Baranyisa v Ally (Civil Appeal No. 40 of 1998) [2000] TZHC 656 (25 April 2000)

470 TANZANIA LAW REPORTS [2001]T.L.R. A interest a disciplinary proceeding within that rule? Disciplinary proceedings are explained in Regulations 37 - 39 of the Civil Service Regulations. Retirement in the public interest does not fall in those regulations. So Regulation 46(1 )(a) of the Civil Service Regulations B does not bar the act of retiring an officer in the public interest by the President and it has no application to such an act at all. As shown, the prohibition in Regulation 46(1 )(a) of the Civil Service Regulations is the only ground the plaintiff relies in challenging c his retirement in the public interest according to his plaint. The regulation having been held to be inapplicable to his case, i.e. to retirements in the public interest, his entire challenge to his retirement collapses. I hold here that the plaintiff has not proved that his retirement in D the public interest by the President was wrongful. I find in respect of issue number 1 of the case therefore in the negative too, against the plaintiff. The claims in paragraphs 6-7 of the plaint hinge on this issue and having determined the issue against the plaintiff, those E claims fail too. In the final result, having determined all the issues of the case against the plaintiff, the suit fails and it is dismissed with cost. F --------------------------------------------------- RASHID BARANYISA v. HUSSEIN ALLY G IN THE HIGH COURT OF TANZANIA ATTABORA (Mwita, J.) H CIVIL APPEAL No. 40 OF 1998 (Appeal from the decision of judgment of Kigoma District Court) Land Law - Right of occupancy granted over land held under customary law - I Whether the right of occupancy extinguishes the title held under customary law.

RASHID BARANYISA v. HUSSEIN ALLY 471 Land Law - Land held under customary law in an area declared a planning A area - Whether holder of land under customary law is automatically rendered a squatter after declaration. Land Law - Revocation of offer - Offer for granted right of occupancy issued

• Whether it can be revoked. Land Law - Revocation of offer - Proper procedure for revocation. Appellant instituted the suit at Kigoma District Court seeking to have respondent evicted from plot number 2 Block B Maheme Trading Centre, Kigoma District. Before C this area was designated a trading centre and surveyed the respondent held land in that area under a deemed right of occupancy. In 1989, the land in Mahembe was surveyed. In August 1989, the appellant applied to the District land allocation authorities for the disputed land, indicating that the land was his. The Allocation Authority accepted p the application and the appellant paid fees in part. Later on, he was issued with a letter of offer. But all this transpired before the District Land Allocation Authorities had visited the area to verify his claim. On the land authorities visiting the disputed area it was discovered that the plot was the respondent ’ s; Land Officer then withdrew the offer to the appellant and issued the letter of offer to the respondent. The appellant sued the respondent in District Court where the suit was dismissed. On Appeal, counsel for the appellant argued that there was double allocation of the plot and that revocation of the letter of offer to the appellant was unlawful as he was not given notice to show cause nor shown cause why the offer was revoked. Held: (i) The mere act of designating the area a trading centre and surveying it did not have the effect of extinguishing the deemed right of occupancy of the respondent over the land and reducing him into a squatter. „ (ii) The purported allocation of the plot to the appellant was ineffectual. (iii) Withdrawal of the letter of offer issued to the appellant was proper. Appeal dismissed Cases referred to: (1) Mtoro Bin Mwamba v. Attorney General [1953] 2 T.L.R. 327 (2) Methusela Paul Nyagaswa v. Christopher Mbote Nyirabu [1985] T.L.R j 103

472 TANZANIA LAW REPORTS [2001 ] T.L.R. A (3) Mwatimu Omary and another v. Omari A. Bilali [1997] T.L.R. 9 (4) Attorney General v. Lohay Akonaay and another [1995] T.L.R. 80 (5) Patman Garments Industries Ltd v. Tanzania Manufacturers Ltd [1981] B T.L.R. 303 (6) Suzana Kakubukubu and Two Others v. W.J. Kasubi and another [1988] T.L.R. 119 Statutory provisions referred to: (1) Land Ordinance Chapter 13, sections 2, 6 and 10 (2) The Constitution, article 24 Mr Boaz, for the Appellant D JUDGMENT (Dated 25 April 2000) E Kyando, J.: In 1997 Rashid Baranyisa instituted a suit at Kigoma District Court seeking to have Hussein Ally evicted from plot number 2 Block B Mahembe Trading Centre, Kigoma District. The suit was F dismissed. Dissatisfied by the District Court ’ s decision, Rashid Baranyisa (appellant) has appealed to this court. At the hearing of this appeal the appellant was represented by Mr Boaz, learned advocate. The respondent, though duly served, did not G appear nor was he represented by counsel. The appeal was accordingly heard ex-parte. Briefly stated, the facts are as follows: At the center of the controversy between the parties is ownership of a parcel of land known as plot H number 2 Block B Mahembe Trading Centre, Kigoma District. There is evidence on record to the effect that before the area was designated a trading centre and surveyed, land at Mahembe was being held under customary law; that is deemed rights of occupancy. On 7 March 86 1 the respondent bought the disputed parcel of land from one Wilson

RASHID BARANYISA v. HUSSEIN ALLY Tungiye for TZS. 6 000. It appears that by 1989 land at Mahembe a had been surveyed and residents were advised to apply for granted right of occupancy. On 10 August 1989, the appellant applied to the District land allocation authorities for the disputed land. He indicated that the disputed land was his property. He was issued with letter of b offer no AR/KGV/2421/1/E.M. dated lOAugust 1989. He was required to pay fees amounting to TZS. 254-50. On 24 August 1989 he made part payment amounting to TZS. 105-75. The appellant was issued with the letter of offer before the land authorities had visited the c area to verify his claim. On the land authorities visiting the disputed parcel of land it transpired that the plot was the respondent ’ s property and that the respondent had built a structure on it. On realizing the mistake the land officer by letter number AR/KGV/242 1 /2/EM dated 26 October 1989 withdrew letter of offer dated 10 August 89. The respondent was issued with letter of offer number AR/KGV/2421 April EM dated 26 January 1990 in respect of the disputed parcel of land. E Mr Boaz argued strongly that this was a case of double allocation. In his submission the purported revocation of the appellant ’ s letter of offer dated 10 August 9 was unlawful and inoperative because the appellant was not given notice to show cause why the right of F occupancy granted to him should be revoked and no good cause was shown for revocation. In support of his contention Mr Boaz referred this court to the provisions of section 10 of the Land Ordinance, Chapter 113 and the case of Partman Garments Industries Ltd v. Tanzania Manufacturers Ltd (5). Before considering Mr Boaz ’ s arguments, there is one important issue which should be addressed first. It is not in dispute that immediately before the survey of the area and purported allocation of the disputed H parcel of land to the appellant, the said parcel of land was being held by the respondent under customary tenure. It was then a deemed right of occupancy in terms of section 2 of the Land Ordinance. The issue is whether the act of designating the area where such land was situated a trading centre and the land being surveyed with a view

474 TANZANIA LAW REPORTS [2001]T.L.R. A to the granted rights of occupancy over such land had the effect of extinguishing the then deemed rights of occupancy rendering the former owners thereof squatters. In Suzana Kakubukubu and Two Others v. W.J. Kasubi and another n (6) it was held that the payment of compensation in respect of unexhausted improvements to a holder of a deemed right of occupancy extinguishes that right. Section 2 of the Land Ordinance Chapter 113 defines a right of occupancy as follows: “ Right of occupancy ” means a title to the use and occupation of land and includes the title of the native or of a native community lawfully using or D occupying land in accordance with native law and custom. Section 2 of the Land Ordinance as amended by Act Number 28 of 1970 defines the word “ native ” as meaning any person who is citizen of the United Republic and who is not of a European or Asiatic origin E or descent. It is clear, therefore, that customary or deemed rights of occupancy are recognized by the law of this country. In Attorney General v. Lohay Akonaay and Joseph Lohay (4) the Court of Appeal said: F We have been led to the conclusion that customary or deemed rights in land though by their nature are nothing but rights to occupy and use the land, are nevertheless real property protected by the provisions of article 24 of the Constitution. It follows therefore that deprivation of a customary or deemed right of occupancy without fair compensation is prohibited by the Constitution. In Mwalimu Omari and Ahmed Baguo v. Omari A. Bilali (3) the H status of a deemed right of occupancy as compared with a right of occupancy granted under section 6 of the Land Ordinance was made quite clear. In that case the Court of Appeal quoted with approval an extract from Mustafa, J.A. ’ s judgment in Methuselah Paul Nyagwaswa v. Christopher Mbote Nyirabu (2) at page 108 as follows:

RASHID BARANYISA v. HUSSEIN ALLY 475 In my view the law in Tanzania on land and tenure is still developing and A 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 adduced in this appeal, to hold that the right of a holder of a right of occupancy by virtue of customary law is extinguished and he B thereby becomes a squatter on an area being declared a planning area. The Court of Appeal went on to say: ... a holder of right of occupancy under customary law cannot under any circumstances be reduced to a squatter. What is a squatter? By the ordinary dictionary meaning, squatter is a person who settles on new, especially public land, without title, a person who takes un authorized possession of unoccupied premises. Since the title of a holder of a right of occupancy under customary law is recognized by the law of the land, i.e. the Land Ordinance, such a holder does not fit in the above definition of a squatter, his title being protected by statute. Such a title can only be taken away from the holder by an act authorized by a relevant law i.e. the Land Acquisition Act but certainly not by a simple act of declaring an area a planning area. E The Court of Appeal after quoting with approval, Makame, J. A., minority judgment in Nyagwaswa's case (2) said: We therefore think with respect that the provisions of the Land Ordinance f as they are and the forceful exhaustive arguments advanced, were sufficient to enable the court to hold that the right of a holder of a right of occupancy under customary law, cannot be extinguished and turn such a holder into a ‘ squatter ’ upon the area being declared a planning area. q The Court of Appeal said further: We are now in a position to revert to the point of law framed by the High Court and to the grounds of appeal. The point of law as framed by Maina u J. when granting leave to appeal was whether holder of land under customary law in planned area have an inferior title to those who are subsequently allocated. We wish to say with respect that no one can hold land under customary law in planned area. The statement is therefore legally incorrect. We say this in full awareness that Mtoro Bin Mwamba (1) is not a direct I

476 TANZANIA LAW REPORTS [2001JT.L.R. A authority for the proposition that customary law does not apply to urban areas, the main issue in that case being the right of a holder under customary law to register his title under the Land Ordinance. The question of application of customary law in urban areas of the right of holders of land under B customary law in planned or urban areas was not directly answered in Nyagwaswa (2). But we want to say now that customary law cannot apply in urban area for the very good reason that a deemed right of occupancy is not compulsorily registrable whereas in urban areas all titles to land C must be registered. This is necessary for the smooth urban planning. Therefore if the learned judge was referring to the legal status of those holding land under customary law after the area is declared a planning area in relation to those who are subsequently granted the same land, the answer as we P have already stated is that a deemed right of occupancy is equal to the granted right of occupancy under the Land Ordinance hence none takes precedence over the other. Therefore all that the holders of a deemed right of occupancy need do is to convert these into granted right of occupancy by having their holdings surveyed and title deeds issued to them. E The above authorities make it quite clear that the deemed right of occupancy is recognized by the laws of this county and is property protected by article 24 of the Constitution. The right of a holder of F a right of occupancy under customary law cannot be extinguished and the holder thereof turned into a squatter upon the area where the said land is situated being declared a planning area. A deemed right of occupancy is equal to a granted right of occupancy and none takes precedence over the other. Nevertheless no person can hold land under customary law in a planned area. All that holders of deemed right of occupancy need do, when the area where their deemed right of occupancy are situated are declared a planning area, is to convert their rights into granted right of occupancy by having their holdings H surveyed and title deeds issued to them. It follows, therefore, that the mere act of designating Mahembe area a trading centre and having the land situated there surveyed with j a view to offering granted rights of occupancy did not have the effect of extinguishing the deemed right of occupancy situated there and

RASHID BARANYISA v. HUSSEIN ALLY 477 reducing the holders thereof into squatters. All that they had to do a was to apply for granted rights of occupancy in respect of their holdings. The purported allocation of plot no 2 Block B Mahembe Trading Centre to the appellant was ineffectual. The plot was not available for allocation to any other person but to the holder of a deemed b right occupancy over the area. In fact the allocation was done by mistake, a mistake induced by the appellant ’ s misrepresentation. Having represented himself as the owner of the disputed parcel of land, the Land Officer issued the appellant with the letter of offer believing c him to be the holder of a deemed right of occupancy who was applying to convert his right to a granted right of occupancy. It transpired that he had no deemed right of occupancy to convert into a granted right of occupancy. Withdrawal of letter of offer dated 10 August 1989 was a proper action to take. As the allocation was ineffectual, there was no need to require the appellant to show cause why the letter of offer should not be withdrawn. The subsequent allocation of the plot to the respondent did not constitute double allocation as the respondent merely converted his deemed right of occupancy to E a granted right of occupancy. The appeal is accordingly dismissed. As the respondent did not appear at the hearing of this appeal there will be no order as to costs F