IN
THE COURT OF APPEAL OF TANZANIA
AT
DAR ES SALAA.,M
(CORAM:
MROSO,
J.A., MUNUO, J.A., And NSEKELA, J.A.
CIVIL
APPEAL NO. 12 OF 2001 BETWEEN
MWAJUMA
MBEGU APPELLANT
AND
KITWANA
AMANI RESPONDENT
(Appeal
from the judgment of the High Court of Tanzania at Dar es Salaam)
(Mkude,J.)
dated
18th
day of May, 1993 in
Civil
Appeal No. 25 of 1989 3
JUDGMENT
OF THE COURT
(29/09/2006)
NSEKELA,
J.A.:
This appeal concerns a
dispute over a plot of land No. 53 Ex Daya Estate which was allocated
to the disputants herein at different times. The respondent, one
Kitwana Amani, was the plaintiff in R.M. Civil Case No. 6 of 1983.
The appellant, Mwajuma Mbegu, was the defendant. The respondent
claimed that he was the lawful owner of that property since it was
granted to him by the Land Office, Ilala on the 6.2.78. He paid the
necessary fees and on the 7.3.78 obtained a building permit from the
City Council. The case for the appellant however is to the effect
that she was granted an offer for a Right of Occupancy over that same
piece of land from the 1.7.73 to 30.6.74 and thereafter from year to
year until terminated in writing by either party giving three months'
notice. In the Court of the Resident Magistrate, the trial Magistrate
held that the appellant/defendant was the lawful owner of plot No. 53
Ex Daya, Ilala. The respondent/plaintiff was dissatisfied with this
decision and appealed to the High Court (late Mkude, J.) which
reversed the lower Court's decision and declared that the respondent
Kitwana Amani was the lawful owner of the plot in dispute, hence the
appeal to this Court.
The appellant through
her learned advocate, Mr. R. Maleta, lodged five grounds of appeal,
namely:
The learned Judge erred
in basing his decision on the report prepared by the Principal
Secretary, Ministry of Land, (sic) which the (sic) report was not
admitted as an exhibit in the trial court.
The learned Judge erred
in considering the report while the same was not proceed (sic) and
was not served on the appellant at all.
The learned Judge erred
in holding that the appellant was aware of the revocation of her
title to the disputed plot while there is no evidence of service of
notice of revocation to the appellant.
the learned Judge erred
in law and in fact in assessing the evidence of the appellant.
The learned Judge erred
in drawing conclusion in favour of the respondent.
Mr. Maleta in arguing
the appeal combined the first and second grounds of appeal as well as
the third and the fifth grounds of appeal. He abandoned the fourth
ground of appeal. The main complaint by Mr. Maleta against the
decision of the High Court was the reliance of the Court on a report
that was prepared by the then Principal Secretary, Ministry of Lands
which was not tendered in evidence at the trial. The learned advocate
contended that the appellant was the one who had acquired the
disputed plot earlier in 1968 from his father and that later on in
1973 the Land Office allocated it to her. The second complaint
revolved around the lack of evidence before the trial court that the
President had revoked the appellant's Right of Occupancy according to
law. The appellant had testified that after she had noticed that
someone was developing the disputed plot, she made a follow-up with
the Ministry of Lands but was not given any revocation notice or
order apart from being verbally informed that her Right of Occupancy
had indeed been revoked by the President.
Mr. El-Maamry, who
advocated for the respondent, forcefully submitted that there was
only one issue for consideration and determination by the Court and
the issue was the revocation of the disputed plot. The learned
advocate contended that the appellant was well aware of the fact that
her Offer of Right of Occupancy had been revoked. There was
apparently an inspection report which showed that she was in breach
of a condition to complete building a house within one year. As
regards the report by Mr. Minja, Mr. El-Maamry submitted that it was
prepared in the course of business and that it was a government
report which was an official record.
We take the liberty to
quote the relevant part of the judgment of the learned High Court
Judge since it was central to the conclusion that he arrived at. This
is what the late Mkude, J. said -
"As a first
appellate court this court can reĀevaluate the evidence and make
findings of fact therefrom. As the letter from Minja was written in
the ordinary course of business and forms part of the official
records on this matter in the files of the Ministry of Lands I agree
with Mr. El-Maamry, learned counsel for the appellant that the trial
court was wrong to have disallowed its reference or production by PW3
merely because he was not the author of the letter. That letter sets
out the background to the revocation of the title given to the
respondent Mwajuma Salehe Mbegu, and says categorically that the
title given to her had to be revoked as she had failed to develop the
plot as required by the development conditions. The evidence of Mrs.
Lucy Bundala, a Land Officer, clearly shows that according to the
records in the Ministry of Lands a notice of revocation was sent to
Mwajuma Mbegu but no reply was received from her."
It is evident that that
the decision of the High Court was essentially based on the contents
of the report prepared by Mr. Minja to the Principal Secretary,
President's Office and on the testimony of PW4, Mrs. Lucy Bundala.
With the greatest respect to the late learned judge, there was no
factual foundation on the record on which to base such a conclusion.
The learned judge correctly said that Mr. Minja's report had not
been admitted in evidence. It was therefore not part and parcel of
the court record. Yet somehow inexplicably the learned judge was
able to make findings of fact on the basis of a report which was not
before the court. Yes, it was a public document in terms of section
3 (1) and 83 (a) (iii) of the Evidence Act, 1967. However, section
87 provides for the mode of proving certain public documents.
Section 87 (a) (i) and (ii) provides as under:
"87. The following
public documents may be proved as follows:-
(a) acts, orders or
notifications of the Government of the United Republic, the
Executive of Zanzibar, the High Commission or the Organization or
any service thereof or any local authority or of a ministry or
department of any of the foregoing -
(i) by
the records of the service,
authority, ministry, or
department
certified by the head thereof; or
(ii) by
any document purporting to be
printed or published by order
of
the Government or other body
concerned."
A public document may
be proved by the production of the original or by a certified copy
under section 86 or in the manner prescribed under section 87 (a)
(i) above. Under the circumstances, we are of the settled view that
the learned judge erred in taking into consideration a public
document which had not been tendered in evidence as proof of the
facts stated therein. It is true that certain matters need not
formally be proved. The principal matters of which the court will
take judicial notice are contained in section 59 (1) of the Evidence
Act, 1967 and that report cannot be said to be covered as well.
There was therefore no justification at all for the Court to make
findings of fact based on a report which was not before the Court.
In the event, we are satisfied that the first two grounds of appeal
are justified.
The third and fifth
grounds of appeal are closely related to the first two. The
complaint here is that the appellant's Offer of Right of Occupancy
was not revoked by the President. PW4, Mrs. Lucy Bundala, a Land
Officer with the Ministry of Lands, testified that the appellant had
a short-term lease of year to year. When the disputed plot was
inspected, it was found that it had not been developed. She added
that a notice of revocation was sent to the appellant. PW4 however
was not certain whether or not the said notice was served upon her
or not, though the office records indicated so. Apart from the
testimony of PW4, there is no other evidence to the effect that the
appellant had been served with the notice of revocation. The
appellant when cross-examined by Mr. El-Maamry stated thus -
"It is not true
that my R/Occupancy was cancelled because of failing to develop it.
Kobelo told me that the plot was cancelled but I was not satisfied
with the reply. I was told the R/Occupancy was cancelled since
1976".
From this evidence, the
learned judge concluded that the appellant was aware of the
revocation of her Right of Occupancy. In her evidence the appellant
denied that she had been served with any notice of revocation from
the Land Office but was verbally notified to that effect. The letter
of Offer of Right of Occupancy dated the 28.9.73 from the Ministry
of Lands, Housing and Urban Development to the appellant contained a
number of conditions which included the following -
"1. Term: From the
1st
day of July, 1973 to the 30th
day of June, 1974 and thereafter, year to year until terminated by
either party giving on the other three months period notice in
writing to expire at any time.
6. Revocation: the
President may revoke the Right of Occupancy for good cause including
the failure of the Occupier to comply with these conditions.
8. Notices: Any notice
to be given to the Occupier shall be duly given to his last known
postal address or left with any person in physical occupation of the
land, or left affixed in a conspicuous position on the land or on
any building thereon."
The President could
only revoke the Offer of Right of Occupancy by giving to the
appellant notice in writing in terms of condition no. 8. Neither PW3
nor PW4 tendered any notice of revocation before the trial Court. On
appeal to the High Court there was reliance on the report by Mr.
Minja which purportedly recommended that the appellant's Right of
Occupancy be revoked. We have already said that it was improper for
the learned judge to act on a report which was not before the Court.
We should perhaps also mention here that neither the appellant nor
the respondent tendered evidence as to whether or not the disputed
plot was registered under the Land Registration Ordinance, Cap 334.
The only conclusion which in our considered view is justified by the
evidence before the Court, is that the appellant's Right of
Occupancy was not revoked by the President.
In the result, and for
the above reasons, we allow the appeal with costs.
E.
N. MUNUO JUSTICE
OF APPEAL
H. R. NSEKELA JUSTICE
OF APPEAL
I
certify that this is a true copy of the original.
( S.A.N.WAMBURA) SENIOR
DEPUTY REGISTRAR