Kyando, J.: This appeal arises out of the judgment and decree of the Resident Magistrate's Court of Dar es Salaam, at Kisutu, whereby the respondent Sebastin I Christom was declared the person legally entitled to Plot No. 978, Msasani Peninsula, Dar
A es Salaam, as against the appellant Sarjit Singh. At the hearing of the appeal Mr. Raithatha, learned advocate, appeared for the appellant and Dr. Tenga of the Legal Consultancy Services, Faculty of Law University of Dar es Salaam, appeared for the respondent.
The facts of the case are simple, although the legal issues which arise for determination B are not as simple. Very briefly on 26/2/77 the appellant was offered a right of occupancy over the plot mentioned hereinabove by the Kinondoni District Land Office. The offer was contained in a Letter of Offer Ref. No. D/KN/A9782/AOM dated 26th February, C 1977. It was tendered in evidence at the trial and marked as Exh. P.A. Mohinder Sigh (PW1) who said he was appellant's brother and was acting for him (the appellant) paid all the fees for the plot and apparently supplied all the information required in the Letter of Offer on behalf of the appellant. He also obtained a building permit from the City Council, Dar es Salaam, to build on the plot.
D On 20/3/1980 the District Land Development Officer, Kinondoni, wrote the appellant a letter, Ref. D/KN/A9782/JRC of 20/3/1980 (in file Exh. D4) by which he revoked the appellant's right of occupancy over the plot. Upon the revocation a right of occupancy E over the plot, the same plot was offered to the respondent, (by letter of offer tendered in evidence at the trial and marked as Exh. D1. It is dated 20/8/1980). The respondent paid the requisite fees, supplied the information as usually required, and was issued with a F certificate of occupancy (Exh. D2) in relation to the plot. He started construction on it. On noticing this, the appellant filed this suit in the court below, seeking perpetual injunction to restrain the respondent from erecting a building on the plot. He also prayed for costs of the suit and any other relief as the court might deem fit. On 16th October, G 1987, the trial court (Msanche RM) dismissed the suit and declared that the respondent was the rightful owner of the plot in dispute because the appellant's title to it was revoked by the letter of the District Land Officer Ref. No. D/KN/A/978/4/JRC dated 20/3/80. The appellant was not satisfied with that decision and now appeals to this court against it.
H In grounds 1, 2, 3 & 5 of his memorandum of appeal the appellant contends as follows:
1. The learned trial magistrate erred in law and fact in holding that the appellant's title to the suit premises was revoked by the letter of the District Land Officer I reference No. D/KN/A/978/4/JRC dated 20/3/1980. The learned trial
magistrate erred in relying on the said letter and/or erred in placing any weight A thereon and/or the learned trial magistrate ought to have found and held that the District Land Officer has no power to revoke a right of occupancy duly granted.
2. The learned trial magistrate erred in law in considering the certificate of B occupancy, Exhibit D.2, as the right of occupancy itself and ought to have held that a right of occupancy vested in the appellant immediately after accepting the offer for a right of occupancy. C
3. The learned trial magistrate erred in holding that the respondent had a better title and ought to have held that the appellant being a prior grantee of the right of occupancy was entitled to the suit land and ought to have further held that D the subsequent grant of a right of occupancy of the appellant still subsisted was irregular.
4. The learned trial magistrate erred in holding that the appellant never followed up but ought to have held that after payment of the necessary fees for the E certificate of occupancy it was the duty of the land authorities to issue the certificate of occupancy.
The letter of revocation was tendered in a file by a Financne Management Assistant from F the Revenue Office, one Brown Mwambope (DW.2). It was not tendered by the authors of it, i.e. the District Land Development Office. Before me Mr. Raithatha argued that the letter was a copy and was tendered by an Officer who was not in office when it was written. I agree. The letter was quite clearly a copy, sent to the Revenue Office, by G the District Land Office for revenue purposes as DW.2 himself says in his evidence. Very unfortunately, however, no objection to its introduction into evidence was made by Mr. Raithatha, who also represented the appellant at the trial, when it was being H produced by the respondent. Whatever the case, however, I am satisfied that it was improperly admitted in evidence. The original of it should have been tendered, unless there was an explanation, which was lacking in this case, for the tendering of a copy. Also the officials in the District Land Office should have been the ones to tender it, not I someone from the Revenue Office who was only a receipient of a
A copy of it. Then, on this letter, the learned magistrate says in his judgment, "Before the defendant got the offer of a right of occupancy on 20/8/1980, the plaintiff had received a letter from the same office, the Kinondoni District Land Office. The letter was D/KN/A.978/4/JRC dated 20/3/80" (underlining supplied). Going through the record B there is no evidence that the plaintiff/appellant ever received this letter. He did not say in his evidence that he received the letter. The only evidence on the letter is that given by D.W.2 but he too does not testify to the appellant/plaintiff receiving it. The above statement by the learned magistrate is therefore erroneous.
C Mr. Raithatha further argued that revocation was never pleaded in the respondent's/defendant's Written Statement of Defence. He argued also that the appellant's witnesses were never cross-examined on the question of revocation and he submitted therefore that revocation was an after thought by the respondent. Indeed D revocation was not pleaded in the respondent's Written Statement of Defence. Nor were the appellant's witnesses cross-examined on it.
I would agree, therefore, that revocation in this case was a kind of an after thought.
E As indicated above the learned trial magistrate held that the offer of the right of occupancy to the appellant "became actually revoked by the letter dated 20/3/80" in deciding the case against the appellant. He also observed:
Mr. Mwalunguza (PW2) the then District Land Officer of Kinondoni told the Court emphatically F that what the plaintiff (appellant) was given on 26/2/77 was an offer of a Right of Occupancy and not a Title Deed. I think it is common knowledge that when one attempts to acquire title to any piece of land, not only in Dar es Salaam but also elsewhere, one first gets an offer, the G offer must then be accepted. Once it is accepted the real title is granted. The grant of Right of Occupancy is not automatic as some people tend to think, or would it necessarily follow after the offer is communicated. I can see that for three years the plaintiff never made a follow up to acquire the real title deed. Not only that: In fact he even never improved on the land. The land H Office was in Law perfectly entitled to give that offer to another person who was prepared to develop it.(Underlining supplied)
I The above holding and observations by the trial magistrate became the crucial points in this appeal before me. Mr. Raithatha
took the position that a right of occupancy over a plot is granted by a Letter of Offer and A then accepted by the offeree. The latter must pay the requisite fees and supply the information required in the letter of offer to constitute acceptance on his part. Once this is done a right of occupancy is created and granted to the grantee and this is the grant to which S.6 of the Land Ordinance, Cap. 113 refers. He said there is no other way of B granting a right of occupancy under Cap. 113 and that there are no prescribed forms for such a grant. He referred this Court to the case of Patman Garments Industries Ltd. v Tanzania Manufacturers Ltd. [1981] T.L.R. 30 and submitted that in that case the appellant, Patman Garments Industries Ltd., had only been offered a right of occupancy C whereas the respondents Tanzania Manufacturers Ltd. had gone a step further and obtained a certificate of occupancy as well. Yet, he said, the court of Appeal of Tanzania held in favour of the appellant and said the President erred in revoking the appellant's right of occupancy; the court nullified that of the respondents, and restored that of the D appellant even though the respondents had a Certificate of Occupancy and the appellants had none. Mr. Raithatha, citing a passage from Prof. James, "Land Tenure and Policy in Tanzania" P.117, said a Certificate of Occupancy is not the right of occupancy itself, but E it is a document evidencing the right. He concluded his arguments by submitting that as a right of occupancy is created when an offer for it is made and there is acceptance of it, once these (Offer and acceptance) are made no other person can revoke the right of occupancy thus created except the President under S.10 of the Land Ordinance Cap. F 113. He said as the President has delegated the power to revoke rights of occupancy to the Minister for Lands and the Director of Land Development Services, only these can also revoke a right of Occupancy - on behalf of the President. He contended therefore that the purported revocation by the District Land Officer by the letter referred to above G was invalid and without any effect as the said District Land Officer had no power to revoke a right of occupancy once granted. He submitted that because the purported revocation was without effect, the appellant is still the rightful owner of the plot in dispute and that the subsequent grant of a right over the plot to the respondent is null and void. H
In reply Dr. Tenga supported the position taken by the trial Court on this point and submitted that an offer of a right of occupancy does not confer title to land on the offeree. He said when an offer is made and accepted then the grant of a real title is made. He I contended that the Letter of Offer is only a contract binding on the Government
A to issue a Certificate of Occupancy. By itself, he said , it vests no title in the offeree. The title, he submitted, only vests when the certificate is issued. He referred me to a passage in a paper by Prof. G. Mgongo Fimbo entitled, "Double Allocation of Urban Plots. A legal Labyrinth, Citizens' Puzzlement and Nightmare" which the learned B professor delivered at a public lecture on 3rd September 1988 to the Law Association of Tanzania. The passage appears at P.4 of the paper and is one of the matters Prof. Fimbo summarizes as being undisputed. It says:
C The grant of a right of occupancy is manifested by the certificate of occupancy and the right of occupancy vests in the relevant person on the execution thereof.
Dr. Tenga submitted that in view of the above passage the distinction by Prof. James at D page 117 of his book referred to by Mr. Raithatha is of a rather technical nature. He argued also that reference to a "Right of Occupancy" in relation to the Offer made to Patman Garments Industries Ltd. in Patman Garments Industries Ltd v Tanzania Manufacturers Ltd. (supra) was a a loose way of naming the deal for it was not, he E argued, a "Right of Occupancy" as such.
He (Dr. Tenga) contended also that what the appellant got, upon being offered a right of occupancy, was not a title to the land but a commitment from the Government to issue a certificate of occupancy. He said when the certificate is issued it is at that stage that the F Right of Occupancy vests in the grantee. He further contended that in this case what was cancelled by the district Land Officer was not a "Right of Occupancy," which can only be revoked by the President, but a contract of offer. He argued that if such concellation was done wrongfully the remedies the appellant has are specific performance and Gdamages. He said, however, that these remedies are available to the appellant not as against the respondent, but against the Government which issued the offer and committed itself to issuing a certificate of occupancy.
H Finally Dr. Tenga also contended that as in this case the respondent already has been issued with the certificate of occupancy, under s.33 (1) of Cap. 334 his estate, being an estate of a registered owner, is paramount. He said if the appellant wants to challenge the memorials in the Land Register the procedure is for him to apply either to the High Court I or to the Registrar of Titles for rectification of the Land Register. His position is that the present case is not a case of double allocation. He contended that as the allocation to
respondent was made after the offer to the appellant had been cancelled, the question of A double allocation does not arise. He submitted that the appellant's suit is misconceived because there is no, he contended, grant of a right of occupancy which vested in him. He prayed therefore that the appeal be dismissed.
As can be seen, both counsel have made very impressive and learned arguments. I owe B them unlimited gratitudes for the efforts they made in preparing themselves so well to present, and for making, these arguments. Also can be seen, the issue for determination does not seem to have been the subject of judicial investigation and determination before. Most authorities as they are available are on whether a revocation by the President was C valid or not; I have not come across one on when does a right of occupancy take effect or is created.
I now proceed to consider and determine this question of when a right of occupancy is D established or created. The point of departure is, I think, the Letter of Offer itself. I will examine and consider the effect of this first.
It (the letter) states, in part:
Your application for a long term Right of Occupancy (later in this letter called the 'Right') over E this plot has been approved. On receipt of the fees and information requested below I will send a certificate for you to sign containing the following conditions:
(i) Term 99 years from 1/1/1977 F
(ii) Rent 480/= a year revisable after ten years
(iii) (Not applicable)
(iv) (Not applicable)
(v) The building to be in permanent materials. G
(a) Plans to be submitted to the Dar es Salaam Development Council within six months from the date of the commencement of the Right.
(b) Building to begin six months from approval of the plans.
(c) Building to be completed within 36 months from commencement of the Right. H
(vi) (Not applicable)
(vii) (Not applicable)
(viii) (Not applicable) I
A 2. The following information is required by me:
(a) Your full name (in block letters). No request to have certificate of Occupancy written/issued in the name of a person or persons other than offered shall be entertained.
B (b) Your full residential address, giving house number, and name of street, and your P.O. Box number (if any).
(c) Whether you wish to hold as joint tenant or tenants in common and if the latter the share to be taken by each of you. (The property of C deceased joint detant in common passed to his/her heirs according to law).
(d) Whether certificate will be signed in Tanzania or abroad and, if a Company, the manner of realing.
D Paragraph 3 of the letter lists various types of fees which the offeree was required to pay and paragraph 6, the last paragraph of the letter, warns that unless the offer is accepted and all fees are paid within 30 days from date of the letter, "the offer shall lapse and after that date the land will be disposed of as I see fit without further reference to E you."
The letter opens with the words "Your application for a long term Right of Occupancy, (later in this letter called "The Right") over this plot has been approved." Here, the applicant applies for a long term right of occupancy and he is informed that the F application/is approved. The applicant did not apply for an offer: he applied for a right of occupancy and the fact that it has been approved must, in my view, mean he has been given or granted what he applied for, i.e. the right of occupancy. Then the letter states that upon receipt of fees and information requested in the letter, a certificate of G occupancy will be sent to the applicant. There is no further procedure between the stages of approval of the application and the issuing of the certificate once fees are paid and the information is supplied. So when is the grant made? Obviously at the time of the "Letter of Offer" by which the applicant is informed that the application has been approved. H Prof. James in his book referred to above, at P.122 says "When granting unsurveyed land, the Land Officer usually grants an Offer of Right of Occupancy," which is a formal document setting out all the terms and conditions of the grant. The expression "offer of a right of occupancy" is misleading because the document is not a mere offer, but it is a I final document embodying agreed terms." Here he discussed offers or grants of rights over unsurveyed
land but the document he discussed, i.e. the letter containing 'An offer of a right' is the A same in relation to surveyed and unsurveyed lands. So the so called "offer of a right of occupancy," as I have said, is the grant of a right itself, so that by what we call a Letter of Offer a grant by the land office is in fact made of a right of occupancy over a piece of land. B
The other document for consideration is the letter of revocation referred to above. This letter states:
JAMHURI YA MUUNGANO WA TANZANIA C
OFIS YA WAZIRI MKUU
Mkoa Wa Dar es Salaam
Ofisi ya Mkuu wa Wilaya
Simu 28691/2/3
Idara ya Ardhi (W)
Kumb. Na. D./KN/A/9782/JRC
S.L.P. 9588
Dar es Salaam D
20/3/1983
KUFUTWA KWA HAKI YA UMILIKAJI WA KIWANJA NA. 988
MSASANI PENINSULA - DAR ES SALAAM E
Rejea barua yangu ya toleo Kumb. Na. D/KN/A 9782/ACM ya tarehe 26/2/1977 kuhusu somo hilo hapo juu.
Kwa barua hiyo ulitakiwa uwe umemaliza ujenzi wa nyumba yako ifikapo tarehe 30/12/1979. F Mpaka hivi sasa hakuna kilichofanyika na hivyo bado kiko wazi. Kutokana na hayo imedhihirika wazi kwamba umeshindwa au hutaki kukiendeleza kiwanja hiki. Kwahiyo unaarifiwa kuwa haki yako ya kumiliki kiwanja hiki imekwisha kuanzia tarehe ya barua hii na G kwamba unatakiwa kukiacha katika hali safi.
Kwa barua hii Mkurugenzi wa Huduma za Ardhi, Afisa Mkoa wa Dar es Salaam, wanaombwa kurekebisha kumbukumbu zako.
(Sgd) J.R, CHUMA H
AFISA MAENDELEO YA ARDHI (W)
KINONDONI
As can be seen, this letter is headed, "Kufutwa kwa Haki ya Umilikaji wa Kiwanja Na. 978 Msasani Peninsula ....." "Haki ya Umilikaji I
A Kiwanja" means a right of occupancy. So the District Land Officer was clear in his mind as to what he was revoking, not a contract but a right of occupancy as his letter states. He could not have been revoking a right of occupancy which he knew did not exist - because of lack of a certificate of occupancy; he must have assumed that the right of occupancy had come into existence because of the letter of offer and acceptance of B the offer by the applicant the appellant.
Then some court decisions: As argued by Mr. Raithatha, in the Patman Garments C Industries Ltd. v Tanzania Manufacturers Ltd. case (supra) what was revoked by the President was the right of occupancy granted to the appellants. Patman Garments Manufacturers Ltd. At the time of the revocation the appellants had not been issued with a certificate of occupancy yet, though the respondents had. Yet what was revoked is referred to in the judgment of the Court of Appeal as a right of occupancy, not a mere D contract or commitment to issue a certificate of occupancy as Dr. Tenga contends. Secondly, in the case of Col. S.M.A. Kashimiri v Maginder Singh Matharu, (CA) Civ App. No. 4 of 1988 (unreported) a case to which I was referred by Dr. Tenga, it is stated in the following passage from the judgment of Omar, J.A.:
E This is a case of double allocation of a parcel of land. Both parties to the suit were each allocated the same plot within a space of two months. Respondent was the first person to be allocated on 20/11/80 after the Allocation Committee known by the name of Urban Planning Committee had sat on 18/11/80 and considered his application and approved his name as the F now owner of the plot for a lease of 99 years. Respondent was required to pay the necessary fees for the plot within thirty days from the date of this offer of right of occupancy before the plot could be legally deemed to have passed to him.
G From this passage it is clear that land becomes legally owned or a right of occupancy is established, once an offer for it is made and the offeree pays the fees. The question of a certificate does not arise in order for a right of occupancy to be created.
H As for the passage from Prof. Fimbo's paper referred to by Dr. Tenga, very unfortunately it is not elaborate enough to show exactly what it was intended to mean and in what context Prof. Fimbo makes the point. In one sense by saying that the grant of a right of occupancy is manifested by the certificate of occupancy, he may be taken to I mean the same thing as what were are trying to
say here, i.e. that a certificate of occupancy is evidence of a right of occupancy but not A the right itself. But if he means that the certificate is the one which creates the right of occupancy I think, with utmost respect, he cannot be right. Prof. James in his book (supra) at p.117 says it is clear from section 9 of the Land Ordinance, Cap. 113, "that a B certificate is not the right of occupancy itself, but is a document evidencing the right...." In view of the mass of material I have attempted to examine above, I am of the view that it is him who is right and I will not accept the statement of the law as made by Prof. Fimbo on the point under consideration.
From the above then, it is obvious that the District Land Officer revoked a right of C occupancy. He himself in fact knew that he was revoking a right of occupancy for he states, as already shown, in the heading of his letter "Kufutwa kwa Haki ya Umilikaji wa Kiwanja..." (Revocation of a right of occupancy). I hold therefore that a right of D occupancy is created by the approval of the applicant's appliaction for the grant of one, i.e. a right of occupancy, and the acceptance by the applicant of the granted right. The trial magistrate was clearly wrong therefore when he held that what was revoked by the District Land Officer was not "the real right of occupancy" but only "an Offer of a right of Occupancy." As Prof. James states in his book referred to above, "Offer of a right of E Occupancy" is a misleading term, as the offer is in fact the grant itself. There is therefore no such thing as "real right of occupancy" in law, a term employed by the trial magistrate in his judgment.
Did the District Land Officer have power to revoke the right of occupancy? Obviously F not. While power to grant rights of occupancy have been delegated to him (see James, "Land Tenure and Policy in Tanzania" (supra), p. 116, no powers to revoke the rights have been delegated to him. It is only the President who has such powers, or at the G lowest, the Minister for Lands or the Director for Land Development Services. So the purported revocation of the right of occupancy granted to the appellant in this instant case was of no effect at all. It was made by someone who had no power to revoke.
Is it perhaps that failure to complete building on the plot by the appellant within 36 H months from the date of commencement of the right caused the right to lapse? I do not think this was possibly the case, for although there is this requirement that building was to be completed within 36 months there is no indication in the Letter of Offer as to what I would happen if construction had not been finished within that period. In paragraph 6 of the Letter of Offer, it
A is only failure to accept the grant and to pay fees within 30 days "from the date of this letter" that lead to lapsing of a grant. Nothing occurs where development within the 36 months is not carried out according to that Letter. Revocation for failure to develop must therefore be resorted to only as provided for in s.10 of the Land Ordinance Cap. 113. B Under that section the President can revoke a right of occupancy for good cause on the ground of non-development if the holder of a right has abandoned or does not use the land for a period of five years. So even if the District Land Officer had powers to Crevoke, he would have acted prematurely in the instant case by revoking for non-development for a period of three years only. The law provides for abandonment or non-use of land for five years, not three years, to warrant a revocation of a right of occupancy over it.
D What then is the result of the District Land Officer's wrongful and in ineffectual revocation of the appellant's right? Dr. Tenga, as shown above says the remedies to the appellant are in specific performance and damages, as against the Government. I do not think that is the case. First as Dr. Tenga himself submitted, those would have been the remedies if I had held that what was revoked was a mere contract. But I have held that E what was revoked was a right of occupancy conferring upon the appellant's rights over the suit plot. If the perported revocation was without effect as I have held it means that those rights were never in law ever taken away from him (the appellant) and the only thing for this court to do is to declare that he is still the rightful owner of the plot. F Appellant's rights over the plot still subsisting, it means that any later grant of a right over the same plot is null and void. In other words nothing was granted at all after the grant to the appellant for the land Office could not have granted another right over a plot it had already granted to another person. I declare here that the grant or purported grant of a G right over the plot in dispute in this case to the respondent in null and void. The appellant remains the rightful owner of the suit plot.
Secondly concerning a possible claim for specific performance and damages against the H Government, I think this is open to either party, who eventually loses in a suit over a disputed plot to sue for these. In the instant case it can be said that it is open to the respondent too to sue the Government for allocating him a plot over which the existing right of occupancy had not been properly revoked. I do not accept the argument that the appellant, the rightful owner of the the plot, should have been the one to sue for specific I performance and damages as against the Government. This stop is open to either party and I think, as I have said, it all depends on who eventually
loses in a suit over a disputed plot. A
As to whether the appellant should have sought a rectification of the Land Register rather than sueing as he did, the course of action the appellant took has been taken in many cases against registered grantees of rights of occupancies (see, e.g. Patman Garments B Industries Ltd. v Tanzania Manufactures Ltd. case (supra).) So I do not think by suing the appellant adopted an unusual or improper step in seeking redress in this case.
In the final analysis therefore, I hold that revocation in this case was not pleaded or proved by credible evidence. If it was proved, it (the revocation) was done by a person C who had no power to do it. For these reasons I declare that the appellant is the rightful owner of Plot No. 978, Msasani Peninsula, Dar es Salaam, and the prayer for perpetual injunction against the respondent is granted. I allow the appeal by the appellant and set aside the judgment and decree of the trial court which erroneously deprived him of the D plot. The respondent is given one month from the date of this judgment to remove the structure he has put up and the materials he has collected on the suit plot. He is restrained, together with his agents or servants, from interfering with the plot in anyway.
Appeal allowed. E
F
