COLONEL KASHIMIRI v NAGINDER SINGH MATHARU 1988 TLR 163 (CA)

 

COLONEL KASHIMIRI v NAGINDER SINGH MATHARU 1988 TLR 163 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JJA, Kisanga JJA and Omar JJA

6 September, 1988 B

Flynote

Land Law - Double allocation - Procedure of allocation of land.

-Headnote

The respondent was allocated a piece of land by the Urban Planning Committee on 18th November, 1980 on condition that he pays the necessary fees within thirty days from C date of offer. He was delayed in paying the fees by the land officer who told him to wait until certain matters concerning resurvey of the surrounding areas were completed. Two months after the respondent was allocated the plot, the appellant was also allocated the same plot. The trial judge found that the respondent obtained the plot through approved channels and the late payment of fees by him was duly authorized. The appellant's D application, on the other hand, did not follow the proper procedures and was not approved by the Director for Land Development Services. E

Held: The plot was properly allocated to the respondent, and not to the appellant.

Case Information

Order accordingly. F

[zJDz]Judgment

Omar, Makame and Kisanga, JJ.A.: The appellant Col. S.M.A. Kashimiri is aggrieved by the decision of the High Court (Maina, J.) dismissing his petition against respondent Naginder Singh Matharu for vacant possession of a piece of land variously described as plot No. 17 Block "5" Keko Industrial Area and Plot No. 17 Chang'ombe G industrial Area. He is now appealing against that decision.

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 H to be allocated on 28/11/80 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 new 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 I offer of right of occupancy before the plot could be legally deemed to have passed to him. Respondent, however, did not pay the fees until one year later for A reasons beyond his control. He was asked by the District Land Officer to delay payment of fees until certain matters as to resurvey of the surrounding area of this plot had been completed, matters which were expected to involve new boundaries of this plot with B consequent alteration of fees. So the respondent waited. In the meantime on 28/1/81 two months after the respondent had been allocated this plot, Plot 17 Chang'ombe Industrial Area, Dar es salaam the appellant Col. Kashimiri was also allocated the same plot. This time it was called Plot No. 17 Block 5 Keko Industrial Area, Dar es Salaam. C

We believe this is one and the same plot and none of the officials of the Ministry of Lands and the City Council who gave evidence had said otherwise. In fact if these were two different plots the parties to the suit would have gone their separate ways to develop their respective plots and no dispute would have arisen. D

The learned trial judge found that the respondent obtained this plot through approved channels and the late payment of fees by him was duly authorized whereas the plaintiff's application if there was any, did not pass through the allocation committee and therefore E he did not obtain this plot through the same laid down procedure as the other applicant. When the two documents of Right of Occupancy were before the Director for Land Development Services (DLDS) for his approval and signature before they could be sent for registration by the Registrar of Titles in the Land Registry, the DLDS F approved the document which bore the name of the respondent and rejected that of the appellant. In other words he disregarded the claim of the appellant to title of the land and upheld that of the respondent and so the respondent obtained his certificate of title to this piece of land.

In order to satisfy ourselves as to the authenticity of this approved procedure of G allocation of plots which was given in the testimony of land officers, we went through circulars of the then Ministry of Lands, Housing and Urban Development and came across this one circular No. NLUUD-C-1133/11/23 dated 13.11.78 signed by the Principal Secretary one Joshua Daniel Minja which is titled "Plot Allocation".

The circular does lay down the procedure referred to above for plot allocation and warns that any infringement of it will be visited by the cancellation of certificate of title so obtained. It in effect directs that all applications for allocation of plots must pass through I the allocation committee; in the cities there will be urban planning committees and in other areas there will be other committees - all specified. The circular warns that no individual land officer, be he a city land officer or a district land officer or even DLDS, would be allowed to allocate a plot himself and any such allocation will not be recognised as valid by the Ministry of Lands.

We accept this procedure of the Ministry of Lands as valid and sound. It is geared to avoid the confusion and embarrassment emanating from the practice of multiple B allocation of the same plot to various people.

We accordingly find that this plot was properly allocated to the respondent but not to the appellant. C

Appeal dismissed.

1988 TLR p165

D