JOSHUA SHIJA KISENDI v PAULO KATOTO AND ANOTHER 1986 TLR 111 (HC)

JOSHUA SHIJA KISENDI v PAULO KATOTO AND ANOTHER 1986 TLR 111 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya J

C

26 June, 1987

CIVIL CASE 16 OF 1977

Flynote

D Tort - Trespass - Trespass over land held under a right of occupancy - Whether Trespass

committed before grant of right of occupancy by one who held the land under a deemed right of

occupancy or as licencee is actionable.

Headnote

E The plaintiff was on 1/7/1978 granted a right of occupancy over a plot which was occupied

by the defendants either as licencees or under a deemed right of occupancy. In 1977 he sued the

defendants for trespass which he claimed started in July, 1975.

F Held: Since prior to 1/7/1978 the defendants were in lawful occupation of the said plot either

as licencees or with a deemed right of occupancy when the suit was filed in 1977 there was no

cause of action

Case Information

G Judgment for defendants

Case referred to:

1. Tyrringham's Case [1584] 4 Rep. 4b., 38b.

2. Hemmings v Stoke Poges Golf Club [1920] 1 K.B. 720

H Rugarabamu, for the plaintiff

[zJDz]Judgment

Mwalusanya, J.: The plaintiff Joshua Shija Kisendi is claiming damages against the defendant

Paulo Katoto Building Contractors for trespass on his land. It is alleged that the defendants

trespassed on his land situated on I plot No. 195 A Block

1986 TLR p112

MWALUSANYA J

A U, Rwagasore Street in Mwanza Municipality. He claims shs.25,000/= as general damages

for the trespass. And he also claims mesne profits of shs.1,000/= p.m. from the day the trespass

started in July 1975 to date, and the same amounts to shs. 233,000/=. The mesne profits arise

because it is alleged the plaintiff was deprived opportunity to use B and develop his plot of land

when defendant occupied it. The trial of this case proceeded in the absence of the defendants as

is allowed under Order 17 rule 3 of the Civil Procedure Code Act No. 49 of 1966 because the

defendants declined to proceed with the case when they were not ready. Anyway in the written

statement of defence, the defendants C assert that the plot in dispute is their property which

they bought at a public auction in Mwanza on 5/11/1975. And they assert that they have the

relevant receipts to establish the sale to them of the plot.

In his testimony in court the plaintiff produced a certificate of right of occupancy (Exh.A) to

indicate that he is the lawful D owner of the plot in dispute. However on perusal of the said

certificate I notice that the grant of right of occupancy of 99 years started to run from 1/7/1978.

And the plaintiff conceded at the trial that defendant had bought a hut and some E timber

lying on that plot on 5/11/1975, and that the purchase was at a public auction from the former

owners the Geita General Store.

Now assuming that the facts as narrated by the plaintiff are correct, was there any trespass on

29/8/1977 when this suit F was filed? Certainly not. This is because the grant of right of

occupancy to the plaintiff started to run on 1/7/1978. Therefore prior to 1/7/1978 the defendants

were in lawful occupation of the said plot either as licencees or with a deemed right of

occupancy. Therefore it is crystal clear that when the suit was filed there was no cause of action.

On this ground alone, this suit must fail.

G Can I uplift the cause of action to start to run on 1/7/1978? Certainly not, because I will be

amending the plaint contrary to the view of the plaintiff himself. I am not allowed in law to

amend the plaint contrary to the wishes of the plaintiff himself. The plaint as it stands cannot

prevail nor succeed.

H Now it is not disputed that from 1/7/1978 the plaintiff became the legal owner of the plot in

dispute, the question arises, did the defendant become a trespasser thereon? Certainly not. The

land office had bungled the whole thing. It was wrong for the land office to allocate that piece

of land to the plaintiff without taking the appropriate legal steps to I evict the occupier who

was a licencee and not a trespasser. They had an obligation to revoke the licence first.

1986 TLR p113

MWALUSANYA J

A A person unlawfully using and occupying public land may be evicted at the instance of the

land officer acting on behalf of the President in whom the control of public lands is vested.

Prof. R.W. James in his book Land Tenure and Policy in Tanzania (1971) E.A.L.B. at pp-102-103

tells us that entry on the land by the Land Officer may be made peaceably or B by commencing

a civil action for possession. The practice of the land officers is to serve a notice upon the

unlawful occupier requiring him to quit and deliver up vacant possession of the public land on

or before a stated date. If the notice is ignored the officer then files a plaint in the R.M.'s Court

where the land is situated asking for (a) a declaration that the C defendant is in unlawful

occupation of the land and (b) an order for him to surrender the land to the government within

such period and upon such terms as the court shall deem fit as per s.23(1) of the Land Ordinance

Cap. 113. The proof that his occupation is lawful rests upon the defendant, the averment that

land is public land being sufficient proof of that D fact by virtue of s.23(3) of the Land

Ordinance. The Court may make an order requiring the occupier to vacate the public land and

it may allow him to remove buildings and other items on the said land. A squatter who remains

in occupation of public land after the date when he was ordered to surrender the land or who

having surrendered the same, E renews his unlawful occupation thereof, is guilty of an offence

and is liable to a fine not exceeding shs.2,000/= and in the case of continuing offence an

additional fine not exceeding shs.5,000/= for every day during which he continues to occupy the

land - see s.23(2) of the Land Ordinance. However very often the Land Office thinks that that

procedure is F slow and cumbersome and so they do not utilize it. That is wrong and it is

exactly the same mistake they committed here.

It is the view of Prof. R.W. James who is an authority on land law in Tanzania that such an

occupier after the land is G allocated to another person is more or less not a trespasser. He says

at p.103 of his book cited above:

It is arguable that squatters have a 'reasonable excuse' for the unlawful use and

occupation of public lands. Moreover the Land Ordinance is not entirely unambiguous on the

legality or illegality of African's rights on crown lands. It is also doubtful, to say the least,

whether squatters can be said to enter upon enclosed lands of another, when they were the

former owners of the land and have effected some improvements under a claim of ownership. I

1986 TLR p114

MWALUSANYA J

A And Winfield on Law of Tort (1963) 7th Ed. by J.A. Jolowicz and T. Ellis Lewis (Sweet and

Maxwell) at p. 378 holds the same view that in such circumstances the defendant was a licencee

and that it is only after revocation of the licence that a licencee becomes a trespasser. I am in

agreement with that view and I adopt it. So it is fallacious to hold B the view that defendant

was an outright trespasser when the licence was not revoked by the land office.

Now suppose it is accepted that defendant was a trespasser, is the plaintiff entitled to such

colossal sums claimed as damages? Certainly not, notwithstanding the fact that the tort of

trespass is actionable per se and therefore there is no C need to prove the damage done, such a

huge sum of sh.25,000/= as general damages would only be awarded in the clearest and most

flagrant cases of trespass. That was not the case here. So if the plaintiff was successful I would

have awarded only a nominal sum of sh.2,500/= as general damages. D

The claim of mesne profits amounting to sh.233,000/= is equally misconceived. It is true that the

owner of land is entitled to damages for having been deprived possession and opportunity to

develop his land. But at the same time I am of the view that the owner of land has an obligation

to mitigate his loss. The owner of land has the right to remove the things on E his land and also

the right of entry on that land. The right to remove the things on ones land is known as 'distress

damage feasant'. He has the right to seize and distrain the things on his land and he keeps them

as security for the F damage done to his land but he is not entitled to sell them - see the

Tyrringham's Case (1584) 4 Rep. 4b., 38b; see also Winfield on Law of Tort at p.383 (supra). And

right of re-entry is recognised by law. The person entitled to possession of land can enter or reenter

the premises though the law requires him to do so in a peaceable manner, G otherwise he

commits a crime punishable by imprisonment. But whatever his criminal liability may be, he is

not civilly liable if he uses no more force than is necessary - see the English case of Hemmings v

Stoke Poges Golf Club [1920] 1 K.B. 720 which I adopt. So in this case at hand, if the plaintiff

had distrained the goods on his land early enough and H entered on his land, such a huge claim

of mesne profits would not have arisen. And so even if the plaintiff had succeeded in his claim I

would have awarded him only a token sum of sh.2,500/= as mesne profits.

In the event the suit fails and I enter judgment for the defendant with costs. I

Order accordingly.

1986 TLR p115

A

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