Joshua Shija Kisendi vs Paulo Katoto & Another [1987] TZHC 16 (26 June 1987)


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

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.

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

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 re-enter 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.


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