Court name
High Court of Tanzania

Salum Juma Mzeru vs Omari Ubaya () [1985] TZHC 3 (21 February 1985);

Law report citations
1984 TLR 31 (TZHC)
Media neutral citation
[1985] TZHC 3
Coram
Bahati, J.

Bahati, J.: The issue in this appeal is whether the respondent should be compensated for the   I building he constructed on the plot of land belonging to the appellant. The

appellant has argued that the respondent is not entitled to any compensation because the  A respondent was building on another person's land without even a building permit and he had to be stopped from doing so by arresting his workmen on the plot. Mr. Omari learned counsel for the appellant cited the cases of Conway v Whimpy [1951] 2 KB 266 and Civil Appeal No. 41 of 1976 Anna  B Benedict v Mrishowhich is a court of Appeal Case. He also cited my recent decision in the case of Christopher Nyirabu v M.P. Nyagwaswa which is Civil Case No. 61 of 1980 in support of his argument. He concluded by submitting that even the respondent did not ask for any compensation for his building and as such it was wrong for the learned Magistrate to order such compensation. C
In reply, the respondent said that he was asking for compensation because he did not know that the plot on which he was building had an owner and that he had his letter of offer for the same plot. Since he had spent money on that plot and since he was not to blame for the mistake of giving him  D an offer for that plot, he was entitled to compensation.
In a short reply Mr. Omari submitted that the respondent had filed a written reply to the appellant's memorandum of appeal. In that written reply the respondent was saying that he knew that the land in  Equestion was of someone else and that he made the constructions amidst objections by the appellant. Mr. Omari asked the order for compensation to be set aside.
This appeal can be disposed of on the authority of Civil Appeal No. 41 of 1976 Anna Benedict v Mrisho. In that case a committee purported to allocate the plot already allocated to the appellant  F (Anna) to the respondent (Mrisho). After allocation Mrisho began constructing a building on the plot. Anna saw this and filed a suit in the Resident Magistrate Court claiming ownership of the land in question. The resident Magistrate's court held that the land belonged to Anna and that Mrisho  G should vacate it. But the Resident Magistrate's Court ordered that Anna should pay compensation to Mrisho for the improvement he had put on the land. It should be remembered that Mrisho went on to build on the land even after he had got notice that the land was in dispute. On a final appeal to the  H Court of Appeal for East Africa the Court agreed with the High Court that a party should not reap the benefits of the improvements to the land effected by the opposing party without paying for such benefit and compensating the opposite party for this expenditure in so improving the value of land. But this principle of "unjust enrichment", as the court put it, did not apply in that case because  I

  A the court did not find it equitable to force Anna take up a building which she might not have wanted to build in such a fashion since she might want to build a less expensive building altogether. The Court found that the most reasonable thing to do was to order Mrisho to demolish his building   B and take away all his material within a certain period. Failing to do so within that period all the material on the land would become the property of Anna.
I notice that the learned trial Magistrate in our present case referred to the case of Anna Benedict v Sefu Mrisho but unfortunately he was not aware that there was a court of Appeal decision in that   C case which set aside the order of compensation as I have shown above. Our present case is on all fours with Anna Benedict's case. Like the Court of Appel in Anna Benedict's case, I do not see any   D reason for compensation. The respondent should demolish his building. I therefore allow this appeal. I order that the respondent demolish his building and carry away his building materials within two months from the date of this judgment. If by that date the respondent has not done so then the materials on the plot will become the property of the appellant. It is so ordered. This appeal   E is therefore allowed with costs.
Appeal allowed.

F