Court name
Court of Appeal of Tanzania

Metthuselah Paul Nyagwaswa vs Christopher Mbote Nyirabu () [1986] TZCA 11 (30 October 1986);

Law report citations
1985 TLR 103 (TZCA)
Media neutral citation
[1986] TZCA 11
Coram
Mustafa, J.A.

Mustafa, J.A.:  This appeal involves the ownership of a plot of land in Mbezi Beach, Dar es Salaam.  Nyirabu the respondent herein had sued Nyagwaswa D the appellant herein in the High Court (Bahati, J.) for trespass for damages.  The respondent claimed that he was the registered owner of a right of occupancy over Plot 130, Mbezi Beach in the City of Dar es Salaam comprised in Title No. 22549, and that the appellant had trespassed on his plot and had commenced building thereon.  He E prayed for an injunction to restrain the appellant from entering or remaining on the said plot and for damages.
The High Court gave judgment in favour of the respondent with costs.  It found that the respondent was the legal owner of Plot 130, that the right of occupancy issued to the respondent was obtained legally and without fraud, that the appellant had trespassed on F the respondent's plot and that the right of occupancy issued to the respondent extinguished all prior rights and interests of the appellant in the said plot.  It awarded damages to the respondent in the sum of Shs.287,200/=.  From that judgment the appellant is appealing to this Court. G
The appellant had filed additional grounds of appeal with leave.  Similarly the respondent had filed a notice containing other grounds for affirming the decision of the High Court.  There was also a successful application by the respondent for an order for additional evidence to be taken.  This Court took such additional evidence from Fidelis Kilulumo, a H Senior Co-operative Officer in the City Co-operative Office of the City Council of Dar es Salaam.
The following facts are not in dispute.  The respondent applied for a plot of land to the City Council of Dar es Salaam in early 1978 and he got an offer dated 18.7.78.  He followed up the offer and was duly issued with a certificate of Occupancy No. 22549 I over Plot 130, Mbezi Beach,

MUSTAFA JJA, MAKAME JJA, OMAR JJA
for a term of 99 years commencing from 1.7.1978.  This was duly registered on 2nd A December, 1978.  The Certificate of Title contained in its schedule a registered survey plan showing the boundaries of Plot 130.  The respondent obtained a building permit from the City Council of Dar es Salaam.  However before the respondent could build the appellant entered the said plot claiming ownership and commenced to build thereon B despite objections from the respondent.  The respondent obtained a temporary court injunction and eventually the appellant ceased erection.  A part of the appellant's building stands on about 79 sq. metres of Plot 130.
The appellant had purchased a piece of land for Shs.11,000/= from one Vincent Patrick C on or about 1.4.78 in Mbezi Beach.  That piece of land was unsurveyed and allegedly included the land forming Plot 130.  The appellant's title to the land consisted only of the informal agreement to purchase from Patrick and nothing else.  The said sale was  witnessed by the C.C.M. Branch Chairman at Kawe. The appellant was building the D foundation of his house when the suit against him was filed in the High Court, but now the house is semi-finished.  He disputed that the land he had purchased was within the boundaries or jurisdiction of the City Council of Dar es Salaam.
The additional witness Kilulumo has stated that Mbezi Village was in the Green belt E area, and although within the jurisdiction of the City Council of Dar es Salaam, was a rural as opposed to an urban area, and that the Village and Ujamaa Village Act of 1975, No. 21 of 1975, was designed to register such rural villages.  He was of the decided view that Mbezi Beach was within the jurisdiction of the City Council of Dar es Salaam F and formed part of Mbezi Village which was registered as a village under 1975 Villages and Ujamaa Villages Act on 25.2.1976 and was incorporated on 1.12.76.
The trial judge found that the Mbezi Beach area on which the disputed Plot No. 130 is situated was declared to be planning area by the Ministry of Lands under the provisions G of section 13 of the Town and Country Planning Ordinance Cap. 378.  He referred to G.N. 171 of 1966 which declared Mbezi, among other areas, to be a planning area, and he held that a survey plan of the said area was made by the Ministry of Lands.  I think Prof. Fimbo who appeared for the appellant before us was attempting to question the H location of Plot 130.  On a review of the evidence I am satisfied that Mbezi Beach is within the jurisdiction of the City Council of Dar es Salaam and is a planning area.  I am also satisfied that Plot 130 is situated at Mbezi Beach, which forms part of Mbezi village and that this was the land in dispute between the parties.
The trial judge appeared to have held that once an area has been declared to be a I planning area, customary law concerning land holding

MUSTAFA JJA, MAKAME JJA, OMAR JJA
ceases to apply and a person who has a right of occupancy over a piece of land by A virtue of native law and custom loses that right to a party who obtains a right of occupancy under section 6 of the Land Ordinance Cap. 113 over the same piece of land.  The judge was of the view that such a grant of a right of occupancy in a planning area would extinguish a previous holder's right based on native law and custom.  The B trial judge based his conclusion on a proposition put forward by one Professor James in his book "Land Tenure and Policy in Tanzania".  Following Professor James' view the trial judge held that land in urban areas cannot be acquired other than by direct grant under section 6 of Cap. 113.  He held that once an area is given urban status by being C declared a planning area customary law ceases to apply to land in such an area and the right of a holder of a right of occupancy by virtue of native law and custom is extinguished and the holder becomes a mere squatter.
Prof. Fimbo submitted that the trial judge had erred in adopting the opinion of Professor James.  He stated that the proposition put forward by Professor James was merely an D expression of opinion and has no legal basis.  Prof. Fimbo pointed out that in the Land Ordinance Cap. 113, there are two types of rights of occupancy.  In section 2 of Cap. 113:
   right of occupancy means a title to the use and occupation of land and includes the title of E native or of a native community lawfully using or occupying land in accordance with native law and custom.
One right of occupancy is created by a direct grant of public land by the President in terms of section 6 of Cap. 113, the other one is that of a person holding land in F accordance with native law and custom.  Prof. Fimbo submitted that since the right of occupancy by virtue of native law and custom over the disputed land subsisted prior to the grant of a right of occupancy to the respondent and as there was no evidence adduced that such prior right had been revoked or acquired under the Land Acquisition G Act. No. 47 of 1967, the grant of a right of occupancy of the plot to the respondent in terms of section 6 of the Land Ordinance Cap. 113 was ineffectual since the President had no capacity or right to contract or grant such land to another person.  Prof. Fimbo referred to Mohamed Nyakioza v Sofia Mussa C.A. 89/71 [1971] H.C.D. n.413 & Nafco v Mulbadaw C.A. 3/85 in support. H
Mr. Mkatte who appeared for the respondent would seem to contend that the trial judge did not hold that the right of a holder of a right of occupancy by virtue of native law and custom is extinguished solely because an area has been declared a planning area.  He I preferred to support the trial judge's decision on another ground.  He however seemed

MUSTAFA JJA, MAKAME JJA, OMAR JJA
to state that a right of occupancy granted in terms of section 6 of the Land Ordinance A Cap. 113 confers a superior and overriding title.
In my view the law in Tanzania on Land and Tenure is still developing and certain areas are unclear and would have to await the necessary legislation.  At any rate I am not prepared, on the rather inconclusive and tenuous arguments advanced in this appeal, to B hold that the right of a holder of a right of occupancy by virtue of native law and custom is extinguished and he thereby becomes a "squatter" on an area being declared a planning area.
Prof. Fimbo submitted that in the High Court, the suit had proceeded on the basis that C Plot 130 was in an urban area, Mr. Kilulumo has testified that Plot 130 was situated in the Green belt, that is, a rural area.  Prof. Fimbo contended that this piece of evidence by Kilulumo has brought in a new element in the case, and cannot be accepted or entertained.  If I understood Prof. Fimbo correctly he was submitting that if plot 130 was D in an urban area then the provisions of the Town and Country Planning Ordinance Cap. 378 would apply and that in the circumstances, Act 21 of 1975, the Villages and Ujamaa Villages Act 21 of 1975 would not be applicable.  Prof. Fimbo contended that there was an inconsistency and indeed a conflict between the provisions of section 35 of E Cap. 378 and Direction 5 of G.N. 168/75 (Directions made under the provisions of section 23 (4) of Act 21 of 1975).  Prof. Fimbo was of the view that no reference should be made to the provisions of Act 21 of 1975 or to the directions made thereunder in deciding this appeal as Act 21 of 1975 was not at all applicable to the matter in dispute.
In reply Mr. Mkatte has submitted that the suit was filed in respect of a registered piece F of land in Dar es Salaam and the suit had to be tried in the High Court.  That had nothing to do with whether the plot was in an urban or rural area, as rural plots are also registerable.
I am not impressed by Prof. Fimbo's submission on this point.  I see no conflict between G Section 35 of Cap. 378 and Direction  of G.N. 168 of 1975.  Section 35 of Cap. 378 deals with the need of obtaining consent before developing any land within a planning area, whereas Direction 5 of G.N. 168 of 1975 contains provisions for the obtaining of approval for the disposal of land etc. from the Village Council in respect of land of a H registered village.  As I see it, if a registered village is within a planning area, then consent of the City Council to develop land has to be obtained.  That in no way interferes with the need to obtain the other necessary approvals from the Village Council.  I do not see why the provisions of Act 21 of 1975, or the directions made thereunder, if relevant, should not be looked at. I
Reference was made by both Prof. Fimbo and Mr. Mkatte to section

MUSTAFA JJA, MAKAME JJA, OMAR JJA
33 of the Land Registration Ordinance Cap. 334.  Section 33 reads in part: A
   33 (1)   The owner of any estate shall, except in the case of fraud, hold the same free from all estates and interests whatsoever, other than -
      (b)   (not applicable) B
      (c)   The interest of any body in possession of the land whose interest is not registerable under the provision of this Ordinance .... C
It is common ground that the respondent's certificate of occupancy was registered.  Mr. Mkatte also contended that this was a first registration, without fraud.  Mr. Mkatte submitted that section 33 (1) (b) does not help the appellant.  He alleged that there was evidence from which it could be inferred that the appellant's estate in the disputed land D was registerable in terms of Cap. 334.  The evidence, according to Mr. Mkatte, consisted in the value of the building, over Shs.500,000/=, being put up by the appellant, and in the view expressed by the appellant that he "wanted to own the place for as long as I wanted...." Mr. Mkatte submitted that it would follow that the appellant was  putting E up a permanent and substantial building and was contemplating occupation for a term in excess of 5 years and the land was thus registerable.  On the other hand Prof. Fimbo submitted that section 33 (1) (b) refers to "interest" in the land being registerable.  He contended that the appellant's interest in the land which derived from native law and custom, was nowhere stated to be registerable under the provisions of Cap. 334.  In any F event Prof. Fimbo denied that this was a first registration.
I am of opinion that this was not a first registration.  I am also of the view that the interest of the appellant was not compulsorily registerable, and by virtue of section 33 (1) (b) of G Cap. 334 the right of the respondent vis-a-vis the appellant is not indefeasible and unimpeachable in the circumstances.
Mr. Mkatte referred to the additional evidence adduced and to his further grounds for affirming the Court's decision.  He submitted that the sale or purported sale of the land by Patrick to the appellant was void and ineffective and the appellant had not acquired H any interest in or title to the land.  The land is in Mbezi Beach and Mbezi Beach formed part of Mbezi village which was a registered village under the Village and Ujamaa Villages Act No. 21 of 1975.  By G.N. No. 168 of 1975 Directions were made under Act 21 of 1975.  Direction 5 (6) reads: I

   Except with the approval of the village council no person shall A
   (a)   transfer to any other person his right to the use of land in a village; or
   (b)   dispose of his house, whether by sale of otherwise.
Mr. Mkatte submitted that there was no approval obtained from the Village Council for B the sale or transfer of the land to the appellant.  The transfer was therefore void and no interest could have passed from Patrick to the appellant.
It is not disputed that the land was held under a right of occupancy, assuming that C Patrick was the rightful person in possession, under native law and custom.  Although Patrick had not indicated the extent of the land he had purported to sell to the appellant, I will assume for the purpose of this appeal, that the land included the area of Plot 130, or at any rate the portion of 79 sq. metres on Plot 130 on which a part of the appellant's unfinished building stands. D
It is common ground that the President can issue a right of occupancy in terms of section 6 of Cap. 113 to a person.  However the disposition of a right of occupancy is subject to the Land Regulations made under Cap. 113.  Regulation 3 of the Land Regulations 1948 (in Cap. 113 Supplement 64) reads: E
   a disposition of a right of occupancy shall not be operative unless it is in writing and unless and until it is approved by the President.
There is a long line of judicial decisions which established that a disposition of a right of F occupancy without the necessary approval or consent was inoperative, unenforceable and void, see for instance Patel v Lawrenson & another [1957] E.A. 249, Alexander Paterson & another v Kanji [1956] 23 E.A.C.A.106 and Fazal Kassam v A.N. G Kassam [1960]  E.A. 1042. Regulation 3 of 1948 would apply to rights of occupancy issued and granted under the provisions of Cap. 113.
It appears that following the same principle rights to land  held in a registered village can only be transferred with the approval of the Village Council.  And Mr. Mkatte submitted H that the sale by Patrick to the appellant, for lack of approval, was void and of no effect.  The appellant had not acquired any right or title to any land.  There was thus no right to be extinguished.
Prof. Fimbo submitted that the Directions issued under G.N. 168 of 1975 should be read in their context.  He stated that the sub-directions of Direction 5 should be read I together.  I will, for convenience, set out Direction 5 in full:

MUSTAFA JJA, MAKAME JJA, OMAR JJA
   5 (1)   Land for the use of a village shall comprise such areas of land as may be A reserved for the purpose and allocated to the village by the District Development Council.
   (2)   Subject to availability of arable land, the village council shall allot a piece of farmland to every kaya in a the village according to need and ability to develop it.  The village council shall have power to determine the structural B pattern of farms in the village and the use thereof.
   (3)   Subject to an availability of land every kaya shall be entitled to an allotment at least one acre of land for the purpose of building thereon dwelling houses and for other domestic purposes. C
   (4)   Every piece of land allotted to a kaya for its use shall be subject to the overall control of the village council.
   (5)   The village council shall make provision for reserve land for future expansion of the village.
   (6)   Except with the approval of the village council no person shall - D
      (a)   transfer to any other person his right to the use of  land in a village;
      (b)   dispose of his house, whether by sale or otherwise.
   (7)   In the exercise of its powers relating to planning and co-ordination of the activities of residents of the village engaged in agricultural activities the Village E Council shall ensure that every piece of land allotted to a kaya for its use shall at all times be maintained as an economic unit and no fragmentation or other use of similar kind shall be permitted. F
Prof. Fimbo contended that there was no evidence to indicate that Patrick had obtained his piece of land from the Village Council.  Prof. Fimbo asserted that Direction 5, read as whole, would give the Village Council control only over land it had allocated to the kaya or villagers.  He called attention especially to 5(1) and 5 (4) in support of this G contention.  He submitted that if a villager held land in a registered village which was not allocated to him by the Village Council, then such villager or his land is not subject to the control of the Village Council.  Indeed such land would not be subject to any control whatever.  The provisions of Direction 5 (6) therefore would not apply in this case to the sale by Patrick to the appellant. H
In dealing with this point I have to consider the basic and root source from which all title to land in Tanzania is derived.  I refer to sections 3 and 4 of the Land Ordinance Cap. 113. Section 3 (1) reads: I

MUSTAFA JJA, MAKAME JJA, OMAR JJA
   The whole of the lands of Tanganyika, whether occupied or unoccupied on the date of the A commencement of this Ordinance are hereby declared to be public lands.
Section 4 of Cap. 113 declared all public lands to be under the control and subject to B the disposition of the President and that no title to the occupation and use of such lands shall be valid without the consent of the President.
I have already dealt with the control of disposition of land held under a certificate of title granted by the President.  In my view, in a registered village, all the land within it would C be similarly under the control of the Village Council and I do not read Direction 5 as only dealing with land actually allocated to villagers by the Village Council.  I think Direction 5 (6) means exactly what it says, that without the approval of the Village Council, no person shall transfer his land.  I cannot envisage that certain lands and D certain villagers living in a registered village would be exempt from its jurisdiction and control.  That would create an absurd situation.  If there were exemptions, it was easy to have said so in the directions.
Prof. Fimbo also submitted that no approval of the Village Council was obtained for the grant of the land in dispute to the respondent.  True, but I think the directions in G.N. E 168/75 are only concerned with the relationship between the Village Council and its kaya and villagers, and do not concern the superior landlord, an outside authority in the person of the President.  However, should the respondent wish to transfer or dispose of his land, I would think he has to obtain two sets of approval, approval from the Village F Council and approval in terms of Land Regulation 3.
I am of the view that the sale by Patrick to the appellant of the land in Mbezi was void and ineffectual as it took place without the approval of the Village Council.  The appellant had not acquired any right or title in the land which could defeat the title in the G land acquired by the respondent by virtue of the certificate of occupancy issued to him.  There was no extinguishing of the appellant's anterior title to the land; he never had acquired a title to  or interest in the land in dispute.  Indeed the appellant may well think it advisable to take steps to regularise his occupation of the land he had allegedly H purchased from Patrick.
I will now deal with the damages awarded to the respondent.  The trial judge had referred to the difference in the estimated costs of the construction of the proposed building by the respondent for the periods 1978/79 and 1983.  The difference amounted to Shs.287,200/=.  The delay in building was due to the act of the appellant.  The trial I judge accepted the figure as reasonable.

MUSTAFA JJA, MAKAME JJA, OMAR JJA
Prof. Fimbo submitted that there was no evidence that the respondent had taken A possession of the plot and had purchased or was prepared to place building materials thereon for erection purposes.  There was only evidence adduced concerning the cost of construction in the two periods; there was no evidence that the respondent was actually ready willing and able to build in 1978/79.  An approved building plan by itself does not B necessarily mean that the respondent was ready to proceed.
I think that there is merit in Prof. Fimbo's submission.  There should have been evidence that the respondent was ready willing and able to proceed to build, but was prevented from doing so in 1978/79 by the appellant's action.  I think a nominal sum  should have C been given for damages in the circumstances, as I am not satisfied that a sufficient foundation had been laid for the amount claimed.  I would reduce the damages awarded to a nominal sum of Shs.5,000/=.
The trial judge had ordered the demolition of that portion of the building which was built on a part of plot 130.  He ordered the appellant to demolish the said portion and remove D the materials from plot 130 at his own expense by a certain date after which such material, if not removed, would become the respondent's property.
I am satisfied that this is a reasonable order as the appellant had proceeded with the erection even when he knew that the respondent had applied for an injunction.  It E appeared to me that the appellant had  wanted to confront the respondent with a fait accompli.  It was at rather a late stage that the appellant desisted from erection.  The structure is completely useless to the respondent.  The appellant has mostly himself to blame for the loss to him due to this order for demolition. F
In the result the appeal is dismissed, except that the award of damages in the sum of Shs.287,200/= in favour of the respondent is set aside and a sum of Shs.5,000/= is substituted therefor.  The order for costs in the High Court remains undisturbed. G
As for the costs of the appeal, since the appellant has succeeded on the item of damages awarded, I would order each party to bear his own costs.
As Omar, J.A. agrees, there shall be an order on the terms above stated.
H Appeal dismissed
Makame, J.A. (dissenting):  I had the advantage of reading in draft the elaborate judgment of my learned brother, Mustafa, J.A.  I must confess that this appeal has caused me considerable anxiety. I
I have no doubt about the identity and location of the plot in dispute.

It is Plot No. 130 and forms part of the parcel of land which the appellant got from A D.W.2 Vincent Patrick Mmole on 1st April, 1978.  It is the plot in Mbezi Village to which Fidelis Paulo Kilulumo, who gave additional evidence before this Court, was taken by the respondent.
When the respondent was made an offer of the parcel of land in dispute on 18th July, B 1978 the area had already been designated and registered as Mbezi Village, under the Villages and Ujamaa Villages Act, 1975.  The spirit and effect of the Act, and the various regulations made under it, is among other things, to place the land within the jurisdiction of the Village at the disposal of the village and its kayas, under the C administration of the village, for the economic and social transformation and development of the village and its inhabitants.  The State decided that it should be so, and it would defeat the objective of the law if grants over the same land were made, even by superior authorities without consultation, or at the very least knowledge, of the village authorities. D This, I am satisfied, is what happened in the instant case, as is clearly brought out by the testimony of D.W.3 Ally Kibwana, the C.C.M. Branch Chairman of the area and one of the persons who witnessed the transactions between the appellant and Mmole.  There is no evidence that at the time of the said transaction the area had already been E surveyed, infact the Defence evidence is that it had not been.  Once the appellant got the plot, in April, 1978, he contacted the Kinondoni District Land Office for a survey and title, and the same District Land Office turned round and made an offer to the respondent in July, 1978, behind the appellant's back as it were, when it knew that the F appellant was in possession and wanted a title.  According to Kilulumo "The Land Office would not survey a piece of land and allocate it to somebody without involving the Village Council".
According to the evidence, Mole got the piece of land from the local authorities, way G back in 1963.  Mbezi Village found him already there therefore.  His transfer of his customary right over the land was witnessed and sanctioned by the village authorities including the Ward Secretary who affixed his official stamp on the document.  There is also an endorsement to the effect that the Party Office had no objection.  One of the witnesses to the transaction was D.W.3 the C.C.M. Chairman of the Branch in the H Village.  I am unable to agree with Prof. Fimbo that the Village Council was  not necessary in the case of the transaction involving his client.  In my view all land transactions in the village need village council approval.  If I understood Mr. Mkatte for the respondent, and I think I did, he submitted that such approval was necessary and was not obtained.  As already indicated I go along with him on the first part - that I approval was necessary, but I do not share the view that the transaction was void

for lack of such approval.  I look at the realities of the situation.  The Chairman agrees, A the Ward Secretary says there is no objection, and the official stamps are affixed in the presence of witnesses.  Those authorities were acting on behalf of the village and I am satisfied that the sale by Mmole, and the purchase by the appellant, were effective and good in the circumstances.  The transaction was regulated by the authorities and B there is no evidence that the portion of land had at the material time already been alienated from the village.
I am of the view that the respondent's Right of Occupancy was issued in improper circumstances and did nothing to disturb or extinguish the appellant's right. C
I would allow the appeal with costs.
Omar, J.A.:  I have read both the judgment of Mustafa, J.A. and Makame J.A. on this case and I am convinced that the legal arguments in favour of the ownership of the disputed piece of land by the respondent are more cogent than those advanced by the D appellant.  It is not disputed that appellant bought this piece of disputed land (in which plot 130 is also included) from Patrick but did these village functionaries who witnessed the transaction act as Members of Village  Council?  There is evidence that they did not therefore, there was no consent given.  Consent is legal requirement whether it be given Eby the President of the United Republic or by the Village Council.  We cannot say it was necessary but not fatal to the transaction when it was not obtained.  And when the letter of the law is clear and unambiguous on any matter we do not look for its spirit.  Appellant may have wanted to get a normal right of occupancy over the plot he "bought" F from Patrick and he sent his application to the land office much ahead of the respondent but his application was ignored or turned down and the respondent's application was granted.  A number of applications are sent to the Land Office, those which are approved are of the successful applicants and can claim ownership over G surveyed areas; those applications which are not acted upon its owners cannot be heard to say that they were first in applying and, therefore, would go ahead with the development of the land, that would really be naive on their part.
All in all I would uphold the Judgment of Mustafa, J.A. because the law on this subject has been exhaustively discussed by him and he has left no stone unturned in arriving at H the just decision affecting both parties.
I Appeal dismissed

A