Mapigano, J.: This is an appeal against the order that the learned resident magistrate made at the end of his judgment dated 8/12/83, requiring the appellant to make reasonable compensation to the respondent in respect of certain improvements that the respondent had carried out on the plot of the appellant. The C learned magistrate did not go further and assess and fix the quantum of the said compensation.
It was common ground that the appellant Ramadhani Kambi Mkinga was since July, 1977 the grantee of a right of occupancy in a parcel of land described by the land office as plot No. 475 Block 8, Mwananyamala B Area, Dar es Salaam, and held a certificate D of title bearing No. 135791, valid for a period of 33 years. He had sought and obtained a building permit from the City Council, but his desire to start constructing a dwelling-house on the plot met a drawback. On 10/10/77 he was convicted of an offence by the district court at Kisutu and was consequently sent to jail for a term of eight years. While he was serving the term he got wind of an unsettling rumour that the E respondent Ramadhani Said had entered upon the plot and occupied it. Naturally he was perturbed. According to him, he had not authorised any one to sell the plot. He wrote the land office to protest. As he came to find out on being discharged from prison on 10/2/83, the land office was not at all in the know about the respondent's purchase of F the plot. According to the records of the land office, the right of occupancy over the plot was still vested in the appellant. All that happened when he called at the land office to make enquiries is that he was required to pay the land rent and service charges that had fallen due.
However, the appellant's inspection of the plot had confirmed the rumour that had H filtered into the prison. He observed that the respondent had erected a building on the plot. The appellant instituted these proceedings in the court of Resident Magistrate at Kisutu upon the respondent's refusal to acknowledge that the appellant was still the owner of the suit-plot.
The respondent contested the action, claiming that he had purchased the plot for shs,4,000/= from DW.2 Hadija Sultani, the mother of the appellant. According to him, this Hadija and one Maulidi had approached him and disclosed to him that they were earnestly looking for someone to buy the plot for shs. 4,000/=. According to him, this I Maulidi had custody of the certificate of occupancy. According to him, he became interested
in the proposal and on or about 9/1/78 he agreed to buy and bought the plot at the price A proposed. He was then given the certificate of occupancy as well as the building permit, both documents showing that the right in the plot had been granted to Ramadhani Kambi Mkinga. According to him, when he questioned Hadija about these particulars, she replied to say that Ramadhani Kambi Mkinga was her son, that he was in prison and B that he had authorized her to sell the plot. He said he was satisfied with her explanation and started constructing a house on the plot without bothering to check out with the appellant or to have the disposition approved by the land office.
Hadija was called by the respondent. She denied making any offer to the respondent in C respect of the plot. She also denied ever receiving any instruction from the appellant to sell the plot and holding herself out as having been authoritised to do so. Further, she denied having been a party to the purported sale. For reasons that were not recorded Maulidi was not called. D
The learned magistrate considered the evidence and held that the purported sale was invalid and that the appellant is still the holder of the right of occupancy over the plot. That decision was justified by the evidence and in actual fact no cross-appeal has been preferred from it, which is a strong indication that the respondent is satisfied with that E decision.
In effect the learned magistrate found that the appellant had never appointed either Hadija or Maulidi to be his agent to sell the plot and that if any of the two persons professed to contract on behalf of the appellant, she or he was actually practising false F pretences. The magistrate appears to have cleared Hadija and to have attributed blame to Maulidi. For myself, I would go further. I would say that the righteousness or bonafides of the respondent at the time of the transaction is also seriously questionable, considering in particular the fact that the matter of transfer of a right of occupancy in Dar G es Salaam is not a trifling affair. That plausibly explains two singular things: why the appellant made no efforts to ascertain Hadija's authority to act for the appellant and who for years he never bothered to secure the consent of the authorities to the transfer.
The magistrate next found that the respondent had wrongfully entered upon the plot, in H the language of the law, that he had committed a trespass. That finding cannot be faulted and again it is to be noted that no cross-appeal has been lodged by the respondent against it.
Then the magistrate proceeded to deal with the issue of reliefs and went into that matter in the following manner: I
The defendant (respondent) was innocent for what he purchased turned out to be some one's A plot and made improvement on it. Is he entitled to any compensation for these improvements? The defendant had an apparent reason for making the improvements. The plaintiff should not benefit from them without compensation. Therefore it is ordered that the house in this suit plot be demolished and plaintiff compensates the defendant a reasonable B compensation for the improvements done on the plot.
I may pause to remark that it is difficult to follow the logic of this decision. The order of the learned magistrate seems to be self-contradictory. On one hand he ordered that the C house the respondent had constructed on the plot should be pulled down while on the other he required the appellant to pay compensation to the respondent for the benefits of the improvement that the respondent had effected on the land. I put the question: what benefits if the house was to be demolished? D
As pointed out at the outset, the appellant is dissatisfied with this part of the learned magistrate's judgment. Mr Rahim who advocated for the appellant submitted that the learned magistrate erred in awarding the respondent compensation, in view of the magistrate's earlier finding that the respondent was a trespasser. He referred this court E to the decision in Saidi Kaangura v Issa Khamisi, [1973] L.R.T. no.28. I will reflect on this decision, but let me first turn to the two decisions that the learned magistrate supposedly relied on.
The first is Alli Mangosongo v Chrispina Magenje, [1977] L.R.T. n. 18. In that case the appellant was permitted to till a piece of land of the respondent, but he was expressly F told not to grow permanent crops there. In due course the respondent disregarded the instruction and grew permanent crops. The appellant promptly protested, but the respondent reacted by laying claim to the land in question. When the matter came to appeal before the High Court, Kisanga, J. (as he then was) held that a person is entitled G to compensation for improvement effected on the land if at the time of carrying out such improvement he had apparent justification for doing so, for example; he said, where he bought and developed the land in good faith but it later transpires that the seller had in fact no title to such land which he could have passed to him. On the facts of that case H the learned judge took the view that the appellant had grown the permanent crops in bad faith and accordingly held that he was not entitled to any compensation in respect of those crops.
The second authority which the learned magistrate cited is Anna Benedict v Sefu Mrisho and Another, [1977] L.R.T. no. 36. There the right of occupancy in the plot in I dispute had been vested in the appellant.
Subsequently a body of officials incompetently purported to re-allocate the right to the A respondent, upon which the respondent entered upon the land and started constructing a house thereon. The District Court of Morogoro held that the appellant was still the rightful holder of the right and granted him vacant possession of the house the respondent had built, on condition that he first should pay full compensation to the respondent. B Dissatisfied with the compensation order, the appellant took it to appeal, on the ground, inter alia, that since the respondent was a trespasser he was not entitled to any compensation. In the High Court the appeal came before the late Biron, J. who held that C the respondent was not strictly a trespasser as he had been misled into believing that he had lawfully acquired the right of occupancy over the plot. The learned judge was of the view that the case came four square within the principles which were applied by Mnzavas, J. (now elevated to JK) in Hamisi Sinahela v Assan Mbwele, [1974] L.R.T. n, 28: viz that a party should not reap the benefit of the improvement to the land effected D by the opposing party without paying for such benefit and compensating the opposite party for his expenditure in so improving the value of the land. Biron, J. went on to observe that that viewpoint finds bases in both the equitable doctrine of unjust enrichment and the legal principle laid down in section 72 of the Law of Contract E Ordinance. So Anna Benedict v Sefu Mrisho and Another was also a case of good faith.
Saidi Karungura v Issa Khamisi, on which the appellant relies, was dissimilar. There it was not in dispute that the appellant had trespassed upon the land of the respondent and proceeded to erect a house thereon. And what's more, the District Court found that F he had done so with full knowledge that the land was at the material time owned and occupied by the respondent. And what's even more, the court also found that the respondent had promptly protested against the appellant's entry and doings. In these premises the court held that the appellant was not entitled to any compensation for any Gunexhausted improvement he might have made on the land. The decision was wholly affirmed by the late Mwakasendo, Ag. J. (as he then was) on appeal. It was a case of bad faith.
As demonstrated, one theme runs through all these cases and it is this: where A H knowingly or recklessly enters upon B's land in circumstances that amount to a trespass, and B promptly (i.e. at the earliest possible opportunity) makes protests against his entry, A is not legally entitled to be paid any compensation by B for any of the improvements he might have effected on the land in this course of the trespass
The instant case is, on balance, such a case. In my opinion this is not a case of the I respondent having entered on the land in good faith. By
his own admission, he knew, at the material time, that the person in whom the right of A occupancy over the plot was vested was undergoing imprisonment. If it is true that the mother of the appellant told him that she had been clothed with authority to transact for the appellant, which is in grave doubt and which story the learned magistrate disbelieved, he ought to have been wary and thoughtful enough to check out her story with the B appellant. It would not have been difficult to do so.
In any event there is a circumstance that argued against the award of compensation. The house in question is a wattle and daub structure and it is very much doubtful that it was constructed in accordance with the conditions of the right of occupancy and the building C rules of the City Council. Probability is that if the appellant leaves it to stand he may one day be called upon to pull it down.
In the final result I allow this appeal and set aside the trial magistrate's order awarding compensation to the respondent. The appellant will have his costs in both this court and in the lower court. D
Delivered to the parties.
Appeal allowed.
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