Ibambas v Sariyamosha (Civil Appeal No. 54 of 1994) [1998] TZHC 2543 (13 October 1998)

364 TANZANIA LAW REPORTS [1999JT.L.R. JAMES IBAMBAS u FRANCIS SARIYAMOSHA HIGH COURT OF TANZANIA ATMWANZA (Lugakingira, J.) CIVIL APPEAL No. 54 OF 1994 (From the decision of the District Court of Sengerema at Sengerema, in Civil Case No. 13 of 1992, J.K. Mzonge, District Magistrate) Land Law - Customary title to land - Whether customary title to land terminates upon the land being surveyed - Section 2 of the Land Ordinance. Land Law - Acquisition of title to land - Offer of title to land given over land still held under customary law - Effect thereof The respondent applied for and was offered the disputed plot of land in 1985 and issued with a Certificate of Occupancy, and continued to pay rent regularly. In 1990, when he wanted to enter the land he was resisted and thrown out by the appellant who was living there. The trial court found for the respondent, holding that the land was allocated to him lawfully after it was surveyed, and that the appellant had no title since he had already been compensated. According to the evidence the appellant had acquired the land in 1959 and was staying thereon ever since; the land was surveyed in 1984 and the allocation to the respondent was made in 1985; and the compensation for the plot was brought in 1989, four years after the allocation to the respondent. Held: (i) The appellant held a valid customary title over the land from which the disputed plot was created and that title did not terminate on account of the mere act of surveying the land; something more than mere survey was required to extinguish the appellant ’ s title; (ii) Customary title to land can be extinguished by surrender, signified by offer and acceptance of compensation; (iii) Compensation paid to the appellant 4 years after the purported allocation to the respondent could not retrospectively extinguish the appellant ’ s customary title; (iv) Since the customary title was neither surrendered nor extinguished otherwise, it still subsisted when the purported allocation was done and no valid offer could thereby be given to the respondent;

JAMES IBAMBAS v. FRANCIS SARIYAMOSHA 365 (v) The respondent had acquired no title to the land and was a trespasser. A Appeal allowed Case referred to: (1) S. Kakubukubu v. M J Kasubi, Court of Appeal, Civil Appeal Number 14 B of 1991 ( unreported) Mr Magongo, for the Appellant Mr Nasimire, for the Respondent Statutory provision referred to: (1) Land Ordinance, section 2 JUDGMENT d (Dated 13 October 1998) LUGAKINGIRA, J.: This appeal arises from the decision of the e District Court of Sengerema, in a dispute over the ownership of Plot Number 18, Industrial Area, Sengerema Township. The respondent brought action alleging that the appellant had trespassed on the plot and praying for the appellant ’ s ouster and compensation for destroyed F banana plants. The action was successful in all respects save for compensation where the trial magistrate found no evidence of the alleged destruction. Briefly, in 1985 the respondent applied to the Sengerema District g Land Office for an industrial plot. He was offered the disputed plot by a letter dated 30 April 1985. He paid the fees required of him and was issued with a Certificate of Occupancy (Land Office Number S. 242104) for a term commencing on 1 April 85 and expiring on H 30 June 85 and thereafter on a year to year basis. He has been regularly paying the annual land rent. But when in or about 1990 he attempted to enter the plot, he was resisted and thrown out by the appellant. This gave rise to criminal proceedings which terminated in this court ( in (PC) Criminal Appeal Number 30 of 1990. The court stated that

366 TANZANIA LAW REPORTS [1999] TLR. A the matter at issue was civil rather the criminal, hence the instant proceeding. It was not disputed, on the other hand, that the appellant acquired the land in which the disputed plot came to be comprised in 1959 B and had since been living there with his family. He claimed at the trial that his efforts to obtain a right of occupancy from the District Land Office in the 1970s and 1980s were unsuccessful, as he was always told that the area had not yet been surveyed, but he was surprised c when in 1989 the respondent confronted him with his letter of offer. Further evidence for the respondent ’ s side came from the Land Surveyor, PW3 Mabula Gogadi, who surveyed the area in 1984 and the District Land Officer, PW Deusdedit Narwango, who stated that the appellant was paid compensation of TZS. 30 000 on 2 March 1989 for his house and crops on the plot, but this was challenged by the appellant in cross-examination. E In his judgment, the trial magistrate said, inter alia'. ... there is no dispute that there is a letter of allocation of the grant of the plot served on the plaintiff (Exhibit “ A ” ) which means that, I should be taken as deliberately saying that the plaintiff is currently the lawful owner F of the plot in dispute, by virtue of its lawful allocation to him after the plot was surveyed... it is an elementary principle that as between the plaintiff and defendant, the one who has a better title to possession prevails. Accordingly the defendant has no good title over the suit plot since he has already q been compensated. Mr Magongo who appeared for the appellant attacked this decision on three grounds, but I will confine myself to two. He submitted, in the first place, that the respondent ’ s offer was not superior to the H appellant ’ s deemed right of occupancy which had not been extinguished in the absence of acquisition or revocation, and cited S. Kakubukubu v. M.J. Kasubi (1), a decision of the Court of Appeal; and, secondly, he expressed doubts on the evidence regarding payment of compensation. r In reply Mr Nasimire, who appeared for the respondent, expressed doubts whether the appellant had been on the land since 1959 and

JAMES IBAMBAS v. FRANCIS SARIYAMOSHA 367 suggested that if additional evidence was required on the payment a of compensation it could be called for. I did not, with respect, find Mr Nasimire ’ s response very useful. The appellant ’ s evidence of acquiring the land in 1959 and staying on it ever since was in fact not disputed at the trial. As regards B payment of compensation, I do not need additional evidence when the alleged payment was itself placed on 2 March 1989, that is, four years after the material events, and when such evidence might amount to curing a defective respondent ’ s case, as opposed to providing c a clarification. The issue for determination, and which the trial magistrate toyed with, is whether the respondent acquired a valid title over the plot. The magistrate was of the impression that the respondent acquired a lawful title through the allocation, and he D derived this from the fact that the land was surveyed as well as his finding that compensation was paid to the appellant. I think the impression was erroneous from both scores. In accordance with section 2 of the Land Ordinance Chapter 113, the appellant held a e customary title over the land from which the disputed plot was created and this title was by no means extinguished by the mere act of the survey. It was a misconception for PW3 to say, as he did, and for the magistrate apparently to believe, that the appellant F and other persons whose lands were similarly surveyed became squatters following the survey, when the provisions of the Land Survey Ordinance Chapter 390, do not provide for the extinction of existing rights upon the survey of any piece of land. You do not enter upon somebody ’ s land, whether with or without his invitation, survey it and brand him a squatter, although I do happen to know how popular the expression is in the Land Office parlance. Something more than just a survey was therefore required to extinguish the appellant ’ s title. Unfortunately PW3 did not say in what circumstances H the survey was prompted. Mr Magongo therefore suggested that the title should have been acquired or revoked, citing Kakubukuku (1). In fact that case never decided on the modes of extinguishments of customary titles as such but held that the caretaker of the land 1

368 TANZANIA LAW REPORTS [1999] TLR. involved had no authority from the appellants, its owners, to surrender it. Regarding revocation in particular the court said: ...we should point out... that the provisions of section 10 of the Land Ordinance could not have been applied as the land, though urban, was held by the appellants under customary law... In my view, while the provisions of the Land Acquisition Act, 1967 relating to compulsory acquisition or the declaration of redevelopment areas may in appropriate cases be used to extinguish customary titles, but there was no evidence of any such process here, the least demanding, yet equally efficacious course, is that of surrender, signified simply by an offer and acceptance of compensation. What was the position in this case? Assuming for argument ’ s sake that compensation was paid to the appellant, this was admittedly done in 1989, four years after the purported allocation. The payment could not have retroactive effect. This means when the respondent was offered Plot Number 18 in April 1985 the appellant ’ s customary title still subsisted, since it had neither been surrendered nor otherwise extinguished, and no valid offer can be made of land with a subsisting title. The respondent therefore acquired no title and there was no title which he could renew from year to year. It must be said, above all, that the so-called evidence of compensation relief upon was secondary and inadmissible in the circumstances of this case. PW2 was not at Sengerema at the time of the alleged payment but derived his information from a payment voucher in his custody. That payment voucher, being available, was the admissible evidence and should have been tendered accordingly. As it is now, there was no evidence of payment at all. It follows, in my judgment, that this appeal succeeds and is allowed with costs. The appellant is and has always been the lawful owner of the disputed plot. He may, if he wishes, take out a right of occupancy from the Land Office.