SALUM JUMA MZERU v OMARI UBAYA 1984 TLR 31 (HC)

SALUM JUMA MZERU v OMARI UBAYA 1984 TLR 31 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Bahati J

February 21, 1985

B CIVIL APPEAL 6 of 1984

Flynote

Land Law - Compensation - Compensation for improvements made on another

person's plot - Whether the one who made improvements is entitled to

compensation.

-Headnote

C The respondent built on the plot of land belonging to the appellant. The

respondent was asking for compensation because he did not know that the plot on

which he was building had an owner and that he had his letter of offer for the same

plot. He said that since he had spent money on the plot D and since he was not to

blame for the mistake of giving him an offer for that plot, he was entitled to

compensation. The appellant on the other hand argued that the respondent was not

entitled to any compensation because he was building on another person's land

without even a building permit and had to be stopped from doing so by arresting his

workmen on the plot.

E Held:(i) There was no reason for compensation since it was not equitable to force

the appellant to take the building he did not want;

F (ii) since the respondent had developed land and since there was no

compensation, the respondent could demolish his building and carry away his

building materials.

Case Information

Appeal allowed.

G Cases referred to:

1. Conway v Whimpy [1951] 2 KB 266

2. Anna Benedict v Mrisho (East African Court of Appeal, No. 41 of 1976

unreported).

H 3. Christopher Nyirabu v M.P. Nyagwaswa (High Court, Dar es Salaam

Civil Case No. 61 of 1981 unreported).

A. Omari for the appellant

[zJDz]Judgment

Bahati, J.: The issue in this appeal is whether the respondent should be compensated

for the I building he constructed on the plot of land belonging to the appellant. The

1984 TLR p32

BAHATI J

appellant has argued that the respondent is not entitled to any compensation because

the A respondent was building on another person's land without even a building

permit and he had to be stopped from doing so by arresting his workmen on the plot.

Mr. Omari learned counsel for the appellant cited the cases of Conway v Whimpy

[1951] 2 KB 266 and Civil Appeal No. 41 of 1976 Anna B Benedict v Mrisho which is

a court of Appeal Case. He also cited my recent decision in the case of Christopher

Nyirabu v M.P. Nyagwaswa which is Civil Case No. 61 of 1980 in support of his

argument. He concluded by submitting that even the respondent did not ask for any

compensation for his building and as such it was wrong for the learned Magistrate to

order such compensation. C

In reply, the respondent said that he was asking for compensation because he did not

know that the plot on which he was building had an owner and that he had his letter

of offer for the same plot. Since he had spent money on that plot and since he was not

to blame for the mistake of giving him D an offer for that plot, he was entitled to

compensation.

In a short reply Mr. Omari submitted that the respondent had filed a written reply to

the appellant's memorandum of appeal. In that written reply the respondent was

saying that he knew that the land in E question was of someone else and that he

made the constructions amidst objections by the appellant. Mr. Omari asked the order

for compensation to be set aside.

This appeal can be disposed of on the authority of Civil Appeal No. 41 of 1976 Anna

Benedict v Mrisho. In that case a committee purported to allocate the plot already

allocated to the appellant F (Anna) to the respondent (Mrisho). After allocation

Mrisho began constructing a building on the plot. Anna saw this and filed a suit in the

Resident Magistrate Court claiming ownership of the land in question. The resident

Magistrate's court held that the land belonged to Anna and that Mrisho G should

vacate it. But the Resident Magistrate's Court ordered that Anna should pay

compensation to Mrisho for the improvement he had put on the land. It should be

remembered that Mrisho went on to build on the land even after he had got notice

that the land was in dispute. On a final appeal to the H Court of Appeal for East

Africa the Court agreed with the High Court that a party should not reap the benefits

of the improvements to the land effected by the opposing party without paying for

such benefit and compensating the opposite party for this expenditure in so

improving the value of land. But this principle of "unjust enrichment", as the court

put it, did not apply in that case because I

1984 TLR p33

A the court did not find it equitable to force Anna take up a building which she

might not have wanted to build in such a fashion since she might want to build a less

expensive building altogether. The Court found that the most reasonable thing to do

was to order Mrisho to demolish his building B and take away all his material within

a certain period. Failing to do so within that period all the material on the land would

become the property of Anna.

I notice that the learned trial Magistrate in our present case referred to the case of

Anna Benedict v Sefu Mrisho but unfortunately he was not aware that there was a

court of Appeal decision in that C case which set aside the order of compensation as

I have shown above. Our present case is on all fours with Anna Benedict's case. Like

the Court of Appel in Anna Benedict's case, I do not see any D reason for

compensation. The respondent should demolish his building. I therefore allow this

appeal. I order that the respondent demolish his building and carry away his building

materials within two months from the date of this judgment. If by that date the

respondent has not done so then the materials on the plot will become the property of

the appellant. It is so ordered. This appeal E is therefore allowed with costs.

Appeal allowed.

1984 TLR p33

F