SHIVJI V. PELLEGRINI(1972)H.C.D.
n. 76.
FACTS
The plaintiff’s motor vehicle which was
being driven by his driver was in
collision with the defendant’s motor
vehicle and as a result the plaintiff’s
vehicle was damaged beyond repair and his
driver received extensive personal injuries. The plaintiff was obliged
to pay his driver a total of Shs. 14,132/65 by way of
compensation and for medical expenses under the
Workmen’s Compensation Ordinance. The plaintiff sought to recover this amount from the defendant and asked to amend the plaint
to include the claim.
HELD
(1) “Order V1 Rule 17 of the
Civil Procedure Code provides as
follows ‘The court may at any stage of the proceedings allow either party to
alter or amend his pleadings in
such manner and on such terms as
may be just, and all such amendments shall be made as may be necessary for the purpose of
determining the real questions in
controversy between the parties’. The principle on which the court will exercise
this discretion were discussed in Eastern Bakery v. Castelino (1958) E.A. 461. As a rule amendment to
pleadings should be freely allowed if they can be made without injustice to the
other side.
The powers of amendments to pleadings should be freely allowed if
they can be made without injustice to the other side. The powers of amendment
should not be used to substitute one cause of action for another or change an action into another of a
substantially different character. Subject
to this, the fact that an
amendment may introduce a new case is
not a ground for refusing it.”
(2) “The plaintiff had to establish negligence in
order to succeed in the pending suit just as he has to establish it in order to establish the right to indemnity under s. 23(3) of the Workmen’s Compensation
Ordinance was statute barred under Article 22 of the Schedule to the Indian Limitation Act which he submits is
applicable to this case since the cause
of action accrued before the Law of Limitation Act No. 10 of 1970 came into
operation on the 1st March 1971. I agree
that where an amendment would prejudice the rights of the opposing party in that it would deprive him of a defence of limitation which has accrued since the filing of the suit it should be refused.
The question
for consideration is whether the
plaintiff’s claim under s. 23(3) of the Workmen’s Compensation Ordinance is time-barred.”
(3) “The accident occurred on the 30th September 1967. The plaint in this case
was filed on the 1st March 1969, the compensation was paid to the plaintiff’s driver in September 1968
and the plaintiff’s right to indemnity
accrued as from the date of payment. The present application to amend the
plaint was filed on the 6th October 1971, that is to say, 3 years after the right of action accrued. I accept the
submission by Mr. Talati, learned counsel
for he plaintiff/applicant that the
law that applies in this case is the Law of Limitation Act (No. 10 of 1971) and that the
claim under s.23(3) of the Workmen’s Compensation Ordinance is not a claim in negligence for personal
injuries but a statutory claim to indemnity based on proof of negligence.” [His
lordship then referred to S. 48 of the
Limitation Act and proceeded]:
“This case
comes under s. 48(1) of the Act Article 10 of Part I of the First
Schedule to the said Act provides 6 years as the period of limitation for a
‘suit to recover any sum recoverable by
virtue of a written law other than a penalty of forfeiture or sum by ways of penalty or forfeiture’. I hold therefore that the
plaintiff’s claim under s. 23(3) of the Workmen’s Compensation Ordinance is
not time-barred.”
(4) “There
is the further consideration that the defendant has, since the date of
the accident (30/9/67), been absent from Tanzania. S. 20 of the Law of
Limitation Act provides for any suit the
time during which the defendant has been absent from the United Republic shall
be excluded. The circumstance that under
the Civil Procedure Code the defendant could have been served with a
summons during his absence from the
United Republic is irrelevant to
the application of s. 20 of the said Act. (See (1894) 1 Q. B. 533
and (1894) 2Q.B.352).
WANGWE MUHERE V. MOGAYA CHACHA(1972)H.C.D n 137.
FACTS
The appellant was sued for the recovery of compensation in the sum of shillings 2,000/=
for assaulting the respondent. The claim was
allowed to the extent of
shillings 1,900/= only, the Court taking into account the sum of shillings
100/= which the respondent had recovered
as compensation against the appellant during criminal proceeding in
respect of the same assault. The
appellant now appeal against the award. Item
(6) of the First Schedule to the
Law of Limitation Act, 1971 provides that the period of limitation in respect of a suit founded on tort is three years.
The
present suit which is founded on tort was
instituted just under five years after the right to sue accrued. The respondent when asked to explain the
delay said that after being wounded by
the appellant he was in pain and therefore unable to work in order to raise the
money which was necessary as Court fees for filing the suit. Following
the injury inflicted by the appellant,
he was admitted in hospital for a month after which he continued to receive
treatment as an out-patient for a further
period of one and a half months. Section 15 of the Law of Limitation Act
provides that, “If on the date on which
a right of action for a suit …..accrues, the person to whom it accrues is under
a disability, the action may be brought at any
time before the expiry of the
period of limitation prescribed for such action computed from the date when the person ceases to be under a
disability
……….”
HELD
( 1) “I am prepared to hold that the respondent was under a disability
during the one month when he was admitted in
hospital because at that time not only was he unable physically to move
from one place to another but he
was also unable to work in order to
raise the necessary Court fees for filing the action.
As regards the one and a
half months during which he continued to receive treatment as an out-patient it
seems arguable whether he could properly
be said to be under disability within the meaning of this section. Because although he might still
be in pain and therefore unable to work
for money, he could have approached the Court and apply to sue as a pauper. This, however, he did not
do. Even if it were to be assumed in his favour that he was under disability
during the whole period ………this means that only two and a half months are to be
excluded in computing the period of limitation but even then the suit would
still be time barred by more than twelve months. And finally, as indicated earlier on, the
respondent recovered shillings 100/=
compensation against the appellant during the criminal proceedings in respect
of the same assault.
But the Court fees which he paid to institute this suit is
shillings 74/= only. Thus he could have spent part of the compensation
money to bring this suit and therefore he cannot properly be
heard to say that he did not have the necessary Court fees.”
(2) Appeal allowed.
SALIM V. BOYD AND ANOTHER[1971] 1 EA 550.
FACTS
The applicant applied by originating notice of motion for an order
registering him as the proprietor of a
plot of land on the ground that he had been in
possession of it for twenty
years. The facts
are set out in the judgment.
HELD
(i) application was properly made by
originating notice of motion;
(i) the applicant must prove that he has had
exclusive uninterrupted possession of
the land for 12
years and without fraud;
(iii)the applicant had proved his claim.
Order for registration of the applicant as owner.
[ Peter Wanyoike Gathure v. A. Beverley (1965)
E.A. 514.] EXISTING CASE.
AHMED ABDULKARIM AND ANOTHER V. MEMBER FOR LANDS
AND MINES AND ANOTHER[1958] 1 EA 436
FACTS
These consolidated appeals arose from an
application to the High Court by the Minister for Lands andMines for the
determination of conflicting claims to a plot of land which has been subdivided
into three subplots. The Minister required the land for public purposes and was
willing to compensate the parties entitled for acquiring the plot compulsorily.
Four claimants pursued their claims before theHigh Court; of these, three were
claimants to the three subplots, whilst the remaining claimant put forward a
claim by inheritance to an undivided half share in the whole. It was
established that the father of the fourth claimant had owned the whole plot,
and on his death the fourth claimant and her grandfather became entitled to the
plot as tenants-in-common in equal shares.
The title of each of the other three
claimants derived from the grandfather. Of these three, two being dissatisfied
with the decision of the High Court appealed and claimed that by adverse
possession each had acquired a title to the whole of the sub-plot claimed by
him.
HELD
(i) the
law of limitation applicable in Tanganyika is the Indian Limitation Act,
1908.
(ii)
since there is no express provision in the Indian Limitation Act, 1908,
regarding limitation as between tenants-in-common, the residuary art. 144
applies and therein the doctrine of adverse possession is expressly
preserved.
(iii)
before limitation can run, adverse possession must be established
between tenants-in-common there must be some
overt act amounting to ouster
before possession of a
co-tenant becomes hostile. Corea v. Appuhamy , [1912] A.C. 230 at p. 236.
(iv) before possession can be adverse, there must
be a denial of
another’s right by
an open assertion of a hostile title, with notice
thereof to the other, either express or inferred from notorious
acts and circumstances, and the
burden of proof rests upon the persons claiming title by adverse possession.
(v) in this case the evidence did not
establish a title
by adverse possession, and in
any event, the statutory term
of twelve years had not run.
Appeals dismissed.
AGGARWAL V. DHILLON (1969)H.C.D. n. 165.
FACTS
A tenant in common of land held under a right of
occupancy brought an action asking the court to order the sale of the property. He had let the premises to the
other tenant in common who had failed to
pay the rent. The plaintiff claimed the arrears of rent, and further that
it was disadvantageous for him to
continue as co-owner. He relied on the
English Partition Act of 1868 and 1876. the defendant raised a preliminary
objection arguing
(1) that a
cause of action by way of sale did not lie on the grounds that the partition Acts do not apply in Tanzania:
(2) that the proceedings should have been started by originating summons: and
(3) that the consent of the Commissioner for Lands was a
prerequisite to the bringing of the
action.
HELD
(1) On the
first question, I am of the opinion that
the Partition Acts do apply. Section 2(2) of Cap. 453 provides that the jurisdiction of the
High Court shall be exercised in conformity with the written laws which are in
force in Tanganyika and subject thereto and so far as the same shall not extend or apply, shall
be exercised in conformity with the substance of the Common Law, the doctrines
of Equity and the statutes of general application in force in England on the 22nd
day of July, 1920, and with the
powers vested in and according to the procedure and practice observed by and
before courts of Justice in England according
to their respective
jurisdictions. There was a proviso that
the said Common Law, doctrines of equity and
statutes of general application should be in force only so far as the
circumstances of Tanganyika and its inhabitants
permitted, and subject to such qualifications as local circumstances may
render necessary. As to the approach as to what is a statute of general application and where the application such a
statute may not be implemented, a useful
discussion will by found in
Hearne, J.‘ s judgment in Karimjee Jivanjee & Co. v. Official Receiver of the Government of Tanganyika the Trustee
of the Property of Gordon McDiarmid (1936) E.A.C.A. Vol. 3 at p. 99. In that case an English act of 1888
was applied I was also referred to G.B.
Patel v. D.M. Patel (1939) 6 E.A.C.A. 48
in which the Partition Act 1868 was applied in Kenya, by virtue of Article 4(2) of the Kenya Order in Council 1921. The
authority for applying the Partition Acts to the present circumstances in
Tanzania is not the same, of course, as that relied on in Patel’s case, but
similar reasoning, I think, applies to
the provisions of section 2(2) of Cap. 453. Further, when one considers Cap. 114, there seems to be no doubt. That Chapter
is headed an “Ordinance to apply the English Law of Property and conveyancing
to the Territory.” By section 2(1) of the
Ordinance, the law relating to real and personal property etc. in force
in England on the 1st January, 1922,
shall apply to real and personal property in the Territory in like manner as it
applies to real and personal property in
England, and the English Law, practice
and conveyancing shall be in force. There
is no doubt that the Partition Acts were
an important feature with regard to tenancies
in common. It is clear therefore that they are to be applied to this
country; just as it has always been held, for instance, that the Trusteeship
Act of 1893 is applicable. It the
Partition Acts are to be applied in
general, is there any feature which should be considered showing that
the conditions prevailing in this country disfavor such application? I can
think of no aspect which would preclude
the application of the Partition Act in principle. Possibly it was felt that the consent of the
commissioner has been obtained, and
indeed, in the instant case clause 3 of the Right of Occupancy forbids the disposition of the whole or a portion of
the land or buildings without previous
written consent, nevertheless, that difference has never stood in the way of
applying the English Law of Property procedure and practice of conveyancing in
this country. Therefore, I see no obstacle in applying the Acts …….”
(2) It was argued by learned Counsel for the
defendant that the plaintiff has commenced a rash and expensive course of
action by bringing this suit rather than making investigations and commencing
by a procedure equivalent to an originating summons. Now such a summons would
have covered, before 1922, applications for determinations of questions of
constructions arising under deeds or other instruments and certain
applications under the Trustee Act 1893,
applications for the determination of certain questions arising out of the
administration of an estate or trust and
applications for the
ascertainment of the heir-at-law (etc.) for the purposes of the Land Transfer
act. Such applications were to be made in Chambers, (see Halsbury Laws of England, Vo,. 23, 1912 Ed. P. 186 &
187). It is to be observed from
Halsbury’s Laws of England Vol. 21 1912 p. 846
that the practice and procedure generally is to commence the action by
way of writ and statement of claim. Therefore, in principle I am not of the view
that the procedure adopted in this case
was improper.”
(3) If I am right
that the Partition Acts apply,
then the parties may apply to the court for sale of the common property rather
than partition. It would appear to be a case
under section 4 of the Partition Act
of 1868. As was pointed out in Patel’s case (following an English decision cited
therein), section 4 confers a statutory right on the applicants to apply for
sale, and the court’s discretion [not to order sale] is only exercisable where the person
resisting the sale can show good reason why it should not be ordered. Therefore, unless the defendant can put forward reasons
why a sale should not take place
presumably the application would be granted. At the same time, no such
disposition can be made without prior consent of the Commissioner for Lands.
Here is another example where the courts
must indulge in a dignified tussle with the Commissioner. The question is who
is to have priority. It is suggested that the plaintiff ought to have sought the
Commissioner’s consent before he brought these proceedings. It could be that
the Commissioner might reply that he
would not entertain a hypothetical proposition
and that unless the courts were willing to grant sale rather than partition, he would not consider
whether he should give his consent.
Again it could be said that there would be no good reason for the court to grant sale if it was clear that the
Commissioner would not give his consent.
It was urged that if the Commissioner was adamantly against the sale of the property, that would
be a reasonable ground on which the court could refuse the application. There
is unfortunately no procedure by which this
conflict of interest is to be resolved. It is of interest to note that
in the sale of land under execution proceedings, (see 0.21, r.90 of the
Civil Procedure Code) It is provided
that: - “90 – (1) Where no application is made and disallowed, the court shall
make an order confirming the sale and thereupon the sale shall become absolute;
Provided that where it is provided by any law that a disposition of property in
the execution of a decree or order shall
not have the effect or be operative without the approval or consent of some person or authority other than the court, the
court shall not confirm such disposition under this rule unless such approval
or consent has first been granted.” That
rule appears to indicate that the court should not act by confirming the sale
in those circumstances without the prior consent of the Commissioner. It might well be argued that the situation
with regard to the sale of common
property should follow a similar
pattern. However, I think that in a matter of this nature, the proposal could
put to the commissioner, on the grounds that
a sale would be ordered unless for special reasons the court
thought otherwise after hearing the
defendant’s case. The Commissioner should be invited to
indicate his stand on that basis that the sale would be ordered in all
probability. If there is no objection in principle to the sale of the common property, the court could then go
on to determine the position
between the parties, after which, of
course, formal consent to the disposition
will be necessary. As far as this case
is concerned, as the plaintiff pointed
out, the position vis-s-vis the Commissioner will be a matter of
evidence at the trial. If he fails to satisfy
the court upon the point he conceded that his case
might be defeated. I think that
is correct. I accept that the Commissioner’s consent which cannot, in any
event, be final consent until the case is heard, should not be a
prerequisite to the bringing of the case”.
JELA KALINGA v OMARI KARUMWANA 1991 TLR 67
FACTS
A person who was not allocated a plot of land
sued a person who encroached upon it in trespass. The person
who sued entered into possession
unlawfully. The person who was
sued believed that the plot was his so after
demolishing the structure put up by the other party he proceeded to
erect a cottage thereon. The Court
considered whether trespass could be committed in the circumstances and if so whether there were any defences open to
the tortfeasor.
HELD
(i) Although in law neither of the two parties had a better title than the other,
the foundation of an action for trespass
to land is possession, and it
is not necessary that the plaintiffs
possession should be lawful;
(ii) since Omari had actual possession before the
demolition and subsequent construction by Jela, Omari's action was proper.
(iii)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 I
such a right. 1991 TLR p68.
METTHUSELAH PAUL NYAGWASWA v CHRISTOPHER MBOTE
NYIRABU 1985 TLR 103.
FACTS
The appellant had purchased an unsurveyed
piece of land held under customary law. The sale was approved by the CCM chairman and
ward secretary. The peace included the
land under dispute. Subsequently the
respondent obtained a right of occupancy over the disputed land. Before
the respondent could build thereon the appellant started to build on it
claiming that he was the rightful owner of the land. The respondent successfully sued him in the High
Court. In deciding in his favour the High Court held that the right of occupancy issued to the
respondent was obtained legally and
without fraud, that the appellant had
trespassed on the respondent's plot and
that the right of occupancy issued to
the respondent extinguished all prior rights and interests of the appellant in the said plot.
The Court awarded the respondent
damages in the sum of Shs.287,200/=
because he was prevented to build during the material period. On appeal
the appellant challenged the decision of the High Court mainly on the ground that a granted right of occupancy does not
supersede nor extinguish title over land held under customary law. He also challenged the amount of damages awarded to the respondent on the
ground that there was no evidence that
the respondent was willing, ready and able to build on the plot during the
material period. On the other hand it was argued in favour of the
respondent that the appellant had no
title over the land because the
sale of the land by one Patrick to the
appellant did not have the approval of the village council as required under the Villages and Ujamaa Villages Act, 1975, and therefore,
the sale of the said land was void and
ineffectual.
HELD
(i) A
holder of a right of occupancy under native law and custom does not automatically become a squatter when
an area
is declared a planning area;
(ii) the
interest of the appellant over the land was not compulsorily registrable and by virtue of section 33(1)(b) of Cap.
334 the right of the respondent
vis-a-vis the appellant is not
indefeasible and unimpeachable in the
circumstances;
(iii) (Makame, J.A. dissenting) the sale of the land by Patrick to the appellant was void and ineffectual as it
took place without the approval of the Village Council;
(iv) no
sufficient foundation had been laid for the amount of damages claimed because
there was no evidence that the
respondent was ready, willing and able to build but was prevented
by the appellant during the material period.
Appeal dismissed.
Nominal damages awarded.
MANYARA ESTATE LTD & OTHERS V. NATIONAL DEVELOPMENT CREDIT AGENCY [1970]
1 EA 177.
FACTS
A right of occupancy of land in Tanzania was granted to a Mr.
Coulter by virtue of the Land Ordinance
(Cap. 113) ( ) and in 1955 Mr. Coulter mortgaged his right to secure two loans
from the Land Bank of Tanganyika. In 1964, the
right of occupancy was revoked and an amount of Shs. b 123,940/-
became payable as compensation for unexhausted improvements on the land in
terms of s. 14 ( ),
Land Ordinance. The respondents
are the successors in title to the Land Bank of Tanganyika and are entitled to
the benefit of the mortgage. Mr. Coulter made default in his payment of the
mortgage debt and after the right of occupancy has been revoked, the respondent
brought an action to recover the balance due and judgment was entered in its
favour for the amount of compensation payable for unexhausted improvements. The
four appellants are commercial companies who also obtained judgments against
Mr. Coulter and the point at issue was to determine the rights of the creditors
to this amount of compensation and whether the respondent had preferential
rights by reason of its mortgage. The application was originally filed ex parte
under O. 21, r. 1, but was afterwards served on the other parties.
HELD
(i) by the Court) the procedural irregularity was
formal, caused no prejudice, and the judge was correct to ignore it;
(ii) (by
the Court) the equitable doctrine of tracing assets does not apply in such
circumstances;
(iii) (by
Sir Charles Newbold, P., and Law, J. A.; Duffus, V.-P. not deciding) the charge
created by the mortgage did not attach to the compensation into which the right
of occupancy had been converted;
(iv) (by
Sir Charles Newbold, P. and Law, J.A.; Duffus, V.-P., dissenting) the mortgagee
was not in the position of the occupier, and was therefore not entitled to
receive the compensation.
Observations on the application of English
equitable principles in Tanganyika.
Appeal allowed. Cross appeal dismissed.
PREMCHAND NATHU & CO. LTD. V. THE LAND OFFICER [1962] 1 EA 738.
FACTS
The appellants occupied land under a certificate
giving the appellants a right of occupancy
for ninety-nine years from 1952,
subject to the building conditions contained in the certificate of occupancy.
There was considerable delay in compliance
with these conditions, and certain extensions of time
were granted. Although the appellants
built a godown on the plot they
did not commence construction of the main buildings,
namely shops and flats, and the right of
occupancy was revoked
in May, 1957. The appellan ts
refused to give up possession and the respondent took proceedings for inter
alia possession. The High Court held that the right of
occupancy had been lawfully revoked, and ordered the appellants to
deliver possession to the respondent. On appeal the Court of Appeal dismissed the occupiers’ appeal and on further appeal it was contended
that s. 14 (1) of the Conveyancing and Law of Property Act,
1881, applied to the exercise by the Governor of any rights of revocation and, therefore, since no
notice had be en served in compliance with that
subsection, the purported revocation was invalid. It was further submitted that
as s. 14 (1) of the Act was
imported into the law of Tanganyika, the courts should infer, from all the surrounding circumstances, that
it was intended to bind the Crown
although s. 14 (1) did not bind the
Crown in England.
HELD
There was not in the law of
Tanganyika any necessary
implication that s. 14 (1) of the Conveyancing and Property Act,
1881, bound the Crown, and accordingly
the right of occupancy
was validly revoked without
notice.
Appeal dismissed.
ATTORNEY GENERAL v LOHAY AKONAAY AND JOSEPH LOHAY
1995 TLR 80
FACTS
The respondents, father and son, had acquired
land rights under customary law
recognized as deemed rights of occupancy under section 2 of the Land Ordinance (Cap.113) over 20 acres in Mbulu District,
Arusha Region, which they had cleared in
1943. They occupied and used the land until they were dispossessed during 'Operation Vijiji' under
the Villages and Ujamaa Villages Act, 1975. They successefully sued for the recovery of that land and regained possession of it in 1990
under a Court decree. An appeal against that judgment was still pending in
the I
1995 TLR p81 High Court when the Regulation of Land Tenure (Established
Villages) Act, 1992, was passed. The effect of this Act was to extinguish
customary rights in land acquired before
'operation Vijiji' in 'an established village',
to prohibit the right to
compensation for such extinction, to oust the jurisdiction of the courts,
terminate relevant court proceedings and
prohibit the enforcement of any relevant court decision. Proceedings under the 1992 Act were to be instituted only
in local land tribunals. The respondents
then petitioned the High Court alleging breaches of their fundamental rights and obtained a declaration from the High
Court that the 1992 Act was invalid for inconsistency with the Constitution in
that its provisions violated the petitioners' rights of equality before the
law, of freedom from deprivation of property without fair compensation, and of
access to the courts to protect their
rights. The Court ordered the offending Act to be struck out of the statute
book. The Attorney General appealed to the Court of Appeal on the grounds that
these holdings were erroneous, that
customary land rights were not
forms of property protected by
the Constitution and that although certain sections of the 1992 Act
violated the Constitution the whole Act
could not be invalidated on that ground alone.
HELD
(i) Customary or deemed rights in land, though by their nature are nothing
but rights to occupy and use the land, are nevertheless real
property protected by the
provisions of Article 24 of the Constitution of the United Republic of Tanzania
and their deprivation of a
customary or deemed right of occupancy without fair compensation is prohibited
by the Constitution;
(ii) Fair compensation is not confined to unexhausted improvements; where there are
no unexhausted improvements but some effort has been put into the land by the
occupier, that occupier becomes entitled to protection under Article 24(2) of
the Constitution and fair compensation is payable for deprivation of property
and land; (iii) Sections 3 and 4 of the 1992 Act which provide for extinction of customary rights in
land but prohibit the payment of compensation with the implicit exception of unexhausted improvements only
are violative of Article 24(1)
of the Constitution and are null and void;
(iv) The provisions of the 1992 Act relating
to extinction of customary rights were
not applicable to the respondents because their customary rights in land had
been extinguished before the 1992 Act
and before the basic human rights under the constitution became enforceable in
1988 by virtue of section 5(2) of the
Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984;
(v) Act No 22 of 1992 cannot be construed to be discriminatory within the meaning of
Article 13(5) of the Constitution because that
Act was passed to deal with a problem peculiar to rural areas;
(vi) The act of extinguishing the relevant customary or deemed rights of occupancy did not amount to acquisition of
such rights;
(vii) Wherever
the Constitution establishes or permits the establishment of
any other institution or body with executive or legislative or judicial power,
such institution or body is meant to
function not in lieu of or in derogation of the three central pillars
of the state, but only in aid of and subordinate to those pillars;
(viii) Any
purported ouster of
jurisdiction of the ordinary courts to deal with any justiciable dispute
is unconstitutional;
(ix) A court has inherent power to make a consequantial order striking out an invalid statute from the statute book;
(x) Where the unconstitutional provisions of a statute may be severed leaving the
remainder of the statute functioning then the court should uphold the remainder of the statute and
invalidate only the offending
provisions;
(xi) With regard to s 5(1) and (2) of the 1992 Act, which prohibits access to the
courts or tribunal, terminates proceedings pending in Court or tribunal and prohibits enforcement
of decisions of any court or tribunal concerning land disputes falling within
the 1992 Act that entire section is unconstitutional and therefore null and
void as it encroaches upon the sphere of
the judicature contrary to Article 4 of the Constitution and denies an
aggrieved party remedy before an impartial tribunal contrary to Article 13(6)(a) of the same Constitution.
Appeal allowed in part
RUNDA COFFEE ESTATES LTD V. UJAGAR
SINGH[1966] 1 EA 564.
FACTS
The plaintiff, as freehold owner of a farm,
sued for
possession of a combined shop and
house erected on it in stone some 10
years previously by and at the expense of the defendant’s father.
As eldest son the defendant occupied the premises
continuously before and after his
father’s death in 1962.
The defendant relied on contractual licence to
build and remain in exclusive possession until compensation was paid according
to a formula agreed verbally between his
father and the managing director of the
plainti ff’s first predecessor in title. The
terms of the licence were
recorded in English, which neither the
defendant nor his father could speak,
at a meeting attended by the plaintiff’s second predecessor, after the building was
complete, in December, 1955, but before the second predecessor became the
registered owner. The minutes of
that meeting were ambiguous as to
whether the licence was personal to the
father or would continue until compensation was paid or until the farm was sold. A sale of the land with notice of
the right to compensation to the plaintiff’s third predecessor
took place in
1963. The third predecessor sold the land with notice of the obligation
to the plaintiff in 1964. The defendant
also pleaded that the
plaintiff was equitably estopped
from terminating the licence without
compensation founded on the father’s incurring
expense in the expectation of being allowed to stay. The
trial judge awarded possession on payment of compensation to the estate of the
father, holding that the obligation to pay
compensation was enforceable u nder
s. 40 of
the Transfer of
Property Act. On appeal it was
argued for the appellant that the licence was personal to the father or by his
own terms was overreached on the first sale of the farm in 1956 and that there was no clear
representation that could found an estoppel in favour of the son in addition
to the father. The respondent argued
that the licence by its terms was
irrevocable until compensation was paid
and that
this contemplated the father’s
successors being able to enforce the licence to the extent permitted
by s. 40 of the Transfer of
Property Act. The respondent also
contended that notice to the plaintiff of the liability to
pay compensation together with an
equity based on the costs of the building and improvements incurred with the expectation of
being allowed to stay made it
inequitable for the plaintiff to recover
possession without paying
compensation at the
rate previously agreed.
HELD
(i) as a matter of fact the licence was personal
to the father and any equitable estoppel that could arise was only in favour of
the father and not the respondent;
(ii) if the benefit of the liability to
compensation could devolve to the respondent by operation of law and by the
fact of possession it amounted to an interest in land not a licence, and s. 40
of the Transfer of Property Act could not apply.
Appeal allowed.
BI MUKAGILAYA BITASIMBILE V. RAPHAEL S/O
RUBILI(1968)H.C.D. n. 349.
FACTS
Plaintiff
sued for return
of the purchase price paid
on a clan
shamba wrongly sold
to her by defendant’s
aunt, and for
compensation for a
house and other
permanent improvements. She
effect thereon. It
was not disputed
that plaintiff had
paid defendant’s aunt
for the said shamba.
It was further
established that defendant’s
mother had taken proceedings in
1954 to declare
the sale void.
In those proceedings
the District Commissioner’s Court
had held the
sale invalid but
allowed defendant’s aunt
to remain in the
shamba until her
death; thereafter, the
shamba was to
become the property of
defendant’s mother. Plaintiff
remained on the
shamba until the
death of defendant’s aunt.
Defendant, as successor
to her mother’s
rights, recovered possession from
the plaintiff who
started these proceedings.
HELD
(1)
It had already
been decided in
the earlier action
that plaintiff was entitled
to be refunded
her purchase money;
but she is
not entitled to
be compensated for
improvements in the
form of houses
and permanent crops
because she was aware,
at the time
of improving the
shamba, of the
dispute over her
title.
2)
Plaintiff should remain
in possession of
the shamba until
the purchase price she
had paid is
refunded to her.
(3)
If plaintiff dies
before receiving the
purchase money, the shamba
should then become
the property of
the defendant, and no
heir of
the plaintiff would
be entitled to
claim the sum,
“for the right
of the plaintiff to
remain on the
shamba pending the
receipt of the
money would be
personal to her.”
LWEIKIZA V. NDYEMA (1971)H.C.D. n. 326.
FACTS
The
respondent Feliciana originally
sued the appellant
and her (Feliciana‟s) sister
jointly to redeem
a clan shamba
which her sister
had sold to the
appellant without her
knowledge and consent contrary
to Haya laws and
customs. It was
established that when
she became aware
of he disposition she
promptly brought the
action. The primary
court disallowed the claim,
but on appeal
the district court
reversed the decision
of the lower court
a nd made an
order for redemption
upon the refunding
of the purchase price
and upon paying compensation
for improvements done
to the land by
the appellant. Dissatisfied
with the decision
the appellant appealed to
the High Court.
In his memorandum
of appeal, h e
alleged that the respondent
was not entitled
to redeem the
shamba because that shamba
had been attached
by a court
order and that
a proclamation of sale
was duly issued
when the respondent
did not pay
the debt. This allegation of
attachment was not
prove d.
HELD
(1)
“The learned District
Magistrate held that on redeeming the
shamba the respondent
should refund to
the appellant Shs.
105/ being the purchase price and should also pay Shs. 650/- being
compensation for improvements done to the shamba by the appellant………
(2) “I am of the view that the appellant should
not be allowed to recover compensation in respect of improvements which he
carried out after becoming aware that the title to the land was in dispute. I
think that where, as in this case, a
person carries out improvements to the land after he becomes aware that
proceedings have been instituted to dispute the title to he land, then be
carries out such improvements at his own risk and he must be deemed to be
prepared to take the consequences following from the dispute.”
(3) (obiter) “Had the sale been concluded by an
agent of the court, after the period specified in the proclamation for sale had
duly expired, then the position might be quite different.”
(4) “Appeal dismissed the order of the District
court for compensation in respect of improvements is therefore set aside …….
The respondent is entitled to redeem the suit shamba on refunding the purchase
price only.”
REGENA V. MOHAMED(1971)H.C.D. n. 332.
FACTS
The appellant claimed damages from the respondent
for destroying crops she planted on land she alleged was allocated to her by
one Omari Athumani. Both the primary and district magistrate courts found that
the land allocated to the appellant was not the disputed land and that the
appellant had trespassed on the respondent‟s land. They, therefore, concluded
that she was not entitled to
compensation for the crops destroyed by the respondent.
HELD
(1) “Now while in principle it is true that a
person who trespasses on another man‟s land does so at his own risk. I do not
think this rule can be used as a vehicle of oppression or of willfully injuring
another person. Before
an occupier can
take advantage of
the operation of the
rule he must
have demonstrated by
word or action
that he disapproved of the
trespasser‟s intrusion into
his land. There
must be an open
protest and disapproval
of the trespasser‟s
actions before the occupier
of the land
can deprive the
trespasser of his
entitlement to compensation for improvements carried
out on the
land. This was clearly the
view held by
the Central Court
of Appeal in MainaHela
d/o Semkini Mtumbo d/o
Sekwande v. , Appeal
No. 5 of
1955, where the
Court said:“A person who
cultivates another person‟s
land after having
been refused permission by
the latter to
use the land
does so at
his own risk.
If the lawful occupier
subsequently discovers the
action of the
trespasser, such trespasser can
have no claim
to the crops
which he has
planted or other unexhausted improvements
which he has
effected on that
land.” With respect, the
principle enunciated here
is sound and,
in my judgment,
a correct view of
the law. And
applying this principle
to the facts
of the present case
there can be
little doubt that
the appellant was
entitled to some compensation
for the crops
she had planted
on the land
in dispute. On the
evidence on record
it is not
in dispute that
the respondent did
not at any time
protest against the
appellant cultivating and
planting on his land.
Although he could
have stopped her
cultivating the piece
of land in question
he did not
do anything about
it until very
late, when the appellant was about
to harvest her
crops. Would such
a person acquiesced in the
who has
clearly trespass be justified
in willfully destroying
the trespasser‟s crops? I
do not think
he should be allowed to
do so. If he
does as
the respondent did
in the instant
case, he shall
in equity be
made to compensate the
injured party for
the damage caused.
Denying the appellant her
rightful entitlement to
compensation would in
my view amount to countenancing the respondent‟s
reprehensible and destructive acts. This
court cannot and
will not countenance any such
conduct on the part of the
respondent …..
(2) countenance Appeal dismissed.
JAFENIA S/O SHIMBA V. MUSUKA S/O
NYANDA(1968)H.C.D. n. 10.
FACTS
Plaintiff
sued for possession
of property possessed
by defendant. There
was conflicting evidence as
to whether plaintiff
had sold the
land to defendant
or had merely sold
two houses on
the property and
given him permission
to cultivate the land,
accused constructed a
house upon the
land. The Primary
Court ordered that plaintiff
pay defendant Shs.
1,603/- before retaking
possession. This award was
reversed by the
District Court.
HELD
(1)
Under Sukuma Law,
plaintiff could not
sell his holding
or enter into any
transaction in which
the land was
the subject, but
could only lend
the land. [Citing Cory,
Sukuma law and
Custom, Rules 380,
414.]
(2) Defendant
knew he
had only a
right to cultivate
the land, and
the construction of
the house was unjustified.
Sanction should not
be given to
this illegal act
by permitting defendant
to remain in
possession for life
as suggested by
his counsel.
Appeal dismissed.
NYAGOBRO GINONGE V. CHAGHA GASAYA (1968)
H.C.D. n 409.
FACTS
Appellant
claimed the disputed
plot of land
as owner thereof.
It was established that about
ten years before
the reallocation she
had left the
disputed land and had
gone to live
in another area
at a considerable
distance there from,
though she had left
standing on the
land a hut
“of no great
value”. There was
no evidence that
during the period
of absence the
land was worked
or developed by her.
The Village Committee
allotted the land
to respondent as a result
of which appellant
instituted these proceedings
alleging that the
land was hers
and that respondent was
a trespasser upon
it. The Primary
Court, Nyamawaga, gave
judgment in her
favour; this judgment
was reversed by
the District Court,
North Mara.
HELD
(1) It
would be neither
good law nor in
accordance with public
policy to allow
a plot holder
to depart from
the land for such
a number of
years with the
result that the
land may lie
fallow or revert
to bush.
(2)
Once it becomes
established (as in
the instant case)
that there has been
no real animus
revertendi, even though
a hut remains
thereon, the land merges
in the common
public seeking property
to develop.
Appellant’s
claim dismissed
ROBERT S/O MWAMASO V. MWANGWALA S/O
MBYUTA(1969)H.C.D. n. 13.
FACTS
The
plaintiff sued the
defendant for recovery
of a shamba.
The defendant alleged that
the shamba had
been awarded to
his grandfather in
1929 in exchange for
other land. The
plaintiff alleged that
the land had
not been a part
of the
exchange and had
belonged to his
grandfather’s brother. There
was evidence that the
shamba had been
cultivated continuously since
1929 by the defendant’s grandfather,
then his father,
and then the
defendant and that
no claim had been
made until the
plaintiff attempted to
cultivate it in
1964. The trial court
gave judgment for
the defendant on
the ground of
continued cultivation and the
fact that no
claim was made
for 35 years.
On appeal the district
court reversed, holding
that long cultivation
gave the defendant
no right to the
land and relying
on statements made
to the magistrate
by the villagers out of court.
HELD
(1)
The district court
erred in taking
into account statements
made outside of court
which were not
a part of
the evidence and
had not been subject
to cross-examination.
(2)
Under the customary
law of limitation,
an action for
the recovery of possession
cannot be brought
if the land
has been continuously
occupied by the possessor
for more than
12 years. In
the present case
the occupation by the
defendant, his father
and his grandfather
should be taken
as one continuous occupation
by one of
the parties.
Appeal
allowed.
MUKYEMALILA AND THADEO V. LUILANGA(1972)H.C.D. n. 4.
FACTS
The respondent inherited the land in dispute from
his deceased father. From 1954 he allowed the first appellant to use it to grow seasonal crops on it. The latter
eventually sold the land to the second appellant. The respondent sued for the
recovery of his land. The primary court found against the respondent on the
ground that the land was no longer his because
he had disposed of it in favour of taking additional evidence, found
that the disposition in 1954 was not an
outright gift to the appellant but a
limited one in the sense that the appellant was only allowed to use the land
for growing seasonal crops thereon. He,
therefore, reversed the decision and order
that the respondent be re-possessed of the land. In the high court the
appellants argued that the respondent’s claim to the land was time barred under
the Magistrates’ Courts (Limitation of Proceedings under Customary Law) Rules,
1964 and that the magistrate erred in
recording additional evidence on the appeal.
HELD
(1) “Paragraph 2 of the said Rules provides that;
- No proceedings for the enforcement of a claim under customary law of nature
shown in the second column of the Schedule here to shall be instituted after
the expiration of the corresponding period shown in the third column of that Schedule,
such period being deemed to commence on the day when the right to bring such proceedings first
accrued or on the day, when these Rules come into operation, whichever is the
later. And item 6 of the relevant Schedule provides. ‘Proceedings to recover
possession of land ….. 12 years’. It seems clear from the evidence of the respondent that he commenced the proceedings only
because the appellant Mukyemalila sold
the suit land to the second
appellant Thadeo. In other words, so
long as the appellant Mukyemalila was
occupying the land with the permission of the respondent, the dispute
did not arise. The limitation period therefore cannot be said to have started
running from 1954 when respondent
allowed the appellant Mukyemalila to occupy the land. It started to run when Mukyemalila sold the
land to the second appellant Thadeo.”
(2) “It is apparent from the evidence of the respondent that he
brought the proceedings of the land in favour of Thadeo. In those circumstances
because the period between the
institution of the proceedings and the time the action accrued or the time the
Limitation Rules were made is less
than 12 years.”
(3)”The District
Court magistrate stated in his judgment that he recorded additional
evidence from [the] witness in the
exercise of his powers under section
17(a) of the Magistrates’ Courts Act. That section provides: - “17. In
the exercise of its appellate
jurisdiction, a district court shall have power – to direct the primary court to take additional evidence and to certify the same to the district court
or, for reasons to be recorded in writing,
itself hear additional evidence”. Just before receiving this additional
evidence the learned district court
magistrate stated: - “I feel to record
the additional evidence of ex headman Miti”. It is clear that there was not sufficient
compliance with the provisions of the
section quoted above because the district court magistrate recorded no reasons
for taking this course. However, looking
at the record it seems that there was
good ground for taking such additional evidence because it gives some idea of
the background history to the suit land while the evidence of the parties and
their witnesses related mainly to contemporary matters. Had the learned District
Magistrate followed the correct procedure therefore, I am satisfied that he
would have recorded a sufficient reason
for taking additional evidence from this witness.”
(4) Appeal dismissed.
PASKAZIA D/O BWAHAMA V. ALOYS
CYRILO(1967)H.C.D. n. 117.
FACTS
Plaintiff
sued for the
redemption of a
clan shamba under
the Buhara customary law. The
land allegedly was
sold by plaintiff’s
brother, acting as
administrator of plaintiff’s father’s
estate, in 1937
to defendant’s father,
from whom he
inherited it in 1953.
The sale price
was Shs. 3000/-.
The signatures on the documents
of sale appeared to
have been forged.
HELD
(1)
According to the
customary law of
the Haya tribe,
land is considered
to be the
joint property of
a clan and
may be redeemed
by a member
of the clan if
it is sold
to a stranger
by an individual
member. However, suits
for redemption should
be brought within
three months of
the date of
sale or of the date the
interested clan member
first hears of
the sale. Citing
Hans Cory and
Hartnoll, Customary Law of
the Haya Tribe.
(2) Since the
signatures on the
sale documents were
forgeries, and since
the sale price
appears to have
been below the value
of the land,
the evidence supports
a finding that
no sale took
place. Thus the question
of redemption of
the shamba would
not arise.
(3) In
order to support a
claim to the
property based upon
adverse possession, defendant
must show that he
has been in
continuous and uninterrupted
possession of the
shamba for twelve years
or more.
(4)
If he has
not obtained title
to the property
by adverse possession, defendant
would nevertheless be
entitled to fair
compensation for any improvements
he may have
made. The appeal
was allowed and
the case remitted to
the District Court
the court which
had heard the
first appeal of the
case) for the
trial of the
issue of adverse
possession.
SHABABI MMASAI V. HASSANI MCHARO(1967)H.C.D. n. 329.
FACTS
Plaintiff
allowed defendant to
occupy and cultivate
a small piece
of land, which was
at the time
all bush. Over
a period of
eleven years, defendant
planted bananas and
other permanent crops,
developing the land
to a value
of about Shs. 255/-
Plaintiff then claimed
possession back from
defendant.
HELD
Plaintiff is
entitled to Shs.
272/- as reasonable
compensation for the development of
the land, a
sum which includes
the costs of
his suit. (The
customary law involved
was not specified
by the Court.)
The Court noted,
Obiter: Had plaintiff’s
action been delayed
one more year it
would have been
time-barred under the
Customary Law (Limitation
of Proceedings) Rules 1963.
MZEE WALIPESA V. RAJABU MGEYO (1967)H.C.D. n. 24.
FACTS
Defendant
inherited the land
in question from
his father in
1948. However, in his
absence the land
was taken from
the person caring
for it and
“given” by the
District Council to
one Kibenga. Plaintiff
in this suit
is a successor
in interest to whatever
title Kibenga had.
In 1965 plaintiff
discovered that defendant’s
servant had taken possession
of the land
and filed this
action to recover
it. On the
first appeal, the District
Court held that
defendant should look
to the district
Council for remedy and
also held that
his claim to
the land was
time-barred.
HELD
(1)
Defendant’s claim could
not be time
–barred, for this
action was not brought
by him but was
brought by plaintiff
for repossession.
(2)
Moreover, the period of
limitation for any
claim by plaintiff
would be 12
years from 29th
May, 1964, the date
the Customary Law
(Limitation of Proceedings)
Rules, 1963, came into
effect.
(3) Defendant
need no seek
remedy in the
District Council; there is
no reason for
a court to
perpetuate the error
of the Council.
Primary Court judgment for
defendant restored.
OMOLO S/O OMOLO V. OKENGO S/O OBUTO(1968)
H.C.D. n. 2.
FACTS
Some time
before 1959 plaintiff
entrusted defendant with
a cow which
was subsequently stolen
together with other
cattle belonging to
defendant. Some, but
not all, of the
cattle stolen were recovered, and
defendant had received
some compensation for
others. This action
was brought in
1965, for return
of the cow.
HELD
1)
The assessors advise
that under Luo
customary law “If
only part of the
beasts are recovered
the person in
whose custody the
beasts are stolen will
keep some beasts
for himself but
give the rest
to the person
who entrusted the beasts
to him.”
(2)
Rule 2 of
the Customary Law
(Limitation of Proceedings) Rules, 1963,
provides that the
period of limitation
commences on the
day when the right
to bring the
proceedings accrued or “on the
day when these
Rules come into operation
whichever is later.”
The rules came
into operation on
29th May, 1964, and
the period of
limitation is three
years. Thus, the
suit is not
time barred.
Plaintiff’s
appeal allowed and
defendant ordered to
return one cow
to plaintiff.
SWALEHE V. SALIM(1972) H.C.D. n.140.
FACTS
The appellant sought to evict the
respondent whom he alleged to have encroached upon his shamba. The parties occupied adjoining plots. The
appellant contended that the respondent encroached upon his land to the extent
of 37 acres. When the dispute first
arose some village elders were summoned
to the shamba where an indaba was held. Therese elders told the trial court
that they heard the respondent admit encroaching upon his neighbour’s (the appellants) land. The indaba then
declared the disputed land to be the appellant’s and apparently a document was drawn up
to show the boundaries of the respective
shambas of the parties. This document
was not produced at the trial and despite weighty evidence to
support his claim, the appellant lost at
the trial and on his first appeal. The respondent called fewer witnesses than did his adversary and not all of those
supported his case. Most of them knew little or nothing about the dispute and
they said so in court.
HELD
(1)”The appellant’s magnanimity seems to be the
real source of his trouble on the whole. For, when the indaba resolved that the
respondent had encroached upon him, the appellant agreed to let the respondent
occupy as a mere invitee. Little did he
know that his invitee would turn against
him and claim the shamba when called upon to vacate. On this aspect of the dispute, the learned
appeal magistrate observed; “Appellant
insists only that he lent the piece of land to respondent. But it
must be remembered that even if appellant lent his piece of land to
respondent, but respondent has developed it
…….” This was clearly misdirection on his part, because, as this court has consistently held, no invitee
can exclude his host whatever the length of his occupancy (Mkakofia Meriananga
v. Asha Ndisia (1969) H.C.D. n 204).
That the respondent was occupying and
had even made unexhausted improvements
on the shamba was not reason for him to oust the appellant who had invited him
ex gratia .”
(2) “The
record clearly shows that the appellant proved his case at the trial and that undue regard was had to
his failure to produce the document drawn at the indaba. He lost his first appeal because the appeal
magistrate misdirected himself in law while at the same time falling into the
same mistake of placing undue importance on the document which was not all that
crucial really.”
(3) Appeal allowed with costs. Respondent to give
vacant possession of the shamba to the
appellant and if there are permanent crops grown by the respondent, appellant to compensate him
at the appropriate rate.
MKAKOFIA MERIANANGA V. ASHA NDISIA (1969)
H.C.D. n. 204.
FACTS
Marusuku,
the respondent’s husband,
had allowed his
brother, Meriananga, the appellant’s
husband, to occupy
and use a
portion of his
land. This was about
thirty years before
the suit. Meriananga
had then divorced
his wife and gone
away leaving her
the land to
occupy and cultivate.
After sometime the respondent, Asha,
brought a suit
before the court
to have her
title to the
land confirmed. The Primary
Court held that
while Marusuku had
been the fist occupant
of the land
and had then
allowed it to
be used by
Meriananga, nevertheless, Asha ought
to have brought
the case within
12 years under
rule 2, of the
Customary Law (limitation
of Proceedings) Rule
1963 G.N. 311 of
1964. the suit
was dismissed .
On appeal, the
District Court allowed
the appeal reversing the
lower court’s holding.
Mkakofia appealed stating
it would be unfair
to ask her
to leave the
land, on the
grounds, inter alia,
that she had used
the land for
more than 30
years.
HELD
(1)
Rule 2 of
the Limitation Rules
……. Very clearly
shows that no proceedings for
the enforcement of
a claim of
this of 12
years; such period being
deemed to commence
on the day
when the right
to bring such proceedings first
arose or on
the day when
these rules came
into operation, whichever is
the later. Therefore,
the period of 12 years
commenced on the 29th
May 1964, the
date when the
Rules came into
operation, because that was
the later date,
the right to
bring the proceedings
having occurred sometime earlier.
If that be
so, then the
suit was not
statute barred. Perhaps
I should point out
that under Rule
3 (4), the
Primary Court can
in its discretion admit any
proceedings even after
the expiration of
the period of
limitation has expired, if
it is satisfied
that he person
bringing such proceedings
was unable for sufficient
cause to bring
the proceedings earlier.”
(2)
“The District Court did
not consider what
I think was
the Primary Court’s
main aim in
dismissing the suit, namely
that Mkakofia should
not be disturbed
after 30 years
of occupation. But in
any event, I
think, the district
Court would have
come to the same
conclusion. If Asha
and Marusuku had
opened up the
land and allowed Meriananga and
Mkakofia to occupy
part of the
land as a matter of
family arrangement, then while
Asha occupied adjacent
land in dispute,
there was no way
in which Mkakofia
could assert ownership
of land unless
she had taken some
steps to deal
with it against
the interest of
Asha. As far
as I can see,
there was no
evidence that Mkakofia
ever did so.
Accordingly, I cannot say that
she acquired the
free title to
the land when
her husband and
her-self had only been
allowed to occupy
as tenants at
will. Accordingly Asha’s
right to the land
is confirmed.”
(3)
Asha should have
possession of the
land. “But I would
point out that
if Mkakofia has
left improvements on
the land of a
permanent nature, she
may sue Asha
for the value
of such improvements. Moreover, in
accordance with customary
law, if she
has any crops
growing on the land,
she shall be
allowed to harvest
them. ''
(4)
Appeal dismissed.
LEMAYANI V. MHAVI (1972) H.C.D. n. 149.
FACTS
This was second appeal against a judgment of a
Primary Court awarding possession of a parcel of land to the respondent. The
appellant’s case was that his father moved to the land in 1958 and gave it to
him as his inheritance in 1967. He stated that, according to custom,
inheritance is given in the presence of the whole family but no one was present
in this case. The respondent gave
evidence that he lent the land to appellant’s father in 1960. The later asked
for an extension of the term in 1964 and
it was granted; he died in 1967 and the
appellant was requested to vacate. The respondent was supported by several
witnesses. Both the lower courts found
the facts as the respondent
alleged.
HELD
(i)“The
only point taken at the hearing of this appeal was that since the appellant
was in possession for more than thirteen
years he should not be disturbed. He did not prove that he inherited the land legally from his father so that the period of his
father’s possession could count in his
favour. Moreover, the trial court found that the father went into possession in 1960 so possession adverse
to the respondent was not more than eleven years, and this was not [long
enough] for [appellant] to establish his
claim.”
(2) Appeal dismissed with costs.
ABEDI SHEKULWAVU
V. SALIMU JUMA (1968) H.C.D. n. 88.
FACTS
Under
the customary practice
of “gunda” in
Lushoto, a piece
of land was
given to the local
ruler. Defendant, a
traditional chieftain, accordingly
had lived on a
shamba for fifty
years; his family
had farmed the
same shamba for
twenty-five years before that.
With the abolition
of traditional Chieftainship
in 1962, plaintiff brought proceedings
on behalf of
his clan to
recover the shamba
from defendant.
HELD
The
clan gave up
the land permanently.
It would be
“utterly unfair and unreasonable
to disturb (defendant’s)
long occupation of
the shamba.” Plaintiff's
claim dismissed.
PAULO FERDINAND V. FRUGENCE BIGUTU (1968) H.C.D.
n.29.
FACTS
Deceased
made a will
three weeks before
his death which
purported to revoke an
earlier will. The
parties contest the
validity of the
second will. Paulo,
the disinherited heir,
clears the second
after testator’s death.
He contended that
whatever the reasons for
his disinheritance he
should have been
afforded an opportunity
to rebut them, and
because such opportunity
was not given
to him the
latter will is invalid.
HELD
(1)
Government Notice No.
436/1963, clause 35
provides; “The disinherited
heir should be
given an opportunity
of clearing himself
before the testator
or family council.”
(2)
The provisions of
clause 35 are
not mandatory, so
Pulo cannot, as a
matter of right,
have the will
set aside.
(3) A disinherited
heir can also,
as Paulo has
done here, apply
to a court
for a decision
as to whether
the disinheritance was
justified. On the
basis of the
evidence before the
court, the disinheritance was
justified.
ROBERT F. LUGAKINGIRA V. LEONARD F. LUGAKINGIRA
(1967) HCD. n.163
FACTS
This
action concerned the
division of a
house and plot
among the heirs
of the deceased. The appellate
court first heard the
case conceded that
according to Haya customary
law, the house
and property were
to be physically
divided among the heirs.
However, the court
noted that the
dispute had led
to much animosity
among the claimants
and that criminal
proceedings had arisen
from the quarrels. Therefore, The court
decided that a
“new remedy” was
required and ordered
that the property
be sold and
the proceeds distributed
to the claimants.
HELD
Customary
law originates from
the repetitive decisions
of persons who, by
general consent, act
as arbiters. As
conditions change, new
concepts may replace the
old in such
decisions. Citing Cory
and Hartnoll, Customary
Law of the Haya
Tribe, introduction; Kabaka
v. Kitonto, (1965)
E.A. 278. However
a custom derives its
validity from the
assent of the
vative community, and
changes may not be
imposed by a
court of law.
Citing Eskugbayo Eleko
v. Nigeria Government,
(1931) A.C. 662,
673; Marko Kajubi
v. Kulanima Kabali,
11 E.A.C.A. 34. Therefore,
the order of
sale was incorrect
and the property
itself must be
distributed.
DIDAS RWAKALILA AND 3 OTHERS v THOMAS MATONDANE 1992 TLR 314
FACTS
This was a case over a disputed shamba filed
in the
Primary Court of
Nshamba in G
Muleba District on 5/6/1986. The parties found their way to Muleba District Court, the High Court and the Court of
Appeal. The history of the
disputed shamba is substantially narrated in the judgment. The issues
contested in the Court of Appeal are whether a person who redeems a mortgaged clan shamba
becomes the owner of the
H shamba; whether there was
adverse possession by the respondent and whether or not the disputed shamba belonged to the
respondent.
HELD
(i) The fact that
the respondent redeemed the
shamba and the fact that he
had I
been in continuous possession of
the same since 1966 did not make him its owner;
(ii) Decision to divide the shamba among the
appellants was equitable.
Order accordingly.
AMIRI LUDONGO V. HIJA GAMBA(1968) H.C.D. n. 497.
FACTS
The
appellant and respondent
occupied contiguous shambas
on a mountain slope. The
lower boundaries of
their shambas were
marked by the
bank of the Ruvu
River. At a
recent date, the
river shifted its
channel so that
it flowed further
down the slope,
forming a strip of
newly uncovered land
contiguous to the
existing shambas of
the two parties.
Both parties claimed
that whole strip
belonged to them.
HELD
(upholding
District Court)
(1) The new
land did not
accrue to either party.
(2)
The parties, or
anybody else were
at liberty to
apply to the
appropriate authorities to obtain
the new land
and their application
would presumably be considered
as a normal administrative
decision. (Note; It
does not appear
from the facts whether
the land in
question was held
for a right
of occupancy or
under the customary law of the
Morogoro area).
IBRAHIM LIHOHA V. SAIDI MEDA (1967) HCD. n. 23.
FACTS
Plaintiff
and defendant are
owners of adjacent
land holdings which
are separated by a
stream. For no
apparent cause, the
stream began to
crode defendant’s land and
to deposit soil
on plaintiff’s side
of the stream.
Over a period
of several years about
one-half acre was
eroded and deposited
in this manner.
Defendant claimed the right
to follow the
soil and began
to farm the
land which had
been deposited. Plaintiff filed
this action claiming
the land.
HELD
Under
Hehe customary law,
if the eroded
area is considerable
and is gradually deposited
as an addition
to another’s property,
the original holder
of the eroded land
can “follow” it
and he retains
ownership. The court
distinguished this result from
that reached under
Roman Law where
gradual deposits normally
ensure to the
benefit of the
owner of land
contiguous to the
deposit. It compared
the result to the
Roman Law concept
of ager limitatus .
ADMINISTRATOR-GENERAL , ZANZIBAR, ADMINISTRATOR
OF ESTATE OF TOPAN KARSAN RAMJI ALIAS
RASHID KARSAN RAMJI, DECEASED V. KULSAM
FADHIL MUSSA AND FIVE OTHERS (1969) HCD. n. 80.
FACTS
The
parties, children of
the deceased, claimed
a piece of
property formerly belonging to
the deceased. The
Administrator General is
the plaintiff in
form only, bringing the
action in court
for instruction on
the question of
which of the disputants should
receive the property.
Mohamed Hussein claims
the property by way
of a deed
of gift, made
to him by
the deceased, his
father, in 1960. The
deed of gift
was duly witnessed,
but he deceased died
without registering it as
required by Zanzibar
law. Mohamed’s sister
argued that the gift
was invalid for
non-registration, and therefore
that the property
was properly part of
the deceased’s estate,
to be distributed
among all the
heirs. One Ahmed Juma
testified that he
had been a
tenant on the
property since 1960, that
the deceased in
1960 told him
that he had
given the property
to his son and
that the rent
should thenceforth be paid to
the son, and
that the had since
that time paid
the rent to
the son who
issued receipts in
his own name. one
of the witnesses
to the deed
of gift testified
as to its
genuineness. The parties were
Muslims, members of
the Shia sect.
Administrator-General,
Zanzibar, Administrator of
Estate of Topan
Karsan Ramji alias Rashid
Karsan Ramji, Deceased
v. Kulsam Fadhil
Mussa and Five Others,
Civ. Case 11A-Z-66,
7/2/67, Kimicha Ag. C. J. The parties,
children of the
deceased, claimed a
piece of property
formerly belonging to the
deceased. The Administrator
General is the
plaintiff in form
only, bringing the
action in count
for instruction on
the question of
which of the disputants should
receive the property.
Mohamed Hussein claims
the property by way
of a deed
of gift, made
to him by
the deceased, his
father, in 1960. The
deed of gift
was duly witnessed,
but the deceased
died without registering it
as required by
Zanzibar law. Mohamed’s
sister argued tat
the gift was invalid
for non-registration, and
therefore that the
property was properly part
of the deceased’s
estate, to be
distributed among all
the heirs. One
Ahmed Juma testified
that he had
been a tenant
on the property
since 1960, that the
deceased in 1960
told him that
he had given
the property to his son and
that he had
since that time
paid the rent
to the son,
and that he
had since that time
paid the rent
to the son
who issued receipts
in his own
name. One of the
witnesses to the
deed of gift
testified as to
its genuineness. The
parties were Muslims, members
of the Shia
sect.
HELD
(1)
The validity of
gifts and the
distribution of estates
is governed by Muslim
law, where the
deceased was a
Muslim. “In civil
matters the law of
Islam is
an hereby declared
to be the
fundamental law of
the Republic,” under Cap.
3, s. 7.
(2)
Mulla’s Principles of
Mohammedan Law, par.
150(3), states; “If it is proved
by oral evidence
that a gift
was completed as
required by law,
it is immaterial that
the donor has
also executed a
deed of gift,
but the deed
has not been registered
as required by
the Registration Act.”
(3)
According to Shia
law, the requirements
for a valid
gift are: (a) a
declaration of the
gift by the
donor; (b) an
acceptance of the
gift by the
donee; and (c), a
delivery of possession
to the donee.
Since these requirements complied with
here, the gift
was valid, and
Mohamed Hussein is
entitled to the property.
LEKANSIO V. LEKASIO 1970) HCD. n. 238
FACTS
The
respondent sued his
second son and
another person for
a portion of a
kihamba. His case
was that he
gave his son
this kihamba to
use in 1956
until he had got
another shamba for
him; that as
the second son
he could not
claim it as his
last born child
was entitled to
inherit; he sought
possession as the
appellant had pledged the
crops to the
person without his
permission. He offered
his son another shamba
which he has
refused to accept.
The appellant’s defence
was his father had
given him the
portion of kihamba
as a gift
and absolutely; that
it was he who
developed it and
planted coffee trees
and that he
had pledged the crops
for eight years
as of right.
Both the assessors
in the primary
(trial) court were of
the opinion that
he respondent was
entitled to possession
of the kihamba. The
trial magistrate found
otherwise stating “That
shamba belongs to the
grandfather of the
plaintiff and Mwao
is a member
of that family
ad he has a
right to
have hat shamba
according to this
father Lekasio. There
is proper evidence that
plaintiff is the
one who gave
him there and
he has not
yet closed him.
As he said
Mwao will stay there
till when he
finds another shamba,
therefore, Mwao is
in the shamba with
the permission of
his father.” The
district court held
for the respondent.
On appeal to the
High Court.
HELD
(1)
“The question of
whether there was
a gift was
a question of
fact and the trial
magistrate ought to
have given reasons
why he differed
from the opinion of
the assessors”.
(2)
“(The trial magistrate)
has clearly misdirected himself on
the facts since
the respondent said
that the appellant
was not entitled to
inherit that portion
of land. In
any case the
possession and use
of it was conditional. On
the trial magistrate’s own
findings there was
not an outright
gifHe did not
direct his mind
to the fact
that another shamba
had been offered
to the appellant and
he refused to
accept it. This
was a valid
reason for the respondent to
take back the
kihamba. Add to
this the fact
that the appellant
had pledged the crop
without his father’s
consent, as the
assessors held, there
was more than enough
justification for the
latter’s claim.”
(3)
“The learned district magistrate held
for the respondent
for equally good
reasons and they
are:- (a) This case
comes under Chagga
customary law and
according to the evidence defendant Mwao
being the third
son cannot fight
for a portion
of the kihamba where
he was born
like the first
and last sons.
(b) Even the
first and last
sons of a man,
although hey have
the right to
fight for portions
of a kihamba
where they have been
born cannot claim
full right before
their father dies
– they can
only sue any portion
of the kihamba
by permission of
their father, which
they cannot sell
or given in pledged
as has been
done in this
case. (c) Even
the written Customary Law
Rules G.N. 436/63
(Second Schedule) does
not permit a
son to inherit
his father (before) he
dies and under
paragraph 30 of
the third Schedule
a testator may change
intention as he
likes.
(4)
Appeal dismissed.
STEPHEN S/O SOKONI V.
MILLIONI S/O SOKONI 1967) HCD. n. 46,
FACTS
The
magistrate granted petition
a divorce, relying
solely on the
contents of the petition.
Cap. 364, Matrimonial
Causes Rules, Rule
25 (1) stipulates
that witnesses at
a trial or
hearing of any
matrimonial cause be
examined viva voce
or, with the permission
of the court,
that facts be
proven by affidavit.
HELD
A
decree dissolving a
marriage cannot be
made where no
evidence was examined by the
court. The case
was returned to
the lower court
to allow petitioner to
substantiate his claim.
THOMAS
SALEWI V. ISSA KIRARI1970) HCD. n.116.
FACTS
The
respondent sued the
appellant for a
Kihamba. There was
evidence that in 1958,
at the instance
of the Local
Authority some people
were removed from a
forest reserve and
settled in a
particular area; the
respondent was given
a portion but be
refused to accept
it. In 1964
the appellant planted
some bananas. The
trial magistrate found that,
“If the defendant
wrongly occupied the
land by himself
it was a big
mistake contrary to
the Local Authority
regulations because at
that time the land
belonged to the
Local Authority ….
According to the
plaintiff’s own witness he
refused to accept
that land and
it would depend
upon the Local Authority to
sue and not the plaintiff.”
The district magistrate
held that the respondent had
proved that the
land was given
to him and
reversed the judgment.
HELD
(1)
“The district magistrate
held that the
respondent had proved
that the land had been
given to him
but this was
contrary to the
evidence since a gift
is not
complete until it
is accepted. Apart
from the clear
evidence of the respondent’s refusal
there was the
fact that he
never entered into
possession or exercised any
act of possession
over a period
of more than
six years. The
weight of the evidence
was not, therefore,
in favour of
the respondent.”
(2)
“I should remark that
the order of
the district court
giving alternatives to
the settlement of the
issue of possession
was not proper
in that it
did not finally
settle the matter. The
order was as
follows – Either
the appellant shall
compensate the respondent at
once and remove
him from the
land soon after
the judgment or
if he is
unable to compensate the
respondent, then the
respondent shall be
allowed some years to
remove or exhaust
his development. The
second alternative was
much too indefinite and
could probably lead
to further litigation.”
(3)
“I hold that
the part of the
judgment of the
primary court which
was quoted above
rightly summed up the
matter. The respondent
had no title
and so could
not succeed against
the appellant who was in possession.”
(4) Appeal
allowed .
MWEHELA KIBUNGO
V. MUDABLE MUHUNGULA 1969) HCD. n. 274.
FACTS
The
respondent moved from
his father’s village
to that of
his uncle, the appellant, who
allowed him to
settle upon and
cultivate a piece
of his land. The
respondent had four
wives and numerous
children. He grew
cassava and bananas
and built five houses
on the plot.
The appellant, who
dispossessed the respondent,
claims that he only
allowed the respondent
to live on
the land and
did not transfer
to him any right
over the land.
The respondent alleged
that he had
bought the land from
the appellant. When
the respondent began
building the houses,
the appellant called two
witnesses on the
land, allegedly to
witness that the
land had not been
sold. They were not shown
the boundaries of the land
nor were they offered
money or a
drink.
HELD
(1)
“According to the
laws applicable for
buying shambas or portions
of land in
Kasulu District among
the Waha tribe,
the land being sold
including its boundaries
should be seen
and verified by
the people who appear
as witnesses. The
witnesses are supposed
to know the
boundaries clearly and they
should also be
given pombe to
drink or money
be distributed between them
in lieu thereof
for the purpose
of making sure
and confirming the selling
of the land.”
(2)
it would be
manifestly unfair that
a man who
had been given land
and who expended
labour in cultivating
an improving it
and in building five
houses thereon, should
be summarily dispossessed
merely at the whim
of the original
donor. There is
no allegation that
the land is
being misused by Mudabe
and it has
been found by
the lower courts
that Mwehela has another
shamba on which
he cultivates.”
(3)
The appeal is
dismissed.
KABACHWEZI V. ABDALLAH AND JOHN 1971) HCD n. 273.
FACTS
The appellant sued both respondents to recover a
piece of land and compensation in respect of trees cut down from the land. The
first respondent admitted in evidence to have sold the property to the
appellant and to the second respondent in turns.
HELD
(1) The respondent Peter John admitted in
evidence to have sold the property to the appellant and to the second
respondent in turns. Paragraph 930 of Cory and Hartnoll on Customary Law of the
Haya Tribe provides:- “A sale (of land) without witnesses is void, even should
both parties agree that it has taken place.” The sale between the respondent
Peter and the appellant which was recorded in Exhibit A-1 was not witnessed by
anyone. On the other hand, the sale to the respondent Haruna was witnessed by
two persons. The learned district magistrate, applying paragraph 930 quoted
above, therefore, held that the sale to the appellant was void for want of witnesses and that the sale to the
respondent Haruna was valid because it was duly witnessed. He therefore awarded
the land to Haruna and said that the appellant was at liberty to sue the
respondent Peter for the money paid to him. I am unable to say that this
decision was wrong and I would therefore uphold the decision of the district
court and dismiss the appeal costs.
KITMBI V. MAKAMBI 1972) HCD. n. 15.
FACTS
The respondent unsuccessfully sought to
stop the appellant planting crops
on what he claimed to be the land he had been
allocated in accordance with the customs of the tribe of the parties
i.e. Wapangwa. On appeal the District court gave judgment in his favour. The
appellant in the High Court pleaded the
National Policy and claimed that he is entitled to cultivate the disputed land
because the respondent has not been
developing it. Instead, he just let it stand idle. In his opinion, therefore,
the appellant fees justified in occupying idle land even without consulting the
owner or the land-allocating authority.
HELD
(1) “The ruling that the appellant should take
the land was based not on law but on the policy that no One can
legitimately claim land unless he
develops it or otherwise effectively
occupies it.” The assessors who sat with
the appeal magistrate sided with the respondent
whom the trial court had found to
have had prior title to the disputed land. The tables were then turned on the appellant.”
(2) “Like the learned trial magistrate, I
appreciate that land should not be left to lie idle and fallow simply because
there is someone claiming possession. Incidentally the National Policy on land is that the present generation holds it in trust for their
descendants. There is therefore no land ownership here. Instead, individuals or
groups are allowed to take possession and occupy on condition that their
occupation should be effective and that they
should develop the land they possess. This however does not mean that
people can indiscriminately occupy
any piece of land they find lying idle as the appellant did in
this case. The Government has designated some authorities to allocate land.
Only by the permission and/or directions
of these authorities can anyone claim to
have lawfully acquired a plot. The Government does not certainly intend
that people shall go about grabbing idle
land. Otherwise conflicts such as the
present one would be legion. Our peace and harmony would be in jeopardy
if acts such as the appellant’s were
suffered.”
(3) “Whereas the respondent has shown that he was
lawfully allocated the disputed plot,
and that the allocation was made to him
many years before the appellant chose to intrude, the appellant entered unlawfully without
seeking the respondent’s permission or the permission of the land allocation authority. In appealing
to this court he is inviting it to legalize his unlawful and high-handed act.
Political considerations apart, the appellant seems to
have a nagging feeling against the respondent who was formerly a sub
chief. Unfortunately courts of law do not base their decisions on
political trends which may be in vogue
at any particular time. There are definite laws and rules which the party has set down for courts
to follow in resolving disputes. Courts would do well to confine themselves to
their will defined terms of reference i.e.
the laws of the Nation. The trial
court accepted the respondent’s contention that
he had prior title to the land
which he cleared and broke. The appellant did not seek or obtain leave to
enter the land. His entry was therefore unlawful and even politics would
not condone his act.
(4)Appeal dismissed.
MEDADI V. NAWE 1971) HCD. n.333.
FACTS
The respondent claimed a piece of land in the
primary court. He asserted that the land was part of a shamba allocated to him
by the appropriate land allocating body in 1959, but that he had not yet
cultivated the disputed part. The appellant‟s case was that the area in dispute
was allocated to him by the Assistant District Executive Officer in 1965 in the
presence of elders. His evidence was corroborated by witnesses and judgment was
given in his favour by the primary court magistrate who agreed with one of the
assessors that because the land was allocated to the appellant by the proper
authority he should remain in possession. This decision was reversed on appeal
to the District Court on the ground of the first allocation.
HELD
(1) “The District Magistrate found that the land
was first allocated to the respondent and nothing was shown why it should have
been taken away from him. It could not be taken away from him without a reason.
I am in full agreement with this view.”
(2) I find no merit in the appeal and dismiss it.
ABBI V. MATLE 1971) HCD. n.341.
FACTS
The
appellant, a Somali,
sued the respondent
for the recovery
of a piece of
land allocated to
him by the
Divisional Executive Officer
(Gidamboru) in March, 1965. The respondent asserted
title to the
land through allocation by
the VDC in
October of the
same year. He
sought to impeach
the prior allocation on
the ground that
the appellant is
a Somali and
land could not be
allocated to a Somali
under customary law.
At the trial
the D. E. O.
gave evidence that
his power of
allocation sprung from
an authority given by
the Executive Officer
of Mbulu District
council. The authority
was not produced through
the reference number
and date were
specified. The trial court
found for the
respondent on the
ground that as
there was no law
regulating the allocation of land, the
power was in
the VDC not
in the DEO. The
decision was affirmed by
the District court.
In the High
Court the appellant sought
to tender the
authority given to
the D. E.
O. by the Executive
Officer, in evidence
but the respondent
objected to this
on the ground that
the document was
additional evidence which
was not produced in
the primary or
district courts.
HELD
(1)
“The admission of
additional evidence has
always exercised the minds
of the courts
as the authorities
show. I propose
to review a few
of them in order to
determine firstly whether
this very important document
is additional evidence
and secondly whether
it can now be
taken into consideration
at this stage.
What has always
been rejected is the
practice of taking
additional evidence on
appeal from witnesses who
were not called
at the trial
because if allowed,
such a practice would make
litigation endless (Bukende
Fufula v. Mswanzi.
Fufula H. C. D.
1970). But even
then authorities seem
to suggest that under section 17(a) of the Magistrate‟s
Courts Act. Cap. 537, witnesses may be heard on appeal “to clear up any point”‟
provided the appeal magistrate records his reasons for taking such evidence
(Michael Kombere vs. Kone Paroli, 1970 H. C. D. 115) The Fufula case (supra)
seems to suggest further that this court could not interfere where additional
evidence was taken without regarding any reasons for its admission if it is
felt that reasons existed for such a course of action to be taken even if they
were not recorded. Indeed in Dausen F. Swawe v. Oforo Semu Swai. 1967 H. C. D.
429 additional evidence taken by the appeal magistrate brought out the fact
that the clan to which parties belonged had sat subsequent to the trial and
rejected appellant‟s claim was accepted by this court, Platt J. (as he then)
was holding: - “The Court expressed doubt as to whether he receiving of
additional evidence by the District Court was merited. However the clan‟s
decision seemed to have been correct, and the Court was entitled to accept the
evidence in the circumstances.” In the present case the Divisional Executive
Officer Mr. Gidamboru told the trial court that he allocated the shamba, then a
virgin piece of land, on 17/3?65 and subsequently informed the V. D. C. which
was a committee made up of several members. Gidamboru was certain that the
allocation was lawful because he was acting under the authority given to him
through this document which allowed him unilaterally to allocate land. With
respect to the respondent I do not think that this document is additional
evidence as such since it has been in the picture all he time. It was
identified and referred at the trial. Failure to produce it at the trial cannot
make it additional evidence at this stage because the respondent has been aware
of it all along. It is a pity that both course below never found it fit to take
the document into consideration. The appellant was not represented at any court
and it cannot be held against him that he did not insist on its production at
the trial or on the first appeal.I would therefore hold that document not to be
additional evidence and take it into consideration.”
(2) “It is clear from the document before this
court that Gidamboru was fully authorised to act the way he did. The trial
court found no by-law in breach of which Gidamboru had acted. It was quite
clear that the appellant claimed prior title to the disputed shamba and that
the respondent was motivated by spite, envy and even racialism when he grabbed
land allocated to and cleared by his neighbour. Here was no requirement at the
time of the allocation that the entire VDC should collectively allocate land. Gidamboru‟s
failure to report to the VDC was not a violation of any existing by-law or
instruction of the Executive officer. The instruction in force at the time
reads: “With reference to this letter I would like to inform you that our
by-law is approved, from now on land should not be dealt with by VDC but
executive i. e. Assistant Divisional Executive Officers and Executive Officer.
Such lands which will be allocated by you should not be under leasehold (Letter
No. MEC/I/16/153 of 27th May 1964).” This letter expressly forbids allocation
of land by the VDC. Following the trial Court‟s own finding that land
allocation was regulated by the directions of the Executive Officer, it would
appear that it was the allocation by the VDC to the respondent which was unlawful
or unauthorised. The express letter of instruction no. MDC/I/16/153 takes such
authority from the VDC and confines it to officials like Gidamboru. For this
reason alone the courts below ought to have found for the appellant.”
(3) “This court has often deprecated the actions
of the VDC‟s in allocation (Lukas Masirori Kateti v. Oloo Sebege 1969 H. C. D.
II) because such practice breeds discontent among the people whom the VDC is
supposed to look after. It is particularly unfair to reallocate occupied land
in the absence of the occupier. In
this case the
respondent was aware
of the allocation
to the appellant and
his approach to the
VDC behind the
Appellant‟s back must have
been made in
a very bad
faith. He was
seeking to exploit
his neighbour who had
spent his energy
and resources to
clear the land already
allocated to him
at the time
the respondent chose
to stir. This court
is left in
no doubt that
the move the
respondent took was taken
because the appellant
was a Somali
and not a
Mbulu or some
other local tribesman. In
rejecting the appellant‟s claim
the trial court
was condoning and even
encouraging racial considerations to
influence above, it
would be only just
to allow this
appeal and overrule
the decision of
both courts below.”
(4)
Appeal allowed and
appellant is declared
the lawful occupant of
the disputed shamba.
NYAKIOZE V. SOFIA 1971) HCD n.413.
FACTS
The appellant and
respondent were married
under the Islamic
Law and lived together
as husband and
wife for seven
years. They were
lat er divorced. The dispute
concerned the ownership
of a house
and a cupboard which
the respondent alleged
the appellant gave
her as a gift
during the marriage.
The respondent instituted
proceedings in the
primary court of Magomeni
district claiming the
posse ssion of the
house and cupboard. The
plot of land
on which the
house was built
was held in the
name of
the respondent under
a Right of
Occupancy granted under
the Land Ordinance, from
year of year.
When the plot
was first acquired,
there was a small
hut on it which
the appellant demolished
and erected the house
the subject matter
of this case. The respondent after
the erection of this
house continued to
pay the site
rent. The Primary
Court found as a
fact that the
appellant intended that
the house and
cupbo ard should belong to the respondent
and the Court
gave judgment for
the respondent and ordered
the appellant to
surrender the house
and the cupboard
to her. In the
District Court, Dar es Salaam,
it was held
that the Primary
Court lacked jurisdiction to dea
l with the house
claimed as its
value was above the
pecuniary jurisdiction of
the primary court.
The magistrate up judgment
of held the the primary
court in regard
to the recovery
of the cupboard,
but then went on
to dismiss t he
appeal.
HELD
(1)
“I have first
to consider whether
the learned magistrate was right
in law to
hold that the
primary court lacked
pecuniary jurisdiction to deal
with the house
claim. The question
is to what
extent the civil jurisdiction of
a primary c ourt
is restricted to amount
or value of
the subject matter. Section
14(1) of the
Magistrates‟ Act which
confers jurisdiction on primary
courts provides as
follows: exercise jurisdiction –-
(1) A primary
court shall have
and (a) in all
proceedings of a civ
il nature (i)
where the law applicable
is customary law
or Islamic Law:
Provided that no
primary court shall have
jurisdiction in any
proceedings (A) affecting the
title to or any
interest in land
registered under the
Land Registration Ordinance:
or (B) in which Islamic
law is applicable
by virtue of the provisions
of the Marriage, Divorce
and Succession (non
Christian Asiatics) Ordinance;
(ii) for the recovery
of civil debts,
rent or interest due
to the Republic,
the Government or any
municipal, town ordistrict
council, under any judgment,
written law (unless
jurisdiction therein is
expressly conferred on a
court or courts
other than a
primary court), right
of occupancy, lease, sub lease or
contract, if the
value of the
subject matter of the suit
does n ot exceed two
thousand shillings, and
any proceedings by
way of counterclaim and
set off therein
of the same
nature and not
exceeding such value …………[His
lordship referred to
Section 15(1) of the
Magistrate‟ Courts Act
and then to Clause (3)
(1) of the
sai d Fourth Schedule which
provides inter alia
“A primary court
in proceedings of
civil nature, may (a)
award any amount claimed.” He
continued:] “It if
my view that except
in cases falling
under section (14)
(1) (a) (ii)
and (iii) of the
Magistrates‟ Courts pecuniary act the civil jurisdiction
of the primary
courts is not
limited to amount
or value of
the subject matter
or to put
it in another
way the jurisdiction of primary
courts is unlimited.
If, for example
a case falls under
section 14(1) (a)
(i) of the to
say proceedings of
a civil nature
where the law
applicable is customary law
or Islamic law,
the civil jurisdiction of a
primary court is
not restricted either to
amount or value
of the subject
matter. The fact
tat in th is case
the value of the
house was assessed
at Shs. 7, 0 00/=
does not oust
the jurisdiction of the
primary court provided
it has the competence respects to
try the case.”
(2)
“Mr. Raithatha, learned appellant [contended]
that 14(1) counsel in other for
the (a) and s.
57 of the
Magistrates‟ Courts Act, was
to confer exclusive
jurisdiction on primary
courts in respect
of interests in land
held under customary
law but to
deprive them of jurisdiction in
respect of matters
relating to title
or interest in
land ob under the Land
Ordinance, Cap. 113 tained
or registered under
the Land Registration Ordinance
Cap. 334. Section
57 of the
Magistrates‟ Courts Act
reads as
follows:“(1) Subject to
the provisions of
any law for
the time being in
force, where jurisdiction
i n respect of the same
proceedings is conferred on
different courts, each
court shall have
a concurrent jurisdiction therein:
Provided that no
civil proceedings in
respect of marriage, guardianship
or inheritance under customar y
law, or the
incidents thereof and
no civil proceedings in
respect of immovable
property, other than
proceedings relating to land
held for a
Government Lease or a
granted under the
Land Ordinance 223 right of
occupancy or proceedings under
sections 22 or of
the Land Ordinance,
shall be commenced
in any court
other than a primary
court unless the
Republic or the
President is a
party thereto or unless
the High Court
gives leave for
such proceedings to
be commenced in some
other court.” (Underlining
supplied) . Section 57
of the Magistrates‟ Courts act
appears to prescribe
the Primary Court
as the proper
Court in which certain
proceedings are to be initially instituted in cases
where different courts have
concurrent jurisdiction …………
Mr. Raithatha‟s argument in volves
a consideration of the effect
to be given
to the Proviso (A)
to section 14(1)
(a) of the
Magistrates‟ Courts Act
………… It is my
view that the
Proviso ousts the
jurisdiction of a
primary court in
a case where but
for the proviso
it would have
had juri sdiction under
section 14(1) (a) (i).
the Primary Court
has jurisdiction to
entertain all proceedings
of a civil nature
where the law
applicable is Customary
or Islamic law.
But for the Proviso
under consideration a
primary court would
have had jurisdictio n to
entertain proceedings involving
title to or
interest in any
land as long as the
law applicable to the
dispute is customary
law or Islamic law.
Take the present
case as an
example, the plaintiff/respondent is contending that the
house was a
gift to her from her
husband during the marriage
that was contacted
under the Islamic
Law and is
now claiming that under
that law and
possibly under customary law also
she is entitled to
keep the property.
The primary court
surely has jurisdiction
to try the case
and it would not
have been relevant
whether the land
on which the house
was built was
held under customary
law or was
held under a
grant obtained under the
Land Ordinance or
was registered under
the Land Registration Ordinance.
What confers jurisdiction
on th e Primary
Court is he fact
that the law
applicable to the
dispute is customary
law or Islamic law.
The effect of
the Proviso is
to oust the
jurisdiction of primary
court, which it would
otherwise have proceedings
has bee had, where
the land involved
in the n registered
under the Land
involved in the proceedings has
been registered under
the Land Registration Ordinance
cap. 334……………..There can
be no justification
in principle for extending
the Proviso to
cover all grants
made under the
Land Ordinance Cap. 113 unless
it is assured
that the Land
Ordinance and the
Land Registration Ordinance Cap.
334 necessarily cover
the same grounds which in
my view is no
the case.”
(3)
“S. 2 of
the Land Ordinance
defines a right of
occupancy as a
title to the
use and occupatio n
of land and included
a title of
a Native or
Native community lawfully
using or occupying land in accordance
with Native Law and customs. It appears therefore that a certificate of
occupancy can be issued to a person whose title to the use and occupation of
land is in accordance with Native Law and Customary. If the right of occupancy
held under customary law if for a term of over 5 years, the certificate of
occupancy in respect thereof must be registered under section 27 of the Land
Registration Ordinance (Cap. 334). Conversely if the right of occupancy is from
year to year the certificate thereof is not registerable under the Land
Registration Ordinance whether it is held under customary law or obtained under
s. 6 of the Land Ordinance. There is no reason why a primary court should not
entertain proceedings relating to such
rights of occupancy whether or not they are obtained under the Land Ordinance
provided that the law applicable to the dispute thereto is either customary or
Islamic law. There is good reason for removing titles or interests registered
under the Land Registration Ordinance from the purview of customary courts. S.
4(2) of that ordinance requires a LAND REGISTER to be maintained for the
registration of the title to land in Tanganyika and the recording of
dispositions, transmissions and in cumbrances of and over registered land. The
Ordinance specified how and by what courts any dispute in regard to matters
covered by it (the ordinance) shall be dealt with.”
(4) “[I] am of the view, and I accordingly hold,
that since this claim relates to a house erected on land held under a grant of
a right of occupancy from year to year the primary court has jurisdiction to
deal with it. The claim involves a consideration of the rights, of
plaintiff/respondent to a house given to her by her husband to whom she was
married under Islamic Law and the law applicable to this case is customary law
and/or Islamic Law.”
(5) “Mr. Raithatha further argued that the
primary court had no jurisdiction to entertain this case since it was a
claim for of recovery S. 11(A)
of the Rents Bahadur of possession
and therefore comes
within the purview Restriction Mandani v. H. H.
Agakhan Act (Cap. 479).
He cited the
case of Dar es
Salaam Civil Appeal
NO. 2 9 of 1968
(Mustafa J.) for
the proposition that
a claim for
the recovery of possession
from a trespasser
comes within the
Rents Restriction Act.
The substance of the
claim I this
case is the
ownership of the
house in dispute. It
does not deal
solely with p assion.
The question for
determination in this case
is whether the house belongs to
the appellant or
to the respondent. That was
the issue which
the primary court
decided in the
respondent‟s favour and to
give effect to
its decision ordered
the appellant t o
surrender the house to
the respondent.”
(6)
“I uphold the
judgment of the
Primary Court which declared
the respondent the
owner thereof and
ordered the appellant to
surrender them to
her. I will
however remit the
question relating to the
refund of the ex
penses incurred by the appellant
to the District Court
for determination. The District Court
will consider as far as possible
the expenses reasonably
incurred by the
appellant in erecting
the now house. It is
common ground that
the value of
the hut was
Shs Having determined . 400/=.
the amount that
is due to
the appellant the
district Court would then
consider the question
or repayment by
appellant by installments having regard
to all the
circumstances of the
case.”
(7)
Appeal relating to
the ownership and p
ossession of the
House and Cupboard dismissed.
Case remitted to
the District Court
to determine the expenses
reasonably incurred by
the appellant in
constructing the house, the
amount for which
the respondent should
be credited as representing her contribu tion
respondent should be created as
representing her
contribution to building
the house and
the terms of
repayment of the balance
due to the
appellant.
METHUSELAH PAUL NYAGWASWA V. CHRISTOPHER
MBOTE NYIRABU [1985] TLR 103.
FACTS
The appellant had purchased an unsurveyed
piece of land held under customary law. The sale was approved by the CCM chairman and
ward secretary. The peace included the
land under dispute. Subsequently the
respondent obtained a right of occupancy over the disputed land. Before
the respondent could build thereon the appellant started to build on it
claiming that he was the rightful owner of the land. The respondent successfully sued him in the High
Court. In deciding in his favour the High Court held that the right of occupancy issued to the
respondent was obtained legally and
without fraud, that the appellant had
trespassed on the respondent's plot and
that the right of occupancy issued to
the respondent extinguished all prior rights and interests of the appellant in the said plot.
The Court awarded the respondent
damages in the sum of Shs.287,200/=
because he was prevented to build during the material period. On appeal
the appellant challenged the decision
of the High Court mainly on the
ground that a granted right of
occupancy does not supersede nor extinguish title over land held under
customary law. He also challenged the
amount of damages awarded to the
respondent on the ground that there was
no evidence that the respondent was willing, ready and able to build on the
plot during the material period. On the other hand it was argued in favour
of the
respondent that the appellant had no
title over the land because the
sale of the land by one Patrick to the
appellant did not have the approval of the village council as required under the Villages and Ujamaa Villages Act, 1975, and therefore,
the sale of the said land was void and
ineffectual.
HELD
(i) A
holder of a right of occupancy under native law and custom does not automatically become a squatter when
an area
is declared a planning area;
(ii) the
interest of the appellant over the land was not compulsorily registrable and by virtue of section 33(1)(b) of Cap.
334 the right of the respondent vis-a-vis the appellant is not indefeasible and unimpeachable in the circumstances;
(iii) (Makame, J.A. dissenting) the sale of the land by Patrick to the appellant was void and ineffectual as it
took place without the approval of the Village Council;
(iv) no sufficient foundation had been laid for
the amount of damages claimed because there was no evidence that the respondent was ready,
willing and able to build but was prevented by the appellant during the material period.
Appeal dismissed
NATIONAL AGRICULTURAL AND FOOD CORPORATION v
MULBADAW VILLAGE COUNCIL AND OTHERS 1985
TLR 88.
FACTS
The respondents filed a suit in the High Court against the appellant
claiming general and special damages for
trespass by the appellant over the respondent's lands and destruction of their crops and huts. The High Court gave judgment in favour of the respondents. On appeal the
appellants argued that the respondents
had not established that they occupied the lands either under customary or by grant under the Villages and Ujamaa Villages Act,
1975. The respondent Village Council
though duly registered and incorporated could not show that the land was allocated to it by the
District Development Council as required by
direction 5 of the Directions under the Villages and
Ujamaa Villages Act, F 1975.
As for the individual villagers,
these failed to prove that they were natives within the meaning of the law. Moreover most of the claimant villagers did not testify in court believing a few selected
villagers could represent them.
It was argued that the claims of each villager was distinct and had to be testified by the
villager concerned. In favour of the villagers it was argued that, if they had no right to possess
the land, they, at least, were licensees
of the appellants and that the
appellant's action of destroying the respondents' property amounted to trespass.
HELD
(i) None of the villagers who had testified could be said to have held land on customary tenure, as none . had established, or even averred that
he was a native;
(ii) the
Mulbadaw Village Council did not own any
land because there was no evidence of any allocation of land to it by the District Development Council;
(iii) the
fact that the village council succeeded the previous unincorporated village in its administrative function over a
specified area.
(iv) since
the villagers were cultivating and planting with permission of the appellant's
land they were in possession lawfully,
as licensees, they can claim damages in
trespass for the destruction of their property by the appellant.
Appeal allowed.
SUZANA KAKUBUKUBU AND TWO OTHERS v WALWA JOSEPH
KASUBI AND THE MUNICIPAL DIRECTOR OF MWANZA
FACTS
The plaintiff held about 5 acres of
land under the deemed right of
occupancy. Due to poor health she invited relatives to live on it while she was staying in Dar es Salaam .
In 1984, a survey was done on the piece of land resulting in two farms - Farm 2 and Farm 3. While Farm 2 was
allocated to the plaintiff, Farm 3 was
allocated to the first defendant. Compensation in respect of Farm 3
was worked out and paid to those who were occupying it. Later the
plaintiff came to know about the survey and allocation of Farm
3 to the first defendant. She, joining her children, sued the first defendant and
the Municipal Director of Mwanza arguing that they were the lawful owners of
Farm 3 notwithstanding the
compensation paid to third parties for the unexhausted improvements. One of the
issues argued in court was whether or not payment of compensation for
unexhausted improvements to the holder of
a deemed right of occupancy or his agent or
representative extinguishes that right.
HELD
(i) Payment of compensation to a holder of a deemed right of occupancy or to his agent or to his representatives
extinguishes that right.
Suit dismissed
MWALIMU OMARI AND ANOTHER. v OMARI A. BILALI 1990 TLR 9
FACTS
The two appellants Mwalimu Omari and Ahmed Banguo
were sued in the Resident Magistrates
Court by the respondent Omari A.
Bilali. The subject matter of the suit was a plot No. 60 block "E"
situated at Magomeni. Brief facts are that
at Magomeni there was an area which at first had not been
surveyed. Mwalimu Omari occupied
this area whose size the record does not
show. Somehow it was decided by some official to survey the area The area G was
surveyed and two plots came out of it; plot No. 60 and plot No. 61. Plot No. 61 was given to Mwalimu Omari.
It appears that before the plot was
surveyed, Mwalimu Omari had given part of the area (now plot 60) to his in-law. This person in
turn sold it to the suit defendant Ahmed
Banguo. Banguo occupied this unsurveyed land which had nothing but a toilet and some cassava. When the area was demarcated into
plots No. 60 and plot No. H 61 Mwalimu Omari got plot No. 61 and the
plaintiff was offered plot No. 60. Mwalimu Omari it appears had wished the plot to have been
given to Banguo. In the Resident Magistrates
Court two issues were framed.
(1) who was the lawful holder of plot No.60 Block
E Magomeni Dar es Salaam and
(2) what
relief were the parties entitled to.
After both
sides had given evidence the Resident magistrate held that plot no.60
belonged to the plaintiff and there was no compensation for the house built
while the case was sub judice, hence this appeal.
HELD
(i) Title under customary law and a granted right of occupancy in an area declared township or minor settlement cannot
co-exist. Title to urban land depends on grant;
(ii) squatters in the eyes of the law cannot
equate themselves to any person holding a title under right of occupancy even where
the squatter occupies land under
customary law,
(iii) once an area is declared an urban planning area and land surveyed and plot demarcated whoever
occupies land under customary law has to be quick to apply for right of occupancy.
If such person sleeps on such right and the plot is given to another, he
becomes a squatter in law and would have to
move away; he strictly would not
be entitled to anything;
(iv) the appellants erected the building knowing
fully well that the matter was still sub judice and that the respondent had a
valid letter of offer from the Ministry
of Lands. Since they did so at their own
peril no compensation can legally be
given to them except for the few cassavas and toilet which existed at the start of the suit.
Appeal dismissed.
SCOLASTICA BENEDICT v MARTIN BENEDICT 1993 TLR 1
FACTS
The appellant's husband died intestate in
1971. He was survived by two wives and a
number of sons and daughters. The deceased left to his heirs substantial
property including motor vehicles, farmland, cattle and houses. The administrators of the
deceased's property distributed
the property and the interests
therein to the heirs in accordance with the guidance of the clan
council acting under Haya customary
law. None of the widows of the
deceased inherited any property of the deceased; instead they were required
to reside with
and be maintained
by their respective children
according to Haya customary law. The
respondent, one of the sons of the deceased by
his first wife, was given, among
other things, a house on plot Nos. 17 and 19 Block `D' in Bukoba township, in
which the appellant, the second wife of the deceased had been living with her
deceased husband. The only daughter whom
the appellant had sired with the deceased was given, among other things, a
farmland including a house in need of
some repair at Kanoni Shamba. The
appellant filed a civil suit in the
Urban Primary Court of Bukoba challenging the administration of the estate of
her deceased husband, particularly in respect of the house on plot Nos. 17 and
19 Block `D' in Bukoba township.
The defendants resisted the suit on the
ground, inter alia, that the I primary court had no jurisdiction on the subject-matter. The primary court overruled
the defendants who successfully appealed to the District Court whose decision was confirmed by the
High Court. The High Court, however,
granted the appellant `liberty to pursue her claim' either in the District
Court or the High Court. This liberty was not exercised. The respondent, who
was given the house on plot Nos. 17 and
19 instituted a suit in the Court of
B Resident Magistrate at Bukoba seeking, inter alia, to evict the appellant and her daughter from the suit
premises. The trial court granted vacant
possession to the respondent. The appellant's appeal to the High Court
failed. On a further appeal to the Court of Appeal of Tanzania the Court upheld the decision of the High
Court. In addition the Court considered when a court becomes functus
officio and the question of jurisdiction of primary courts in administration of registered land.
HELD
(i) As a
general rule, a primary court, like all other courts, has no jurisdiction to
overturn or set aside its own decisions as it becomes functus officio after
making its decisions;
(ii) The only exception to this general rule
includes the setting aside of ex parte decisions and D
reviews of decisions induced by fraud or misinformation;
(iii) While section 15(1)(c) of the Magistrates
Courts Act 1963 (now s. 19 of the Magistrates' Courts Act 1984) did
not specify the particulars relating
to the administration of estates, the order of the Chief Justice
published as Government Notice No. 320
of 1964 conferred jurisdiction on
primary courts in matters of
administration of estates regardless of whether the subject-matter is
land registered under the Land
Registration Ordinance, provided the applicable law is customary or
Islamic law, other than matters falling
under the Marriage, Divorce and Succession (Non-Christian Asiatics)
Ordinance.
Appeal
dismissed in its entirety.
YOKE GWAKU
AND OTHERS v NAFCO AND OTHERS 1991 TLR 87
FACTS
The appellants who had lost a suit in the
High Court when appealing against it
failed to incorporate a formal or extracted order or decision appealed
against. Contra the argument of the
respondents that the appeal was incompetent
for failure to comply with an essential step, counsel for the appellants
sought to impress on the court that
he was under no obligation
to draw up the formal order because
he was not appealing against the whole order of the High Court but merely against a
finding which formed only a part of the entire order.
HELD
(i) Appeal is incompetent for failure to comply with an essential step;
(ii) where a party wishes to appeal against a finding or findings which
form only a part of the whole decision,
he is not obliged to draw up the
formal order covering the whole
decision. The rule requires him to extract an
order corresponding only to that finding or findings which it is
intended to appeal against.
Order accordingly.
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