Jayantilal P. Rajan v City Council of Dar es Salaam 1983 TLR 385 (HC)

 

JAYANTILAL P. RAJAN v CITY COUNCIL OF DAR ES SALAAM 1983 TLR 385 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mnzavas JK

August 3, 1985

CIVIL CASE 40 OF 1982 E

Flynote

Land Law - Allocation of land - Land allocated and then complaint by another that it was directly in front of his house - Whether Ministry of Lands has power to order plot to be divided between the two by way of rectification of Land Register - S.99 Land Registration F Ordinance, Cap. 334.

Land Law - Public land - Allocation to another person - Whether prescriptive title can be acquired against the Government - S. 3(1) Land Ordinance Cap. 113.

-Headnote

The plaintiff had been granted a right of occupancy on a plot of land at Sea View, Dar es Salaam in 1979. His neighbour complained to the Principal Secretary, Ministry of Lands, Housing and Urban Development that the plaintiff had been offered land which was in front of his house. The plaintiff was stopped from developing the land pending investigations. After investigations, the Ministry ruled that the allocation of the plot to the plaintiff was in order and consequently, the order stopping him from developing it was lifted. The plaintiff and his neighbour were subsequently ordered by the Director of Land Development Services to submit their certificates of occupancy so that a Deed of I variations could be prepared to split the plot between the two. In consequence, the defendant ordered the plaintiff to stop developing the land and started re-surveying it with a view to splitting it up. The plaintiff filed a suit against the defendant seeking a declaration that he was the rightful owner of the said plot.

Held: '

(i) No person can acquire a prescriptive right over land against the Government;

(ii) there was no error or omission in the land register; nor mistake or any sufficient cause to justify rectification of the land register under section 99 (1)(f) of the Land Registration Ordinance Cap. 334.

Case Information

Judgment for the plaintiff. C

Case referred to:

1. Re: Chowood's Registered Land [1933] Ch. 574.

M. Raithatha for the plaintiff D

Ihema for the defendant.

[zJDz]Judgment

Mnzavas, J.K.: The plaintiff Jayantilal P. Rajan was granted right of occupancy on Plot Nos. 2361/4 and 2432/4, Sea View, Dar es Salaam in 1979 as per letter of offer dated 9/6/79 - Exhibit P 1. In 1981 plaintiff's neighbour one, Narendra Patel complained to the Principal Secretary, Ministry of Lands Housing and Urban Development that the plaintiff had been offered land which is in front of his (complainant's) house.

As a result of this complaint by Mr. Patel the Principal Secretary wrote to the City Director (Exhibit P.7) ordering him to stop the plaintiff from developing the land pending investigations. The plaintiff was accordingly stopped from developing the land pending investigations regarding Patel's complaint. Investigations were made and concluded and the Principal Secretary wrote to Mr. Rajan (Letter No. L.D. 91419/26 of 29/7/81 - G exhibit P8 saying inter alia ..." I have now understood your case and I am satisfied that you followed all the set procedures and you acquired the parcel of land in accordance with the regulations set by the law pertaining to land.

I wish therefore to confirm that you have a clear right over Plot No. 2361/4, CT. No. 186056/33, and you can continue with your development plans over this plot. I would like to end by thanking you for your co-operation in this matter".

Despite this letter (Exhibit P8) in March, 1982 the Director of Land Development Services wrote a letter - (Exhibit P14) to both the plaintiff and Mr. Patel asking them to submit to the land office their certificates of right of occupancy so that a Deed of Variations of rights of Occupancy could be prepared. The City Council, the defendant, stopped the plaintiff from developing the land and started re-surveying the land with a view to split it up.

This prompted the plaintiff to come to Court and is now seeking that he be declared the rightful owner or the disputed plot. The plaintiff also asks the Court to restrain the defendant, the City Council, from dividing the plot.

The defendant argued that despite the grant of right of occupancy over the disputed plot granted to the plaintiff the matter was reviewed by the Ministry and that it was finally ordered that the plot be divided so that the plaintiff gets the parcel of land behind his house and Patel gets the other parcel of land behind his house. In support of the defendant's case five witnesses gave evidence. Husson Mwamakula, (DW1), the local cell leader told the court how he tried to resolve the dispute between the parties over the land. According to his testimony both the cell-meeting and a ward meeting (which later also heard the dispute) resolved that the area be divided between Patel and Rajan. Mr. Patel, (DW2) the complainant told the court that the disputed piece of land is behind his house. He said that after Mr. Rajan, the plaintiff, had acquired right of occupancy over the disputed land he (Patel) complained to the Ministry Lands and that after E investigations the Ministry ordered that the land be divided so that he, Patel, gets the parcel of land immediately behind his house and the plaintiff remains with the land behind his house. Mr. Patel and Mr. Rajan are apparently close neighbours and their houses are adjacent each other.

Granvil Mayao (DW3), a City planner, told the court how the disputed plot was granted to the plaintiff and how later the Ministry found that there was a misallocation of the plot to the plaintiff and decided to rectify the error by dividing the parcel of land between the parties. Mr. Mustapha Nyang'anyi who was, at the material time, Minister of Lands Housing and Urban Development - (DW4) testified to the Court how he dealt with the dispute between Rajan and Patel and how he inspected the disputed piece of land accompanied by his Principal Secretary and his Director of Land Development Services.

According to his evidence they discovered that it was an a error by the City Council to grant the whole plot to Rajan. Thereupon, according to his testimony, the Ministry recommended that the error be rectified as Mr. Rajan had applied for grant of right of occupancy of the plot behind his house only.

The Court also heard evidence from the Acting Director for Lands, (DW5), who told the court that the disputed land was granted to the plaintiff but that after complaints by Patel the Ministry decided that the disputed plot be A divided between Patel and Rajan. In his submission Mr. Ihema, learned counsel for the defendant argued that the Ministry had power to order that the disputed plot be divided between the parties by way of rectification of the Land Register as provided under section 99 of the Land Registration B Ordinance, Cap. 334.

It was submitted that the Ministry took the decision to divide the disputed land between the parties because it was argued, Mr. Patel had a prescriptive right over the piece of land behind his house. In support of this argument the learned counsel referred the court to the decision in Re-Chowood's Registered Land (1933) Ch. 574.

It was argued that the existence of a title per se is not a ground for not effecting rectification under section 99 of the Land Registration Ordinance where there are grounds calling for such action. In the present case the learned counsel argued that the decision to divide the plot came after the Minister had made exhaustive investigations and became satisfied that the ends of justice demanded such action.

In the alternative Mr. Ihema argued that the defendant, the City Council, merely complied with the decision of the Government and that as such, it was submitted, the suit E against the City Council was misconceived. The learned counsel asked the Court to dismiss the suit as incompetent.

In rebuttal Mr. Raithatha, learned counsel for the plaintiff argued that before the plaintiff acquired title over the land, the disputed land was public land. In support of this argument the Court was referred to sections 3 and 4 of the Land Ordinance, Cap. 113. It was submitted that no person can acquire prescriptive rights over land against the Government. It was argued that the President had power to grant the land to Rajan the plaintiff.

As for the case quoted by the learned defence counsel it was Mr. Raithatha's argument that the case dealt with Land Law in England which it was submitted was different from our land law. It was Raithatha's submission that at the time the Government granted the disputed plot the land was public land and that the President had power to grant the land to the plaintiff.

It was argued that after the grant was made to the plaintiff Mrs Patel complained to the land officer in 1980 and that after investigation the Principal Secretary wrote a letter (P9) to her to the effect that she had no right over the land. It was argued that there was no mistake regarding the extent or the location of the disputed land before it was allocated I to the plaintiff.

As for the provisions of section 99(1)(f) it was argued that the section concerns mistakes A in the register and that it does not apply on the facts of this case. There has never been a dispute that the disputed plot was lawfully granted to the plaintiff who in confirmation of the grant was eventually issued with a certificate of title N. 186056/33. That the plaintiff is the legal owner of the disputed plot is also evident from B no lesser a person than the Principal Secretary to the Ministry of Land, Housing and Urban Development - Exhibit P.8. And what is more there is the letter by the defendant himself - (exhibit P.11) addressed to the plaintiff telling him to proceed with development C of the land as he was the rightful owner of the land. Exhibits P. 12, P. 13 and P. 16 are also to the same effect.

When the City planner, (DW3), was cross-examined regarding Exhibit P.11 he said inter alia:

.... Yes at that stage I was of the view that the Ministry had reached a conclusive decision that D the plot was legally allocated to Rajan.

On being cross-examined as to whether the City Council, the defendant, knew the extent and location of the disputed plot before it was granted to the plaintiff the City planner, (DW3), replied .... "Yes, the City authorities knew where the disputed plot was E situated". The evidence of the Director for Lands, DW 5, also supports the plaintiff's case that the plaintiff is the lawful owner of the disputed plot.

In his minute - m6 (in exhibit D6) the Minister, (DW4), categorically told his Principal Secretary that the plaintiff was the owner of the plot. This was apparently after Patel had complained to the Ministry regarding the plot. In the minute, (M6), the Minister emphasized that the Party at District and Regional levels, the City Council and the Prime Minister's office had dealt with the matter and that all of them were satisfied that the disputed plot belonged to Rajan, the plaintiff. This was in April, 1981. G

That the same Principal Secretary and the same Minister should make an about-turn and say exactly the opposite of what they had said four months earlier is, to say the least, beyond my comprehension. In F.27 (exhibit D.6) the Director for Land Development Services told the City Director that a mistake had been made by the Ministry of Lands in H granting the disputed piece of land to the plaintiff, Mr. Rajan, and that the Minister had ordered that the mistake be corrected under section 99 of the Land Registration Ordinance, Cap. 334, so that the disputed piece of land be allocated to Mr. Patel.

Indeed, and as I have already mentioned above, Mr. Ihema, learned counsel for the I defendant argued that the Ministry had power under section 99 to make a rectification to the effect that the land granted to the plaintiff be divided so A that Mr. Patel gets the plot behind his house.

The argument by Mr. Ihema for the defendant is interesting but, with respect to the learned counsel, not legally convincing. There is no dispute that before the land in dispute was allocated to the plaintiff, the land belonged to the Government. In other words the land was public land under section 3(1) of the Land Ordinance, Cap. 113. And as the learned defence counsel will no doubt agree on reflection no person under our law can acquire a prescriptive right over land against the Government. That this is law is amply brought out by section 4 of the Land Ordinance, Cap. 113 of the laws.

That being the position the argument by the defence that Mr. Patel had a prescriptive right over the land against the Government has no leg to stand on. As for the argument that the Ministry of Lands had power to make rectification of the title under section 99(f) of Cap. 334.

The section says:

Subject to any express provisions of this Ordinance, the land register may be rectified pursuant to an order of the High Court or by the Registrar, subject to an appeal to the High Court in any of the following cases".

(a) .....

(b) .....

(c) ..... 

(d) .....

(e) .....

(f) in any other case, where by reason of any error or omission in the land register or by reason of any memorial made under a mistake or for other sufficient cause it may be deemed  just to rectify the land register.

The evidence does not show that there was an error or omission in the land register; nor does the evidence show that there was a mistake or any sufficient cause to justify rectification of the land register so that Mr. Patel gets part of the disputed piece of land.

On the contrary, and as I have already stated above, both the city planner, (DW3), and the Director for Lands, (DW4), told the Court that the defendant knew the extent and location of the disputed plot before he allocated it to the plaintiff. He cannot therefore I be heard to say that the land register should be rectified under section 99(1)(f) of Cap. 334.

As for the English decision quoted by the learned defence Counsel, I have had the A opportunity to read the case and I agree with the learned counsel for the plaintiff that the decision has no relevance on the facts of the present case.

As for Mr. Ihema's argument that the defendant merely complied with the order of the Ministry of Lands and that the plaintiff had sued the wrong person, this argument is brought up for the first time. It is not part of the pleadings. On the contrary the defendant argues in his written statement of defence that in entering the premises he was complying with his supervisor's lawful order. On the evidence the defendant was properly sued.

Having heard all the evidence I am satisfied that the plaintiff is the lawful owner of the disputed property -Plot No. 2361/4 and 2432/4 at Sea View, Dar es Salaam. The evidence amply shows that the plaintiff was lawfully granted right of occupancy over the land as per letter of offer dated 9/6/79 - Exhibit P1. D Judgment is accordingly entered in favour of the plaintiff with costs which are to be taxed.

Judgment for the plaintiff

1983 TLR p391

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