IN THE COURT OF APPEAL OF TANZANIA 
ATARUSHA 
(CORAM: MUSSA, l.A., MWARIJA, l.A. And MWANGESI, l.A.) 
CIVIL APPEAL NO. 193 OF 2016 
REGISTERED TRUSTEES OF HOLY 
SPIRIT SISTERS TANZANIA APPEllANT 
VERSUS 
lANUARY KAMIlI SHAYO AND 136 OTHERS RESPONDENTS 
(Appea! from the decision of the High Court of Tanzania 
at Moshi) 
(Mziray, l.) 
dated the 14th day of November, 2013 
in 
land Case No. 11 of 2012 
JUDGMENT OF THE COURT 
12th March & 2pt August, 2018 
MUSSA, J.A.: 
The appellant is a religions organization conducting spiritual and 
charitable activities under the umbrella of the Registered Trustees of the 
Roman Catholic Church Diocese of Moshi. For ease of reference, we shall 
henceforth refer the latter to as the trustees of the Diocese. The 
respondents are natural persons who operate for ~ at Magadini Village, 
Sanya Juu. 
1 
In the High Court of Tanzania (Land Division), the appellant instituted 
a suit against the respondents over ownership of a portion of land located 
at what were known as Kilari farms, Sanya Juu. In the suit, the appellant 
claimed that she was' the registered and lawful owner of farms Nos. 336/2, 
336/3, 336/4, 336/5 and 336/7 all of which are held under certificates of 
title No. 13986 and 7311. -The respondents did not deny the appellant's 
ownership to the referred farms, save for farm No. 336/2 (hereinafter 
called "the suit land'') which they claimed ownership on account of having 
acquired it as a grant from an original owner and occupied the same for 
more than sixty (60) years. At the commencement of the trial, three issues 
were framed for the determination by the court, namely:- 
"1. Who is the lawful owner of farm No. 
336/2 with title No. 7311. 
2. Whether the defendants trespassed into farm 
No. 336/2 with title No. 7311 
3. To what relief(s) if any are the parties entitle 
to. rr 
In the ensuing case for the appellant, four witnesses plus a host of 
documentary exhibits were lined up in support of the claim. On their part, 
the respondents featured four witnesses as well to support the denial of 
2 
the appellant's claim. More particularly, the witnesses who gave testimony 
in supportof the case for the respondents were, namely, John Ramadhani 
Karinga (OW4), Edward Mbise (OW2) Ramadhani Karinga (OWl) and 
Aminiel Elisamia Mushi (OW3). If the list of respondents on the record of 
appeal is anything to go by, these are, respectively, the 33rd, 30th 42nd and 
the 93rd respondents. 
At the height of the trial, the High Court (Mziray, J., as he then was) 
found that the respondents have acquired ownership of the disputed farm 
on account of the doctrine of adverse possession. In the result, the suit 
filed by the appellants was dismissed with costs. The appellants are 
dissatisfied, hence this appeal which is grounded upon eight (8) points of 
grievance, namely:- 
"I. The trial Honorable High Court Judge erred in 
Law and fact by departing from the proper 
pleading/ issues and proceeding hence he made 
a wrong decision. 
2. The trial Honorable High Court Judge erred in 
law and fact by making decisions basing on time 
limitation and doctrine of adverse possession 
without affording the parties a right to be heard 
on these issues. 
3 
3. The trial Honorable High Court Judge wrongly 
interpreted the doctrine of adverse possession 
and he never consulted the proper law hence he 
made a wrong decision. 
4. The trial Honorable High Court Judge erred in 
law in holding that the Respondents were 
adverse possessors while the available evidence 
shows that they were licensees wit/lout value. 
5. The trial Honorable High Court Judge erred in 
law and teet by holding that the Respondents 
became owners of the suit farm by virtue of 
adverse possession while there was no evidence 
that they were adverse possessors of the 
disputed land. 
6. The trial Honorable High Court Judge erred in 
law and fact by holding that the Respondents are 
lawful owners of the dispute farm. 
7. The trial Honorable High Court Judge erred in 
law and teet by holding that the Respondents 
were not the trespassers on the dispute farm. 
8. The trial Honorable High Court Judge erred in 
law and teet by fat'ling to evaluate the evidence 
4 
in records thus he made a wrong decision of the 
disputed farm. // 
At the hearing before us, the appellant was represented by Mr. 
Lusajo Willy, learned Advocate, whereas the respondent had the services 
Ms. Fay Grace Sadallah, also learned Advocate. Both learned counsel had 
lodged written submissions either in support or in opposition to the appeal 
which they, respectively, fully adopted. In the upshot, Mr. Willy invited us 
to allow the appeal with costs, whereas Ms. Sadallah urged us to dismiss 
the appeal, similarly, with costs. Ahead of our consideration and 
determination of the learned rival arguments, it is necessary to revisit, 
albeit briefly, the evidence adduced during the trial, 
As we have already hinted, from a total of four witnesses and several 
documentary exhibits, the case for the appellant was to the effect that the 
Kilari farm estate, in which the disputed suit land is constituted, was 
acquired way back in 1971 by way of a purchase from a certain Amir 
Hussein Khiman who was the subsisting owner thereof. According to sister 
Inviolate Kessy (PW1), the transaction giving rise to.the purchase of the 
suit land was actually done by Bishop Kilasara (now deceased) who was 
then head of the Catholic Diocese of Moshi. By then the appellant had not 
5 
been registered and, thus, upon purchase, on the 22nd October, 1977 the 
Trustees of the Diocese executed a deed of transfer of the right of 
occupancy to themselves (exhibit P8) which was entered in the title 
Register on the 10th March, 1972 (exhibit P7). It is, however, noteworthy 
that prior to Mr. Khiman's ownership, the suit land had passed through 
various hands. According Emmanuel Bundala (PW4), an assistant Registrar 
of titles, the title owner who immediately preceded Mr. Khiman was Mr. 
Malham Lawn Ray Ulyate whose title was registered on the 15th August, 
1959 (exhibit P7). 
The registration of the appellant as Trustees of the Holy Spirit Sisters 
of Tanzania was effected a good deal later, in the year 2004, whereupon 
on the 15th June, 2011 she executed a deed of transfer of the suit land to 
herself from the Trustees of the Diocese. As to what was found on the suit 
land at the time of the appellant's formal acquisition, this is what PWl told 
the trial court:- 
"The original owner was conducting mixed farming 
in the disputed area. He was doing farming work 
and keeping livestock. He was cultivating coffee? 
maize and beans. There were also matured trees 
which gave shed to coffee trees to grow well. 
There were houses constructed in the farm for the 
6 
use of the laborers. There were also livestock 
animals kept in the farm. All these properties 
including the servant quarters were owned by the 
original owner. When we purchased the disputed 
farm/ all the properties therein were sold to the 
plaintiff. We retained the farm workers who were 
originally employed by the original owner. When 
we took possession we warned the laborers 
working there not to construct permanent 
structures in the disputed farm or to use it as a 
cemetery. We agreed with the said laborers that 
we were going to use them when there was work 
available but when there was no work then they 
were at liberty to find otherj obs elsewhere.rr  
The foregoing conditions were replicated, in similar tone, by the 
testimonial account of Father Paul Uria (PW2) who also testified that the 
conditions were reduced into writing. The witness claimed that most of the 
documents could not be traced in the wake of Bishop Kilasara's demise. 
Thus, he adduced into evidence only two documents (exhibit PS) which 
prescribed the conditions imposed on the 2nd and 40th respondents, 
namely, Hamisi Ally and Emmanuel Kisai, respectively. We reproduce a 
portion of exhibit PS respecting Hamisi Ally as hereunder:- 
7 
"MAKUBALIANO YA UAMUZI WA MKUTANO WA TAREHE3  AUGUST, 1972 
KILARI FARM SANYA JUu. 
Masista wa Roho Mtakatifu katika jimbo la Moshi wanaomiliki shamba la 
kilari (No. 7311 & 13986) Sanya Juu wanamruhusu Ndugu Hamisi Ally 
kuendelea kutumia sehemu ya ardhi aliyopewa eka ... kujipatia chakaula 
muda anaoruhusiwa kuishi katika shamba hili. 
Sehemu hiyo ya ardhi ni lazima ilimwe na kutunzwa vizuri. Ardhi hiyo 
itabaki kuwa mali ya shamba la kilarl bivyo hsruhusiwi yafuatayo: 
1. Haruhusiwi kiuenga nyumba ya kudumu au 
mazao ya kudumu kama kahawa, miti n.k. 
2. Haruhusiwi kuuza nyumba wala kuwarithisha 
wanae au jamaa zake. 
3. Haruhusiwi kuwaalika jamaa zake marafiki au 
wageni kuwa wakaazi katika ardhi hiyo. 
Ikitokea kifo au kuhama kt'lari kwa kuacha kazi ndugu Hamisi 
Ally analazimika kurudisha sehemu hiyo ya ardhi kwa masista 
wa Roho Mtakatifu kwa matumizi menaine, bila melipo au 
madai ya fidia. 
Signed 
Sr. Incharge 
Signed 
Bishop Joseph KJlasara 
Kwa niaba ya HOL Y SPIRIT SISTERS 
KILARI FARM// ' 
8 
In the other portion of exhibit PS, similar conditions were imposed 
on the 40th respondent, namely, Emmanuel Kisai. There was some further 
evidence to the effect that upon taking over the disputed farm, the 
appellants built on it a primary school which was known as Kilari Primary 
School. According to PW1, the school was later donated to the 
government and, to brace the occasion, Mapendo Morris Minja (PW3) a 
former head teacher, produced a letter from the Education Officer, Hai 
District (exhibit P6) who thanked the appellant for donating the school. 
According to both PW1 and PW2, with effect from year 2001 the 
conditions imposed on the licenses were progressively breached by the 
labourers, hence the suit giving rise to this appeal which was formally filed 
on the 17th September, 2012. Thus, in a nutshell, throughout the trial, the 
case for the appellant was to the effect that she is the registered lawful 
owner of the suit land as distinguished from the respondents who are mere 
licensees. 
In reply, the respondents unveiled a somewhat unison tale. All the 
respondents, it was so told, were either employees or the descendants of 
the employees of the previous occupier and owner of the suit land, namely, 
Mr. Malham Lawn Ray Ulyate. Their joint account was to the effect that 
they worked for or, to some,· their forefathers worked for the European 
9 
occupier with effect from the year 1959 up until 1969 when the latter left 
the country. 
This detail is fortified by the entries in the title register which are to 
the effect that Mr. Malham Ulyate took over the ownership of the suit land 
from another Ulyate, namely, Ms. Marjorie Ann Ulyate on the 9th February, 
1959. Mr. Malham then mortagaged the suit land to the Land Bank of 
Tanganyika on the 15th August 1959. The mortagage was discharged on 
the 3rd July, 1969 and, as already intimated, on that same day, the suit 
land was transferred to Mr. Amir Hussein Khiman by way of sale. 
It was the respondents' further telling that, in the period preceding 
his departure, Mr. Ulyate was engulfed by acute financial constraints which 
disabled him to pay the employees their dues. And so, it was said, 
sometime in the year 1965, Mr. Ulyate granted to his employees the suit 
land so as to compensate them for the unpaid dues. According to them, 
the arrangement was blessed by Mr. Khiman who took over the occupation 
from Mr. Ulyate, just as it was also endorsed by Bishop Kilasara who was in 
the middle of the transition of the suit land from Mr. Khiman to the 
appellants. 
Thus, in a nutshell, the respondents counter claimed ownership of 
the suit land and justify their occupation with the claim that the suit land 
10 
was given to them as a grant by Mr. Ulyate after he failed to pay their 
dues. 
On the whole of the evidence, the trial Judge formulated the 
following facts to be undisputed:- 
"i) The original owner of the disputed land was a settler 
known as Malham Lawn Ray Ulyate. He has been 
I•n  ocaipetIt-'o n bC lCk  tI.n  _1 9h_ ors  
ii) The defendants are descendants of the 
laborers of Ulyate and have been in 
occupation of the disputed land since early 
1960's after the original owner Ulyate had 
given them the land after having failed to pay 
their terminal benefits. 
iii) There are several farms that is 336/2r 336/3 336/4 
336/5 336/6 and 336/7 but the farm in dispute is 
only 336/2 which is presently occupied by the 
defendants. 
iv) In 1972 ownership of all these farms including the 
suit land fell under the Registered Trustees of the 
Diocese of Moshi and subsequently it passed 
ownership to the plaintiff. 
v) It is also not disputed that the plaintiff'processed 
title deeds to. the farms and in the year 2011 they 
got title deeds to the farms and in the year 2011 
they got title deeds 
11 
vi) It is not disputed that when the title deeds were 
obtained the defendants were already In 
occupation. 
vii) There is no disputed whether that the defendants 
have made some substantial developments in the 
suit land during the whole period of their 
occupation jointly with the efforts of the plaintiff. 
We have supplied emphasis on item no. (ii) of the undisputed facts 
as conceived by the learned Judge of which, to us, was very much in 
dispute during the trial. The appellant, for instance, consistently sought to 
be declared the lawful owner of the suit land and, in that regard, she did 
not, at any time, accede to the respondent's claim that they acquired 
ownership of the suit land through a grant from Mr. Ulyate. Unfortunately, 
on account of the misconception, the learned trial Judge proceed to make 
a finding:- 
1'1 believe the version that the defendants are 
descendants of the laborers of the settler known as 
Malham Lawn Ray Ulyate and that they have been 
in occupation of the disputed land since the 19605. 
The said Malham Lawn Ray Ulyate had given 
the disputed land to the defendants after he 
12 
failed to pay them their severance benefits. 
The record shows that the said farm consisted of 
farms Nos. 336/2, 336/3, 336/4, 336/5, 336/6 and 
336/7 with titles Nos. 7311 and 13986. The farm 
which was given to the defendants is farm 
No. 336/2. "[Emphasis supplied] 
Having so found, the learned Judge went further and decided issue 
No.2 in the negative and, as we have already intimated, in the upshot, the 
Judge found that the respondents have acquired ownership of the disputed 
farm on account of the doctrine of adverse possession. 
We have, again, indicated the extent to which the appeiiant seeks to 
impugn this verdict upon a lengthy memorandum of appeal which was fully 
adopted by Mr. Lusaju Willy, the learned Advocate for the appellant at the 
hearing. Mr. Willy also adopted the appellant's written submissions of 
which he sought reliance, without more. On the adversary side, Ms. Fay 
Grace Sadallah, the learned counsel for the respondents, similarly adopted 
her clients' written submissions, also, without more. 
Having read and heard the submissions from either side, we propose 
to approach the memorandum of appeal generally, the more so as some of 
13 
the grievances are raised repetitiously. The complaint about the improper 
invocation of the doctrine of adverse possession is, for instance, replicated 
in grounds Nos. 2, 3, 4, and 5. 
To begin with, granted that the dispute in the case at hand was only 
with respect to the ownership of the suit land but, the learned Judge, 
seemingly, unreservedly shallowed the respondent's claim of having 
acquired the farm by way of a grant. The grant, if it was so extended to 
the respondents, was so vital a factual detail for the resolution of the 
conflict and, for that matter, the learned, Judge was enjoined to make a 
finding on it upon a due consideration of the whole of the evidence. That 
was not done and, as it turned out, the finding that the suit land was 
acquired by the respondents by way of a grant from Mr. Ulyate was 
grounded upon a paucity of evidence obtained from the respondents alone. 
But, sitting as a first appellate Court, we are entitled to re-evaluate the 
evidence afresh and arrive at our own finding with respect to this particular 
issue. 
Our starting point will involve a reflection on the pleadings filed by 
the parties. The respondents, indeed, claimed, in paragraphs 3,4, and 5 
(a) - (k) of their joint written statement of defence to the amended plaint, 
that the suit land was acquired by their forefathers by way of a grant from 
14 
Mr. Ulyate so as to offset the former's severance and terminal benefits (see 
page 33 to 37 of the record). More particularly, in paragraphs 5 (h) (i), U) 
and (k) the respondents claimed:- 
"(n) That the programme of Ujamaa Village which 
was launched in 1971/ recognized and confirmed 
farm No. 336/2 to be one if the Hamlets in the 
Magadini Village which came to be divided later into 
Magadini and Wiri Villages. 
(i) That, in 1972 when KlLARI FARM was 
transferred to the Registered Trustees if 
the Diocese of Mosht. farm No. 336/2 was 
not transferred to it as it was already under 
the ownership of the defendants fathers as 
KlLARI HAMLET (KlTO/VGOJI). The 
Trustees adopted and reinforced the 
demarcations which had already been fixed 
by planting various traditional trees along 
the demarcations so as to separate KlLARI 
HAMLETf rom other farms. 
0) That the plaintiff which was by then one of 
the departments of the Trustees of Moshi 
diocese fortified such demarcation using 
timber plainks and planting impenetrable 
facing trees called "michonqome N or ''f(­ 
apple. N 
15 
(k) That in 2011/ when a suit land registered 
under title No. 7311 and 13986 was 
trensterred. from No. 336/2 was not a 
property of the Registered Trustees of the 
dioceseo f Moshi. So it was not transferredt o 
the plaintiff as the trust could not transfer a 
property not belongingt o it 
The foregoing claims, as we have already intimated, were refuted by 
the appellant who, in contrast, claimed in her reply to the joint written 
statement of defence that the entire parcels of land registered under 
certificate if title Nos. 7311 and 13986, which include the suit land, are her 
lawful belongings (see page 38 to 40 of the record of appeal). To fortify 
her claim, the appellant featured the already mentioned PW4 who was, at 
the material times, an assistant Registrar of Titles. This witness adduced 
into evidence two documents exhibits P7 and P8 which indicated that the 
right of occupancy on title No. 7311, in which the suit land was comprised, 
was in the name of the Trustees of the Diocese with effect from the 10th 
March, 1972. Then according to the documents on the 15th June, 2011 the 
title was transferred to the appellant. 
On their part, the respondents clearly stated that the grant of the suit 
land from Mr. Ulyate to them was not reduced into writing. They did not, 
16 
as well, tell whether or not the transaction was authorized by the superior 
land lord. During the trial, Mr. Ulyate was not featured to confirm to the 
grant detail and, indeed, nothing was said about his whereabouts or any of 
his representatives, if he had any. And, neither were the local authorities 
called to fortify the claim comprised in the extracted paragraph 5 (h) of the 
joint written statement of defence. Furthermore, speaking of the 
conditions imposed by Bishop Kilasara for their stay at the suit land, DW1 
informed the trial Court thus:- 
"I know one Emmanuel Kisai. I also know one 
Hamis Ali. It is true that the two were working with 
me in the Europe settler farm. It is true that our 
terms of staying in that area were simiiar. It is true 
that there were conditions on which we agreed with 
Bishop KtYasara for us to say at Kilad sub-village. " 
Coming to the claim that the suit land was not transferred when the 
certificate of title passed from Mr. Khiman to the registered trustees of the 
diocese of Moshi I 1972, we hasten to express at once that there is no 
truth in the allegation. Exhibit P7 through which title No. 7311 was 
transferred to the Trustees of the diocese clearly described the parcels of 
land comprised in the little -vlz-farrns Nos. 336/2, 336/3, 336/4 336/6 and 
17 
336/7. Besides, going by the testimonial account of PW4, in the year 2010 
the trustees of the Diocese applied to the Registrar of Titles to prepare 
new certificates for title deed No. 7311 and 13986 on account that the 
originals were misplaced. As regards, title No. 7311, there was a further 
application to subdivide the farms comprised in it to six portions. The 
Registrar acceded to the application and if we may discern from exhibit P7, 
upon the division which as registered on the 27th December, 2011 the 
farms of Title 7311 were renamed as Nos. 336/2/1, 336/2/2, 336/3/3, 
336/4, 336/6 and 336/7. 
To say the least, the respondents' claim that farm 336/2 had not 
been transferred to the Trustees of the Diocese is further frowned in the 
face of this re-division, Thus, to this end, the claim that the respondents 
. acquired the suit land by way of a grant from Mr. Ulyate was 
unsubstantiated and, if at all, the same stood on discounted facts. We 
would venture to add that even if there was such a transaction, as it were, 
involving a disposition of a portion of a right of occupancy, the position of 
the law, as it then stood, under regulations 3(1) to (3) of the Land 
Regulations, 1960 (G.N. NO. 101 of 1960) required thus: - 
''3-(1) A disposition of a right of occupancy shall 
not be operative unless it is in writing and unless 
18 
and until it is approved by the Governor. [later to 
be the President] 
(2) In this regulation "disposaion" means- 
(a) A conveyance or assignment other than by 
way of mortgage, or a gi{C settlement deed 
of partition, assent vesting declaration or a 
sale in execution of an order of court: 
(b) A mortgage other then- 
(i) an Equitable mortgage by deposit of 
title deeds; or 
(ii) a Mortgage which by law is only 
effectual if registered in the Register 
of Documents or the Land Register; 
(c) a deed or agreement or deciaration of trust 
binding any party thereto to make any such 
disposition as aforesaid, including a deed or 
agreement entitling a party thereto to require 
any such disposition to be made; 
(d) a decree of foreclosure of a mortgage. // 
There is, in this regard, a long line of authority to the effect that an 
oral and unapproved agreement for the disposition sf land held under a 
Right of Occupancy such as the one relied upon by the respondents, is in­ 
operative and of no effect. If we may just cite a few, in Patterson and 
19 
another v Kanji (1956) E.A.C.A. 106, dealing with a similar regulation, 
the defunct Court of Appeal for Eastern Africa stated that one cannot seek 
"to enforce at law which he can only establish by relying on a transaction 
declared by law to be inoperative". That decision was followed in Patel v 
Lawrenson [1957] E.A. 9; Kassam v Kassam [1960] E.A. 1042; and 
Nitin Coffee Estates Ltd v United Engineering Works Ltd [1988] TLR 
203 (CA). In the latter case, the Court observed: - 
'~ Right of Occupancy is something in the nature of 
a lease and a holder of a right of occupancy 
occupies the position of a sort of leasee vis-a-vis 
the superior landlord. A right of occupancy is for a 
term; and is held under certain conditions. One of 
the conditions is that no disposition of the said right 
can be made without the consent of the superior 
landlord. There is no freehold tenure in Tanzania. 
All land is vested in the Republic. So land held 
under a right of occupancy is not a freely disposable 
or marketable commodity like a motor car. Its 
disposal is subject to the consent of the superior 
and paramount landlord as provided for in the 
. ~.;.. . 
relevant Land Regulations./ / 
We are, nonetheless, keenly aware that, in a subsequent 
development, the foregoing position of the law was refined by a full bench 
20 
of the court in the case of Abualy Alibhai Azizi versus Bhatia brothers 
ltd [2000] T.L.R. 288 thus: - 
"l. In ascertaining what we consider to be the 
coaea interpretation of the expression, 
''shall not be operative" in regulation 3 of 
the Land Regulations, 1948 and 1960, we are 
going to be guided by two underlying 
principles. The first principle is explained in 
NmNs case, that is, 'a Right of Occupancy is 
something in the nature of a lease and a 
holder of a Right of Occupancy is something 
in the nature of a sort of lessee vis-a-vis the 
superior landlord. The corollary of this 
principle is that a transaction for the 
disposition of a right of occupancy is 
necessarily a tripartite transaction involving 
not only the holder of the right of occupancy 
and the purchase or donee, but also involving 
the superior landlord. 
2. The second principle concerns the law of 
contract and originates form the English 
Common Law. That principle is the principle 
of Sanctity of Contract. 
3. Thus guided by these two principles and the 
provisions of sub-section (2)of section 2 of the 
Law of Contract Ordinance, we are satisfied 
21 
that the expression ''shall not be operative" 
as used under regulation 3 of the Land 
Regulations 1948 and 196~ does not mean 
'void' or another meaning to the same effect 
4. We have asked ourselves if the expression 
''shall not be operative" does not entail 
invalidi~ what then does it mean? Logicall~ 
it means at least that the contract in question 
is valid. According to Mr. Chandoo, such 
contract has all the attributes of a valid 
contract That submission is consistent with 
the doctrine or principle of sanctity' of 
contract We note however, and Mr. Chandoo 
is likely to agree with us. that the principle of 
sanctity of contract is qualified by certain 
teaors. including that of public policy as 
stated in the paragraph we have cited from 
CHITTY's Law of Contracts. The factor of 
public policy in contractors for the disposition 
of a right of occupancyi s consistent with the 
second principle guiding us. and which 
concerns the relationship between the holder 
of a right of occupancy and the paramount 
landlord as explained in NmN's case. It is 
our consideredo pinion that a contract falling 
within the scope of regulation 3 has all the 
22 
attributes of a valid contrect. except those/ of 
which performance before the requisite 
consent is sought and obtained, is prejudicial 
to the interests of the paramount landlord 
Such are, for example, terms of which 
performance has the effect of replacing 
the holder of a right of occupancy with 
another person without the consent of 
the paramount landlord. Such terms, 
though valid, are unenforceable on the 
grounds of public policy, which protects 
the interests of the paramount landlord. 
In our considered opinion, this 
unenforceability of a valid contract is 
what is meant by the expression "shall 
be inoperative" under regulation 3. " 
[Emphasis supplied.] 
Thus, all factors considered, we are fully satisfied that, to the extent 
that the performance of the terms of the agreement between the 
respondents and Mr. Ulyate was, in effect, desired to replace the subsisting 
holder of a right of occupancy without the consent of the paramount 
landlord the same was, so to speak, unenforceable on the grounds of 
public policy. In our considered opinion, this unenforceability of a valid 
23 
contract is what is meant by the expression "shall be inoperative" under 
regulation 3. 
To this end, during the trial, the case for the respondents was 
grounded upon an alleged agreement which was inoperative, not only for 
lack of approval, but also for lack of writing. Accordingly, the trial Judge 
seriously non - directed himself on this legal requirement and consequently 
lent himself on an alleged agreement which was unenforceable. All said, it 
cannot be said that Mr. Ulyate's title to farm NO. 366/2 was lawfully 
granted to the respondents. 
In our well-considered opinion, neither can it be lawfully claimed 
that the respondents' occupation of the suit land amounted to adverse 
possession. Possession and occupation of land for a considerable period of 
time do not, in themselves, automatically give rise to a claim of adverse 
possession.T o this proposition, we find inspiration from the Kenyan case of 
Mbira v Gachuhi [2002] 1 EA 137 (HCK) wherein it was held: - 
"The possession had to be adverse in that 
occupation had to be inconsistent with and in denial 
of the title of the true owner of the premises; if the 
occupiers right to occupation was derived from the 
owner in the form of permission or eareement; it 
was not adverse/ / 
24 
In the foregoing remark, the High Court of Kenya had referred and 
followed two English decisions - viz - Moses v Lovegrove [1952] 2 QB 
533; and Hughes v Griffin [1969] 1 All ER 460. In those cases, it was 
held that it is trite law that a claim for adverse possession cannot succeed 
if the person asserting the claim is in possessionw ith the permission of the 
owner or in pursuance of an agreement for sale or lease or otherwise. 
Thus, on the whole, a person seeking to acquire title to land by adverse 
possession had to cumulatively prove the following: - 
(a) That there had been absence of possession by 
the true owner through abandonment/ 
(b) that the adverse possessor had been in actual 
possession of the piece of land; 
(c) that the adverse possessor had no color of 
right to be there other than his entry and 
occupation; 
(d) that the adverse possessor had openly and 
without the consent of the true owner done 
acts which were inconsistent with the 
enjoyment by the true owner of land for 
purposes for which he intended to use it; 
(e) that there was a sufficient animus to 
dispossessa nd an animo possidendi; 
(f) that the statutory period, in this case twelve 
25 
years, had elapsed; 
(g) that there had been no interruption to the 
adverse possession throughout the aforesaid 
statutory period; and 
(h) that the nature of the property was such that 
in the light of the foregoing/ adverse 
possessionw ould result. 
In the situation at hand, the respondents sought to establish that 
their right to adverse occupation is derived from the original owner in the 
form of permission or agreement or grant. Such is, so to speak, not 
adverse possession: Possession could never be adverse if it could be 
referred to a lawful title, such as the present situation which was based on 
alleged grant. It has always been the law that permissive or consensual 
occupation is not adverse possession. Adverse possession is occupation 
inconsistent with the title of the true owner, that is, inconsistent with and 
in denial of the right of the true owner of the premises (see the referred 
English cases of Moses v Lovegrove and Hughes v Griffin (supra). 
Having discounted the respondent's claim of a grant from Mr. Ulyate 
as well as the finding that they acquired the suit land through adverse 
possession, we would, on a balance of probabilities, accede to the 
appellant's claim that the respondents were mere licensees who were 
26 
invited to stay on the suit land on the terms prescribed in exhibit PS. In 
the end result, this appeal succeeds with an order that the appellant is 
hereby declared the lawful owner of the suit land, save for that portion 
comprised in Kilari Primary School which was donated to the local 
Government. It is further ordered that the respondents stay on the suit 
land is at the option of the appellant subject to the terms prescribed by 
exhibit PS or, if the appellant is minded to revoke exhibit PS, at such other 
conditions as she may prescribed. The appellant is awarded costs for her 
quest here and below. Order accordingly. 
DATED at DAR ES SALAAM this 6th day of August, 2018. 
K. M. MUSSA 
JUSTICE OF APPEAL 
A. G. MWARIJA 
JUSTICE OF APPEAL 
S. S. MWANGESI 
JUSTICE OF APPEAL 
I certify that this is a true copy of the original. 
qztL 
S. M. KULITA 
DEPUTY REGISTRAR(;_ .. '. 
COURT OF APPEAL 
27