Rajabu Hassara v Saraya Rashid 1983 Tlr 111 (Hc)

RAJABU HASSARA v SARAYA RASHID 1983 TLR 111 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Ruhumbika J

May 26, 1983

CIVIL APPEAL 21 OF 1981 E

Flynote

Land Law- Revocation of Right of Occupancy - "Good cause" - Whether notice to

show cause necessary.

Land Law - Assessment/valuation of development on land - Compensation - Right to

be F heard about the expenses incurred.

-Headnote

This appeal involves the disputed right of occupancy in respect of a plot codified as

PLOT NO. 274 EX-DAYA ESTATE in Ilala District in the City of Dar es Salaam. The

appellant was offered the right of Occupancy in respect of the said plot in 1968. The

G Right of Occupancy was eventually revoked by the President for alleged noncompliance

with the conditions stipulated in the Right of Occupancy in question. The

crux of the appeal is whether or not there had been "good cause" for the revocation of

H the Right of Occupancy, following which the said plot was reallocated to the

respondent.

Held: (i) The President in being moved to revoke the Right of Occupancy is not

legally required to cause the Land Office to show cause why the right should not be

revoked; however, the court I

1983 TLR p112

RUHUMBIKA J

is quite au fait of the fact that it has inherent powers to look into the grounds upon A

which the revocation was based, to be able to rule whether or not these grounds

constituted "good cause" for the Land Office to move the President to revoke the

right;

(ii) non-compliance with the conditions stipulated in the Right of Occupancy

B constitutes "good cause" for the right to be revoked;

(iii) the court finds it equitable for the appellant to be heard on the expenses

incurred on the land for the purposes of reaching an assessment of the compensation

for the development or improvements on the land.

Case Information

Order accordingly. C

Cases referred to:

1. Director of Lands and Mines v Sohan Singh [1952] 1. T.L.R. (R) 631 D

2. Premchand Nathu and Co. Ltd. v Land Officer [1962] E.A. 738.

L.S. Ballonzi for the appellant

M. Marando for the respondent E

[zJDz]Judgment

Ruhumbika, J.: This is an interesting appeal, involving the disputed right of

occupancy (or title) in respect of a plot codified as PLOT NO. 274 EX-DAYA ESTATE

in Ilala District in the City of Dar es Salaam. F

The crux of the appeal is whether or not there had been "good cause" for the

renovation of the Right of Occupancy of the appellant, following which revocation

the said plot was re-allocated to the respondent, Saraiya Rashidi, by the District Land

Development G Officer, presumably of Ilala District, who testified before the lower

Court as PW. 2.

The appellant, Rajabu Hassara, was offered the Right of Occupancy in respect of the

plot described supra as far back as 1968, and he was in that respect the first occupier

of the land comprising that plot. The Right of Occupancy of this appellant was

eventually H revoked by the President, who was moved by the Land Officer to

revoke the title for non-compliance with the conditions stipulated in the Right of

Occupancy in question. According to the evidence, the District Land Development

Officer described the Right of Occupancy granted to the appellant as a "short-term"

Right of Occupancy renewable I year after year, and went on to explain that it is one

of the

1983 TLR p113

RUHUMBIKA J

conditions stipulated in the right of Occupancy that "the President may revoke the

right A for good cause".

The respondent in this appeal, Saraiya Rashidi, had instituted a suit against the

appellant, Rajabu Hassara, in the Resident Magistrate's Court at Kisutu, in Civil Case

No. 321 of 1977, in respect of the disputed plot. There was a full hearing of the suit,

and B the District Land Development Officer was called as a witness to testify for the

plaintiff in respect of what went on and what had activated the Land Office to move

the President to revoke the Right of Occupancy of the first occupier, that is the

appellant before this court. The Lower Court was satisfied that there was "good cause"

for the C revocation of the right, and following that finding the lower court decreed

for the plaintiff, the respondent before this court.

The lower court decreed that the defendant before that court (who is the appellant

Rajabu Hassara) should remove all the materials he had put on the disputed plot,

except the foundation, which had been paid for by the plaintiff, i.e. the respondent

before this D court, and that such demolition should be carried out within three

weeks to enable the plaintiff erect a building onto the plot through a loan procured

from the Tanzania Housing Bank, and further that the demolition should be at the

expense of the defendant (i.e. the appellant). E

The defendant before the lower court was not satisfied with the decision of that court

and decided to appeal to the High Court.

During the hearing of the appeal both the appellant (Rajabu Hassara) and the

respondent (Saraiya Rashidi) were represented by learned counsel. Mr. Ballonzi,

learned Advocate, F represented the appellant and Mr. Marando, learned

Corporation Counsel from the Tanzania Legal corporation, represented the

respondent. The appeal was well argued by both counsel. Mr. Ballonzi, for the

appellant set out four main grounds of appeal in the memorandum of appeal. G

1. That the learned Principal Resident Magistrate erred in law and on the

facts in determining that the appellant's title to the suit premises (sic) had been

properly revoked.

2. That the learned Principal Resident Magistrate erred in law and on the

facts in H finding that the respondent had a valid Right of Occupancy to the suit

premises (sic).

3. That the learned Principal Resident Magistrate erred in law and on

facts in finding that the appellant was not entitled to build a house to completion on

the suit premises (sic). I

1983 TLR p114

RUHUMBIKA J

4. The learned Principal Resident Magistrate abdicated his judicial

responsibility A by refusing and or neglecting to assess the value of exhausted

improvements on the suit premises (sic).

The learned counsel for the appellant conceded during the hearing of the appeal that

the B notice of the revocation of the right in respect of the appellant was published

in the official Gazette on 26/5/76, and that the plot was eventually re-allocated to the

respondent on 29/12/76. The same counsel further conceded that although there was

no statutory requirement that the occupier has to be notified of the intention to

revoke the C title, it has been held that it was necessary to notify the occupier (in

this case the appellant) of the intention to revoke the right (or title), otherwise the

revocation would be null and void, relying on the decision in the case of Director of

Lands and Mines v Sohan Singh [1952] 1 TLR(R) 631, at p. 635, where the very

passage by Abernathy, D J. was approved in the case of Prem Chand Nathu and Co.

Ltd. v Land Officer [1962] E.A. 738 at p. 745. The learned counsel went on to argue

that if the appellant was given the opportunity to show cause why the right should

not be revoked he could have shown to the Land Office that he was constructing the

house and that the right E could not have been revoked. Since the appellant was not

given that opportunity, then the revocation is null and void, and the Land Office had

nothing to re-allocate to the respondent.

Mr Marando for the respondent vehemently argued that the revocation was proper,

and F that after the revocation the appellant had no title to the land comprising the

disputed plot any more. He submitted that the appellant was allocated the plot under

a short-term Right of Occupancy in 1968, but because the appellant failed to comply

with the conditions of developing the said land, the Right of Occupancy had to be

eventually G revoked. Relying on the evidence of the District Land Development

Officer (PW.2) who testified before the lower court, the occupier (i.e. the appellant)

was supposed to erect a building of the standard approved by the City Council within

one year. But than up to 1976 the appellant had not even submitted the building plans

to be approved by the City H Council, nor had he sent such plans to the land

Registry for noting of the approval. According to the land Officer, Mr. Marando

argued, the house was to be completed for occupation in 1969, but for about 8 years,

the appellant had not been able to complete the building, thereby failing to comply

with the conditions stipulated in the Right of I Occupancy, which state of affairs

constituted "good cause" for revocation. Mr

1983 TLR p115

RUHUMBIKA J

Marando went on to distinguish the two notices involved in the arguments of this

appeal. A He agreed that whenever "good cause" arises for the revocation, the

occupier is served with the notice of revocation, which is eventually published in the

Official Gazette. He then contended that the notice of the revocation was served on

the appellant through his postal address, and latter it was published in the Official

Gazette as General Notice B No 384 of 1976 published on the 26th March, 1976. The

learned counsel for the appellant did not dispute these facts.

Mr. Marando went on to argue that the other notice involved in the argument on the

part C of the appellant, which appears to be precedent to the revocation of the right,

is not a legal requirement; that is say there is no legal requirement for the President to

serve the occupier with notice to show cause as to why the right should not be

revoked. The kind of notice that the occupier is served with, is only to inform him of

the revocation decision, after such a decision had been reached where there is "good

cause" for such a D revocation, and that is when the Land Office would move the

President under the law to revoke the right. The learned counsel for the respondent

went on to argue that after all the legal formalities were complied with, the Land

Office re-allocated the vacant plot to E the respondent through a letter produced as

exhibit "D" in the lower court. The respondent proceeded and obtained a Certificate

of Title (or Right of Occupancy) on that plot -No. 186205/47 in the name of

SARAIYA RASHID. The land Office at Ilala by the time of revocation called in the

Valuer from the Ministry of Lands, who made the F valuation of the foundation and

put it at the value of Shs. 6,000/=, and the appellant was notified that and asked to go

for the compensation. However, it is further contended by the respondent's side that

the appellant never paid heed to the revocation order and as such continued to build

hurriedly onto the foundation he had laid. This prompted the G respondent to go

and complain to the Land Office at Ilala, and the appellant was sent a letter (exhibit

"F") to inform him that the said plot no longer belonged to him, but he would not

care. On 23/6/1977 a court injunction was served against the appellant through an

affixation on the plot, and the appellant, according to Mr. Marando, accepted H to

have seen the injunction, despite which fact the appellant continued to build on the

plot, the conduct which amounted to trespassing on the land of the respondent. Mr.

Marando sought to distinguish the case of the Director of Lands v Sohan Singh cited

by the learned counsel for the appellant from the present appeal before this court. He

I argued that in that case an extension of

1983 TLR p116

RUHUMBIKA J

time within which to complete the work had been granted, and that extended time

had A not elapsed, but the officer of the Crown simply anticipated that the party

would not complete the works and revoked the right without having inquired into

whether or not the party would complete the building in time. Learned counsel for

the respondent went on to argue that was a particular case, and that its particularity

was confirmed in the B second case cited by the learned counsel for the appellant

that is that case of Prem Chand Nathu and Co. Ltd. v Land Officer, and that if

anything what was held was that the giving of notice to show cause was not

mandatory upon the Crown, and that their Lordships in the Privy Council stated that

Abernathy, J. was correct only in the C circumstances of the case before him, i.e in

reference to the need to serve a party with the notice to show cause why the right

should not be revoked.

This court agrees with the contention of the learned counsel for the respondent that

the D President in being moved to revoke the right of Occupancy of the appellant

was not legally required to cause the Land Office to serve the appellant with notice to

show cause why the right should not be revoked. However, the court is quite au fait

of the fact that the court has inherent powers to look into the grounds upon which

the E revocation was based, and to be able to rule whether or not these grounds

constituted "good cause" for the Land Office to move the President to revoke the

right. In this appeal before court, it has been proved, according to the evidence on

record, that the appellant was not able to construct and complete the building within

the period of time F which was stipulated in the Right of Occupancy offered to him

for the development of the plot in question. This clearly indicates that the appellant

failed to comply with the stipulated conditions in the Right of Occupancy, and noncompliance

with such conditions constitutes "good cause" for the right to be revoked.

There is no record to G show that the appellant had approached the Land Office for

the extension of time within which to complete the building, but it appears that as

long as he had put up a foundation on the plot, the appellant thought that he could

keep the plot at that stage of development indefinitely.

Let it be clearly understood here that the Land Office is responsible for the

development H of the surveyed (alienated land) plots of which the Rights of

Occupancy are offered to the occupiers, and they have therefore a statutory duty to

see that the occupiers have to develop their plots according to the conditions agreed

upon by the occupier when the Right of Occupancy is offered to such an occupier

who signifies the acceptance of those I conditions by signing

1983 TLR p117

RUHUMBIKA J

on the Right of Occupancy, after having read and understood those conditions. The

A court is aware that some of the documents used by the Land Office are still written

in English, but nevertheless the appellant could not have been debarred from

understanding that he was supposed to complete the building within one year, i,e, in

1969, but up to the time of revoking the right in 1976 there was nothing more on the

plot except the B foundation. This fact that there was just the foundation when the

right was revoked is also reflected in the submission of the learned counsel for the

appellant where he said: "On the admission of the respondent she found a foundation

on the disputed plot. Apparently, the Land Office sent a Valuer to value the

foundation and arrived at a figure C of shs 6,000/= a figure which was notified to the

respondent but not to the appellant.

After having carefully considered the grounds of appeal as set out in the

memorandum, and after having analysed all the arguments of both the learned

counsel, this court is fully convinced that the Land Office decided to move the

President to revoke the appellant's D right for "good case" as contemplated by the

land law governing the Right of Occupancy offered to the appellant. There is no

injustice caused to the appellant in the revocation, but the appellant should hold

himself to blame for whatever loss he might have incurred in the demolition of

whatever structure he erected on the foundation after E the revocation order and

after an injunction order of the court to stop him from continuing with the

construction. This then disposes of the first three grounds of appeal. The decision of

this court to make it clear is that the revocation order was proper and made for "good

cause", and could not therefore be declared by this court to be null and F void. There

is no basis for this court to upset the decision of the lower court or to have the

revocation order nullifed.

As for the fourth ground, that is concerning the assessment of the compensation to

the appellant which was done by the Valuer, this court accepts the argument for the

G appellant that the assessment was rather arbitrary because the appellant was not

given the opportunity to show what he had incurred in respect of the foundation

erected on the plot. The court finds it equitable for the appellant to be heard on the

expenses he incurred regarding that foundation. This court therefore finds that this

matter should be left H open for the lower court which heard the suit to go into in

detail. The lower court will have to hear the Valuer who did the valuation exercise,

hear the appellant and any other evidence that the appellant may have to prove that

he spent more than shs. 6,000/= on the foundation. The lower court will then

determine the assessment after having I

1983 TLR p118

heard all the necessary evidence, or after having had the opportunity to see the A

documents by way of receipts, or otherwise, which will prove that the appellant spent

more than shs. 6,000/= on the foundation. That will then dispose of the second part

of the appeal.

Apart from that order to remit the record to the lower court for proper determination

of B the assessment of the shs. 6,000/= compensation disputed by the appellant, the

appeal is otherwise dismissed with costs.

C Appeal dismissed.

1983 TLR p118

D