B Ramadhani and Mnzavas, JJ.A. and Mapigano, Ag. J.A.: This is the third appeal between the parties, the matter having started in Vwawa Urban Primary Court in Mbozi District. So for the sake of clarity and simplicity we shall refer to the parties by their first names rather than by appropriate legal labels.
C Omari Kalumwana unsuccessfully sued Jela Kalinga at the Primary Court for the repossession of a certain plot. Needless to say he was aggrieved and so appealed to the District Court of Mbozi where he succeeded. It was then the turn of Jela to go to the High Court at Mbeya to challenge that decision. However, he failed to persuade D Mtenga, J. and he thus lost again. But as his morale is high, Jela has finally come to us after obtaining a certificate from Mwaikasu, J. that there is a point of law at stake. Thus Omari was the original plaintiff while Jela was the original defendant. Now before us Omari is the respondent and Jela is the appellant.
E The facts of the matter are as simple as their issues are intertwined. The Regional CCM clecrations of the 5th February, 1985 were held in Mbozi District. The District Celebrations Committee identified the site on which to hold the festivities and decided that it should be fenced by building cottages all around to turn it into a stadium, so F to speak. The District Celebrations Committee, as would be expected, was under the chairmanship of the District Commissioner while the District Cultural Officer, one Nicodemus Mwankemwa (PW. 2), was its Secretary. A building Sub-Committee (hereinafter referred to as the sub-committee), whose composition was not G spelled out in evidence, was established and charged with the task of issuing out plots to interested persons for building cottages. Both Omari and Jela were allocated plots which were separated by an interspace. A public latrine was built on the interspace leaving passages on either side of the latrine. After the celebration were over it H was decided to block-up the passages. Omari was permitted by PW.2 to build a wall to connect his cottage to the side of the public latrine adjacent to him. When he was about to put up a roof he left for Dar es Salaam and, on his return, Omari found both the wall he had constructed and the public latrine demolished and Jela was in the I process of creating a new cottage thereon having being permitted to do so by both the district Land
RAMADHANI AND MNZAVAS JJA AND MAPIGANO AG JA
Officer, one Paul Nyalusi (DW.2), and the District Medical Officer called Senga Senga (DW.3). it was the same A DW.3 who had earlier on given a written authority to one Sadoki to demolish the public latrine and the wall of Omari. Naturally, Omari confronted Jela who ignored his protests and proceeded with his construction work. That sent Omari to the Primary court, as said earlier, suing Jela for trespass. B
The point of law that was certified to us briefly was this:
Since the sub-committee was the one with the authority to allocate plots at the stadium and as neither Omari nor Jela C obtained possession of the plot in dispute from the sub-committee, could either one of them be said to have acquired a good title?
Mr. Batenyunga, learned Counsel for Jela, the appellant, presented a memorandum of appeal containing four D grounds of appeal The first ground was that the learned Judge erred to find Jela to be a trespasser as that issue could not arise in the circumstances of this case. The second ground was that the judge erred to declare Omari to have had a better title while there was a finding of a double allocation. The third ground was that the Judge erred E to have denied compensation to Jela on the ground that he was a trespasser. Lastly, that the Judge erred to have granted the plot to Omari while none of them had a better title because of the double allocation.
Mr. Bateyunga before us submitted that since the sub-committee did not allocate the plot to either Omari or Jela F then none of had good title. Therefore, the counsel argued, Omari had no right to sue Jela who could never be a trespasser. Mr. Bateyunga prayed that the decision of the Primary Court be restored.
On the other hand, Mr Mwangole, learned Counsel for Omari, the respondent, argued that there was no double G allocation as Omari was given the plot by PW. 2 on behalf of the sub-committee. On the contrary, the counsel submitted, Jela had no good title as both Dws. 2 and 3 no authority to issue plots. However, Mr Mwangole could not refer us to nay evidence to support his contention that PW. 2 issued the plot in dispute to Omari on behalf of H the sub-committee.
It was the finding of the lower Courts that the sub-committee was the proper authority to allocate plots at the stadium. It was equally settled that the said sub-committee did not issue the plot in dispute to any of the parties. I So we are of the same opinion that in
RAMADHANI AND MNZAVAS JJA AND MAPIGANO AG JA
A law neither of the two had a better title than the other. But in such a situation can there not be trespass?
The foundation of an action for trespass to land is possession. It was decided in Delaney v T. P. Smith Ltd. B [1946] 2 All E.R 23 that to maintain trespass against a wrongdoer it is not necessary that the plaintiff's possession should be lawful. But that is not the case if the action is against the lawful owner. As there was no lawful owner in this case the question than is which of the two had possession, albeit unlawful, at the time of the dispute.
It has never been disputed at any stage that Omari had actual possession before the demolition and the subsequent C construction by Jela. The case of Thompson v Ward [1953] 1 All E.R 1169 supports the proposition that any one who was in possession or who is deemed to have been in possession at the time of the trespass could bring an action for trespass. so Omari's action was proper.
D However, one of the defences against an action for trespass is a claim by the defendant that he had a right to the possession of the land at the time of the alleged trespass or that he acted under the authority of some person having such a right (Halsbury's Law England 3rd. Ed. Vol. 38 at page 749 paragraph 1226). That has been the E defence of Jela. But as already shown he could not have such a right as DW.2 and DW.3 had no authority to giveit to him.
For the sake of completeness we may observe that it could have been argued, though it was not on behalf of Jela that he did not know that he was committing trespass or that he was misled by DW.2 and DW.3 into occupation. F That is very true. However, a person is liable for trespass if he acts voluntarily knowing the nature and the quality of his act even though he does not know the act to be wrongful (See Moriss v Marsden and Another [1952] 1 All E.R. 925).
G Thus we find that Omari had possession of the plot in dispute and that Jela committed trespass. So possession should be restored back to Omari as was the finding of both the District Court and the High Court.
H Mr. Bateyunga had prayed that in the event we came to the conclusion which we have arrived at, we then should consider awarding compensation to Jela. Mr Mwangole was bitterly opposed to that prayer but eventually he conceded. As there was no evidence as to how much money Jela had expanded on the structure we direct the I District Magistrate to take evidence from the parties and experts like the Government valuers to assess the cost of erecting the building in 1986. Interest on the amout from the date of judgment
by the District Court, that is the time when Jela was deposed, to the time of payment of the compensation should A be granted as well.
The appeal is dismissed except for compensation.
As the parties were not at fault but were misled into this litigation by other who then became on-lookers we order each party to bear his own costs. B
Before we finish, we may as well comment that Omari suffered some loss when the wall he had built was demolished. But that is a claim which could be brought against DW.3 who ordered the demolition and not Jela. C
Appeal dismissed.
D
________________
