20020722 TZHC Bukoba

\. IN 'l'HE HIGH COURT OF ,:tANZANIA ·-., ' .. · . ALLAN MUNANGA ...............................-•••••·• • • A l ? ~ \fERs'us· NICOLA US R. MHERERE .r• ••• -...-••• • • ••• ~ .-• • •. • • • • • • ••• RESP<JrfilENT

JUDGMENT ~ANCHE 1 J. 0 The appellant concedec that he has wo, \he tM• i i the two Cou?'t8 below. He says he is aggrieved at the ol'de~· made ia those wo c.tl'ts (nfa"de by the Primary Court, and endorned 'by th• ])i8tri~ Caurtf that he w~ at the plot not illegally. But aince the sd• law 1\0',lf dictates t-liat ., fhe respondent should hand over the piece •f land, the 3ppellant ah~"1d compensate the respondent. The respondent refuse11 to oompensate:, The / brief f~cts of the case are that the appellant 18 fsthe~ was all~ted the ·piece of land befoi-o 1975 and, that, even when o,eration Vijiji cmne, the plot was not disturbed• In other words it remained the property tf the fnther of the appellanto The respond~nt, ~~la;1~ .•~ !_~~~J. w ~ t p . ~ evidence in the primary Court, invit~d by the -father of the appellant.· And, indeed~ he built a house there. It is also apparent ~ha~~~~­ was left to use the land for quite a long time, undieturbe~ I think the two Courts got the grasp 01 the f:icts but not the law, The two Courts have held that the facts of the ease suggest that he was a lice~ee, as opposed to an invitee. And tbet sinee he was a liJensee then, surely, as the lnw provides, he should be e<>mpensated for. the improvements madei On the other hand, if he was an invitee then, he could not, for the law says that an invitee~ who ~~oTes a plate of land or who builds a house·

know'ing that he is· ah invitee, ~ eo · at l\i.s Ot,ltl 0 risko This is so because "no invit~e es.n ~xelud& his l\ost wha.tewr the ..... . . lengtll of hi& _ou:upaney (see Mkakofia Merianm,ga 1f Asba C - - 1$0 :d/-•~i!; J!J9Sj ¥ I • . The two Courts below, have held that the resppdellt was not an il(vitee but a licenaee, and, so, whatever imprtjvemants he e!feets, the_ .same must be compensated for: Who is an invitee and who is a licensee? cour,ts · M.ave h~1d that sometimes it does not become easy to differentiate the twat OY even tlf"' define them: ,._ - . In Ellis v Fulham Borough Council Mac Ki~o1' CJ saidt .::< £t' J,2..;, --~31'! ~ • 3 All EeR. (pp 463 - 465): 1'The question_ has been raised in this case wheths~ this child ought to be regarded ~ jan :lnvitee ~- a lic.enaeeo The difference betwee4 the twe m;., be in some cases difficult of definitionJ TI» ' best definition, as it seems to me, to bif · derived from thP. cases, is that very neitty stab,~d in sa1.mon.d on Tort 9th Edn ,pj5J44· w~e he says th-;,-~~~=~-~;itee-;is a pers4n who receives permif:sion from the occupier a.e 8l ma~tej of business -and not as a matter of grac•• An · for invitation is a request t<:> enterlthe ➔se p tne occupiers~ e. ];_~~ is a penrl.ssion t, l"te» for tl1e purpose of the entrant himself• rt'fi i.;.-;.-Jitor says~ rr thank you to enter UPOJl rJy b·,;_sfor,,ss 1 o T~e 1:5.csnsor say-$t, I

permit Jou. ~ enter en ycur own business•.~ The lJass,'.'lge was later quoted with apprO'V'al vy- l{j.lb.e~ J in !'1aseldii!b·2\1-- • ••1: . ~Daw and Sons Ltd and Othert. f;t9 1+17 1 All J!l.1'{. :;21 $.t 1 531~- Ia ordi,na;py mans language, an invitee stays there f o r ~ i,e. for the welfare Qt the invitor. He therefore is not exp6c1!-ed to make al\y !mpz»~ements e» is not expected to eventually oust the host, Adverse 1'8se~si•a, limitatiwi period, do not apply to him. This cate~ i-.oilldea iz'etakePs• In laymans out look,f a licensee, howev-e~, i.. a person who stays in the ai-ea and san .. do things for himself and these things. t:1.1"-e prot~cted• O! the tw~,"a licensee is superior. 3 .. To come back to the instant casE;, the respondent, the tw(J Courts below,_ have said that he was a licensee. I read !1"$ltl the .re.eO!"d that he was a captain of the .Army. They must have respected him as a licensee and thnt is why he built houses and made g~d dev~iopment. I,. like the two Courts below~ agree that he shouid b,e ~~ .., The appeal is dismissed. It is dismissed with oo~ts. J. E, C• MASANCHE

JUDGE • Respondent ( Nicolaus Mherere) - hbsant- -~~~=~-=--·rc-=-.:.:,:-_--,._~°"--~