only

"an Offer of a right of Occupancy." As Prof. James states in his book referred to above,

"Offer of a right of E Occupancy" is a misleading term, as the offer is in fact the grant

itself. There is therefore no such thing as "real right of occupancy" in law, a term

employed by the trial magistrate in his judgment.

Did the District Land Officer have power to revoke the right of occupancy? Obviously

F not. While power to grant rights of occupancy have been delegated to him (see

James, "Land Tenure and Policy in Tanzania" (supra), p. 116, no powers to revoke the

rights have been delegated to him. It is only the President who has such powers, or at

the G lowest, the Minister for Lands or the Director for Land Development Services.

So the purported revocation of the right of occupancy granted to the appellant in this

instant case was of no effect at all. It was made by someone who had no power to

revoke.

Is it perhaps that failure to complete building on the plot by the appellant within 36

H months from the date of commencement of the right caused the right to lapse? I do

not think this was possibly the case, for although there is this requirement that

building was to be completed within 36 months there is no indication in the Letter of

Offer as to what I would happen if construction had not been finished within that

period. In paragraph 6 of the Letter of Offer, it

1988 TLR p36

KYANDO J

A is only failure to accept the grant and to pay fees within 30 days "from the date of

this letter" that lead to lapsing of a grant. Nothing occurs where development within

the 36 months is not carried out according to that Letter. Revocation for failure to

develop must therefore be resorted to only as provided for in s.10 of the Land

Ordinance Cap. 113. B Under that section the President can revoke a right of

occupancy for good cause on the ground of non-development if the holder of a right

has abandoned or does not use the land for a period of five years. So even if the

District Land Officer had powers to C revoke, he would have acted prematurely in

the instant case by revoking for non-development for a period of three years only.

The law provides for abandonment or non-use of land for five years, not three years,

to warrant a revocation of a right of occupancy over it.

D What then is the result of the District Land Officer's wrongful and in ineffectual

revocation of the appellant's right? Dr. Tenga, as shown above says the remedies to

the appellant are in specific performance and damages, as against the Government. I

do not think that is the case. First as Dr. Tenga himself submitted, those would have

been the remedies if I had held that what was revoked was a mere contract. But I

have held that E what was revoked was a right of occupancy conferring upon the

appellant's rights over the suit plot. If the perported revocation was without effect as I

have held it means that those rights were never in law ever taken away from him (the

appellant) and the only thing for this court to do is to declare that he is still the

rightful owner of the plot. F Appellant's rights over the plot still subsisting, it means

that any later grant of a right over the same plot is null and void. In other words

nothing was granted at all after the grant to the appellant for the land Office could

not have granted another right over a plot it had already granted to another person. I

declare here that the grant or purported grant of a G right over the plot in dispute in

this case to the respondent in null and void. The appellant remains the rightful owner

of the suit plot.

Secondly concerning a possible claim for specific performance and damages against

the H Government, I think this is open to either party, who eventually loses in a suit

over a disputed plot to sue for these. In the instant case it can be said that it is open to

the respondent too to sue the Government for allocating him a plot over which the

existing right of occupancy had not been properly revoked. I do not accept the

argument that the appellant, the rightful owner of the the plot, should have been the

one to sue for specific I performance and damages as against the Government. This

stop is open to either party and I think, as I have said, it all depends on who

eventually

1988 TLR p37

loses in a suit over a disputed plot. A

As to whether the appellant should have sought a rectification of the Land Register

rather than sueing as he did, the course of action the appellant took has been taken in

many cases against registered grantees of rights of occupancies (see, e.g. Patman

Garments B Industries Ltd. v Tanzania Manufactures Ltd. case (supra).) So I do not

think by suing the appellant adopted an unusual or improper step in seeking redress

in this case.

In the final analysis therefore, I hold that revocation in this case was not pleaded or

proved by credible evidence. If it was proved, it (the revocation) was done by a

person C who had no power to do it. For these reasons I declare that the appellant is

the rightful owner of Plot No. 978, Msasani Peninsula, Dar es Salaam, and the prayer

for perpetual injunction against the respondent is granted. I allow the appeal by the

appellant and set aside the judgment and decree of the trial court which erroneously

deprived him of the D plot. The respondent is given one month from the date of this

judgment to remove the structure he has put up and the materials he has collected on

the suit plot. He is restrained, together with his agents or servants, from interfering

with the plot in anyway.

Appeal allowed. E

1988 TLR p37

F