Court name
High Court of Tanzania

Rajabu Hassara vs Saraya Rashid () [1983] TZHC 17 (26 May 1983);

Law report citations
1983 TLR 111 (TZHC)
Media neutral citation
[1983] TZHC 17

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

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

   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

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

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 non-compliance 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

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

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.

D