RAMADHANI KAMBI MKINGA v RAMADHANI SAIDI 1985 TLR 140 (HC)

RAMADHANI KAMBI MKINGA v RAMADHANI SAIDI 1985 TLR 140 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mapigano J

12 February, 1986

CIVIL APPEAL 17 OF 1985

Flynote

Land Law - Right of Occupancy - Land held under a right of occupancy - Land

purchased D under dubious circumstances - Purchaser effects unexhausted

improvements -Whether purchaser entitled to compensation for such unexhausted

improvements.

-Headnote

The appellant is the owner of land held under a right of occupancy. While he was in

E prison the respondent bought it for Shs. 4,000/=, did not effect necessary transfer to

himself, built a house on the land and made other improvements. After his release

from prison the appellant claimed back his land. The trial court decided in his favour

but F ordered him to pay the respondent compensation for the unexhausted

improvements effected on the land. The appellant appealed against the compensation

order.

Held: (i) Where A knowingly or recklessly enters upon B's land in circumstances that

G amount to a trespass and B promptly makes protests against his entry, A is not

legally entitled to be paid any compensation by B for any of the improvements he

might have effected on the land in the course of the trespass;

(ii) the respondent is not entitled to compensation for the unexhausted H

improvements because he did not enter upon the appellant's land in good faith.

Case Information

Appeal allowed. I

Cases referred to:

1. Saidi Kirungura v Issa Khamisi [1973] L.R.T. n.28

1985 TLR p141

MAPIGANO J

2. Alli Mangosongo v Crispina Magenje [1977] L.R.T. n.18 A

3. Anna Benedict v Sefu Mrisho and Another [1977] L.R.T. n. 36

4. Hamisi Sinahela v Assan Mbele [1974] L.R.T. n.28

Mr. Rahim, for the appellant B

Judgment

Mapigano, J.: This is an appeal against the order that the learned resident magistrate

made at the end of his judgment dated 8/12/83, requiring the appellant to make

reasonable compensation to the respondent in respect of certain improvements that

the respondent had carried out on the plot of the appellant. The C learned

magistrate did not go further and assess and fix the quantum of the said

compensation.

It was common ground that the appellant Ramadhani Kambi Mkinga was since July,

1977 the grantee of a right of occupancy in a parcel of land described by the land

office as plot No. 475 Block 8, Mwananyamala B Area, Dar es Salaam, and held a

certificate D of title bearing No. 135791, valid for a period of 33 years. He had

sought and obtained a building permit from the City Council, but his desire to start

constructing a dwelling-house on the plot met a drawback. On 10/10/77 he was

convicted of an offence by the district court at Kisutu and was consequently sent to

jail for a term of eight years. While he was serving the term he got wind of an

unsettling rumour that the E respondent Ramadhani Said had entered upon the plot

and occupied it. Naturally he was perturbed. According to him, he had not

authorised any one to sell the plot. He wrote the land office to protest. As he came to

find out on being discharged from prison on 10/2/83, the land office was not at all in

the know about the respondent's purchase of F the plot. According to the records of

the land office, the right of occupancy over the plot was still vested in the appellant.

All that happened when he called at the land office to make enquiries is that he was

required to pay the land rent and service charges that had fallen due.

However, the appellant's inspection of the plot had confirmed the rumour that had H

filtered into the prison. He observed that the respondent had erected a building on

the plot. The appellant instituted these proceedings in the court of Resident

Magistrate at Kisutu upon the respondent's refusal to acknowledge that the appellant

was still the owner of the suit-plot.

The respondent contested the action, claiming that he had purchased the plot for

shs,4,000/= from DW.2 Hadija Sultani, the mother of the appellant. According to

him, this Hadija and one Maulidi had approached him and disclosed to him that they

were earnestly looking for someone to buy the plot for shs. 4,000/=. According to

him, this I Maulidi had custody of the certificate of occupancy. According to him,

he became interested

1985 TLR p142

MAPIGANO J

in the proposal and on or about 9/1/78 he agreed to buy and bought the plot at the

price A proposed. He was then given the certificate of occupancy as well as the

building permit, both documents showing that the right in the plot had been granted

to Ramadhani Kambi Mkinga. According to him, when he questioned Hadija about

these particulars, she replied to say that Ramadhani Kambi Mkinga was her son, that

he was in prison and B that he had authorized her to sell the plot. He said he was

satisfied with her explanation and started constructing a house on the plot without

bothering to check out with the appellant or to have the disposition approved by the

land office.

Hadija was called by the respondent. She denied making any offer to the respondent

in C respect of the plot. She also denied ever receiving any instruction from the

appellant to sell the plot and holding herself out as having been authoritised to do so.

Further, she denied having been a party to the purported sale. For reasons that were

not recorded Maulidi was not called. D

The learned magistrate considered the evidence and held that the purported sale was

invalid and that the appellant is still the holder of the right of occupancy over the

plot. That decision was justified by the evidence and in actual fact no cross-appeal

has been preferred from it, which is a strong indication that the respondent is

satisfied with that E decision.

In effect the learned magistrate found that the appellant had never appointed either

Hadija or Maulidi to be his agent to sell the plot and that if any of the two persons

professed to contract on behalf of the appellant, she or he was actually practising false

F pretences. The magistrate appears to have cleared Hadija and to have attributed

blame to Maulidi. For myself, I would go further. I would say that the righteousness

or bonafides of the respondent at the time of the transaction is also seriously

questionable, considering in particular the fact that the matter of transfer of a right of

occupancy in Dar G es Salaam is not a trifling affair. That plausibly explains two

singular things: why the appellant made no efforts to ascertain Hadija's authority to

act for the appellant and who for years he never bothered to secure the consent of the

authorities to the transfer.

The magistrate next found that the respondent had wrongfully entered upon the plot,

in H the language of the law, that he had committed a trespass. That finding cannot

be faulted and again it is to be noted that no cross-appeal has been lodged by the

respondent against it.

Then the magistrate proceeded to deal with the issue of reliefs and went into that

matter in the following manner: I

1985 TLR p143

MAPIGANO J

The defendant (respondent) was innocent for what he purchased turned out to

be some one's A plot and made improvement on it. Is he entitled to any

compensation for these improvements? The defendant had an apparent reason for

making the improvements. The plaintiff should not benefit from them without

compensation. Therefore it is ordered that the house in this suit plot be demolished

and plaintiff compensates the defendant a reasonable B compensation for the

improvements done on the plot.

I may pause to remark that it is difficult to follow the logic of this decision. The order

of the learned magistrate seems to be self-contradictory. On one hand he ordered

that the C house the respondent had constructed on the plot should be pulled down

while on the other he required the appellant to pay compensation to the respondent

for the benefits of the improvement that the respondent had effected on the land. I

put the question: what benefits if the house was to be demolished? D

As pointed out at the outset, the appellant is dissatisfied with this part of the learned

magistrate's judgment. Mr Rahim who advocated for the appellant submitted that the

learned magistrate erred in awarding the respondent compensation, in view of the

magistrate's earlier finding that the respondent was a trespasser. He referred this

court E to the decision in Saidi Kaangura v Issa Khamisi, [1973] L.R.T. no.28. I will

reflect on this decision, but let me first turn to the two decisions that the learned

magistrate supposedly relied on.

The first is Alli Mangosongo v Chrispina Magenje, [1977] L.R.T. n. 18. In that case

the appellant was permitted to till a piece of land of the respondent, but he was

expressly F told not to grow permanent crops there. In due course the respondent

disregarded the instruction and grew permanent crops. The appellant promptly

protested, but the respondent reacted by laying claim to the land in question. When

the matter came to appeal before the High Court, Kisanga, J. (as he then was) held

that a person is entitled G to compensation for improvement effected on the land if

at the time of carrying out such improvement he had apparent justification for doing

so, for example; he said, where he bought and developed the land in good faith but it

later transpires that the seller had in fact no title to such land which he could have

passed to him. On the facts of that case H the learned judge took the view that the

appellant had grown the permanent crops in bad faith and accordingly held that he

was not entitled to any compensation in respect of those crops.

The second authority which the learned magistrate cited is Anna Benedict v Sefu

Mrisho and Another, [1977] L.R.T. no. 36. There the right of occupancy in the plot in

I dispute had been vested in the appellant.

1985 TLR p144

MAPIGANO J

Subsequently a body of officials incompetently purported to re-allocate the right to

the A respondent, upon which the respondent entered upon the land and started

constructing a house thereon. The District Court of Morogoro held that the appellant

was still the rightful holder of the right and granted him vacant possession of the

house the respondent had built, on condition that he first should pay full

compensation to the respondent. B Dissatisfied with the compensation order, the

appellant took it to appeal, on the ground, inter alia, that since the respondent was a

trespasser he was not entitled to any compensation. In the High Court the appeal

came before the late Biron, J. who held that C the respondent was not strictly a

trespasser as he had been misled into believing that he had lawfully acquired the right

of occupancy over the plot. The learned judge was of the view that the case came

four square within the principles which were applied by Mnzavas, J. (now elevated to

JK) in Hamisi Sinahela v Assan Mbwele, [1974] L.R.T. n, 28: viz that a party should

not reap the benefit of the improvement to the land effected D by the opposing

party without paying for such benefit and compensating the opposite party for his

expenditure in so improving the value of the land. Biron, J. went on to observe that

that viewpoint finds bases in both the equitable doctrine of unjust enrichment and

the legal principle laid down in section 72 of the Law of Contract E Ordinance. So

Anna Benedict v Sefu Mrisho and Another was also a case of good faith.

Saidi Karungura v Issa Khamisi, on which the appellant relies, was dissimilar. There

it was not in dispute that the appellant had trespassed upon the land of the

respondent and proceeded to erect a house thereon. And what's more, the District

Court found that F he had done so with full knowledge that the land was at the

material time owned and occupied by the respondent. And what's even more, the

court also found that the respondent had promptly protested against the appellant's

entry and doings. In these premises the court held that the appellant was not entitled

to any compensation for any G unexhausted improvement he might have made on

the land. The decision was wholly affirmed by the late Mwakasendo, Ag. J. (as he

then was) on appeal. It was a case of bad faith.

As demonstrated, one theme runs through all these cases and it is this: where A H

knowingly or recklessly enters upon B's land in circumstances that amount to a

trespass, and B promptly (i.e. at the earliest possible opportunity) makes protests

against his entry, A is not legally entitled to be paid any compensation by B for any of

the improvements he might have effected on the land in this course of the trespass

The instant case is, on balance, such a case. In my opinion this is not a case of the I

respondent having entered on the land in good faith. By

1985 TLR p145

MAPIGANO J

his own admission, he knew, at the material time, that the person in whom the right

of A occupancy over the plot was vested was undergoing imprisonment. If it is true

that the mother of the appellant told him that she had been clothed with authority to

transact for the appellant, which is in grave doubt and which story the learned

magistrate disbelieved, he ought to have been wary and thoughtful enough to check

out her story with the B appellant. It would not have been difficult to do so.

In any event there is a circumstance that argued against the award of compensation.

The house in question is a wattle and daub structure and it is very much doubtful that

it was constructed in accordance with the conditions of the right of occupancy and

the building C rules of the City Council. Probability is that if the appellant leaves it

to stand he may one day be called upon to pull it down.

In the final result I allow this appeal and set aside the trial magistrate's order

awarding compensation to the respondent. The appellant will have his costs in both

this court and in the lower court. D

Delivered to the parties.

Appeal allowed.

1985 TLR p145

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