paulina paulo

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI LAND APPEAL NO. 26997 OF 2023 (Originating from Application No. 86 of 2017 of District Land and Housing Tribunal at Babati) PAULINA PAULO........................................................... APPELLANT

VERSUS MARIA DUKHO.............................................................. RESPONDENT

JUDGMENT 28th February and 12th April 2024 MIRINDO, J.: Both Maria Dukho, the respondent and Elizabeth Paulo, the elder sister of Paulina Paulo, the appellant, were wives of Saqware Lagwen who died in 2013. Later on Elizabeth Paulo was re-married to another man. Following the death of their father, Paulo Gwayd Moringa in 2006, Elizabeth Paulo and Paulina Paulo, and their siblings inherited portions of land in 2016 from their father’s estate located at Ng’wangeri Village, Qash Ward in Babati District. Paulina Paulo brought an action before Babati District Land and Housing Tribunal that Maria Dukho invaded the plot she inherited from the estate of her late father. At first the case proceeded ex parte and she won but the ex parte 1 decree was set aside and the case was heard inter parties. She lost and has now appealed to this Court on four grounds of appeal. Before this Court Paulina Paulo was represented by Mr Paschal Peter, learned counsel and Maria Dukho had the service of Mr Abdallah Kilobwa, learned counsel. Mr Peter, learned counsel, abandoned three grounds of appeal and argued only the first one. The complaint in the first ground of appeal is that the trial tribunal arrived at a wrong decision in favour of Maria Dukho because it did not visit the suit land in view of boundaries dispute between Maria Dukho and Paulina Paulo. Mr Kilobwa, learned counsel responded that a

visit in locus in quo is done upon request from the parties and only so under exceptional circumstances. In support of this view, the learned counsel made reference to Nizar MH Ladak v Gulamali Fazal Janmohaed [1980] TLR 29. In dealing with this ground of appeal, I will review the evidence from the trial tribunal to determine whether a view to the suit land was crucial. Before the trial tribunal there were different versions regarding the suit land. The evidence of the applicant, the present appellant, was to the following effect: One, the plot size in the estate of late Paulo Gwayd Moringa at Ng’wangeri Village, Qash Ward in Babati District was between twenty and twenty-four acres. Two, there was an implicit licensor and licensee relationship between Elizabeth Paulo and her late father whereby Elizabeth was allowed to cultivate the suit land with her late 2 husband Saqware Lagen. Three, all the portions of land belonging to their late father including the suit land of four acres was jointly used by family members after his death in 2006. Four, Paulina Paulo inherited four acres of land from the estate of his late father in 2016. Fifth, Maria Dukho invaded the suit land in 2017 when she began cultivating it. The evidence of the respondent, Maria Dukho was that the suit land of five acres belonged to the estate of her late husband whom she married in 1970. She found her husband

and his senior wife, Elizabeth Paulo, cultivating the suit land, and she joined them in cultivating it. At that time, they had cultivated only three acres and later on they expanded the area to ten acres. The rest of the respondent’s evidence challenges the validity and findings in the administration of the estate of the late Paulo Gwayd Moringa and it is immaterial for the purposes of this appeal. There is no doubt that Maria Dukho lived peacefully with Paulina Paulo during the lifetime of her father Paulo Gwayd Moringa. It is also clear that the current dispute arose after distribution of the plot belonging to his estate in 2016. These two findings give rise to two issues. The first issue is about the occupation of occupation of the suit land during the life time of Paulo Gwayd Moringa. The evidence of Paulina Paulo, her elder brother Gabriel Paulo and Dismas Massay, a neighbour to the late Paulo Gwayd Moringa is consistent that the portions of land of their late father were in the peaceful hands of all family 3 members until it was distributed among the deceased children in 2016. Also, consistent in Paulina Paulo’s case is that the suit land was used by their sister Elizabeth Paulo and her late husband until she remarried to another family and apparently left the land in dispute. It was Paulina’s case that Elizabeth was to use the land for a while with her husband and then

return the land to the estate of Paulo Gwayd Moringa. Implicit in the Paulina’s case is that the estate of Paulo Gwayd Moringa resumed occupation of land once Elizabeth remarried and left the land in question. On this account, the occupation of the plot could not revert to the estate of Elizabeth’s husband and her wife Maria Dukho, the respondent in this case. These facts give rise to a situation that is governed by rules of licensing under the common law. The provisions of subsection (1) of section 180 of the Land Act [Cap 113 2002] authorize courts to apply customary law, and the substance of the common law and the doctrine of equity “which appear to be relevant to the circumstances of Tanzania” in determining land disputes under the Land Act or “any other written law.” Reference to any written law suggests that the common law unless abolished or is in conflict with Tanzanian written laws or customary law is applicable in determining disputes under the village land. The common law rule as set forth in Wood v Leadbitter (1845) 13 M & W838 at pages 844-845 distinguishes between a mere or bare license and license coupled with grant of an interest: 4 .... A mere license is revocable but that which is called a license is often something more than a license; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it, so as to

defeat his grant, to which it was incident. It may further be observed, that a license under seal (provided it be a mere license) is as revocable as a license by parol; and, on the other hand, a license by parol, coupled with a grant, is as irrevocable as a license by deed, provided only that the grant is of a nature capable of being made by parol.... This distinction has been detailed by Narayana, PS Law of Easements and Licences: Commentaries on Indian Easements Act, 1882 [Act No V 0/1882], 3rd edn, Hyderabad: Asia Law House, at page 334: Whether the act which is allowed to be done is a bare licence or something more than a licence will depend upon the terms of the transaction. If a person is allowed to do something on the land without interfering with the nature of the land or without taking any profits from its, such transaction can be described as a bare licence. Thus if A is allowed just to pass over the land of B, such an interest can properly be described as a bare licence. A merely walks over the land. He has no right to occupy it. He does not take any profits out of it. He does not enjoy the land or its profits in any way. He is merely allowed to do an act on the land which, but for the permission will be unlawful. The position however will be different if B allows A not only to pass over his land but also to take exclusive possession of the same, to plant trees over

it or to set up cattle troughs or to prepare cow-dung cakes on it or to put up constructions of a permanent nature on it to cultivate it by carrying on agricultural operations on payment of rent. The interest carved out in this fashion cannot be termed to be a bare licence or a license pure and simple. It is an interest of a complex nature comprising within itself composite features both of a licence as well as of a grant. In so far as it allows the licensee to do some act on the land it partakes of the character of a license. In so far however as it further allows the licensee to hold exclusive possession of the land, to use it for his 5 own personal enjoyment, to plant trees on the same and to benefit himself by the fruits of the said trees, to construct a house and reside therein and to carry on agricultural operations on the said land and enjoy its usufruct or produce, the transaction presents the features of a grant. A transaction like this may be described as a licence-cum-grant... At common law a licence coupled with grant of an interest was not enforceable unless it was in writing but it was enforceable in equity and since the fusion of law and equity by the Judicature Acts of 1873 and 1875 the rule of equity of prevails is position of the law is stated in Burn EH and Cartwright, J, Maudsley and Burn's Land Law: Cases and Materials, 9th edn, Oxford: Oxford

University Press, 2009 at page 1085: It is an anciently established rule that a licence coupled with a proprietary interest (in land or in a chattel) is irrevocable... The interest must, of course, have been correctly granted... In the grant of incorporeal hereditaments in realty at common law, a seal was needed; but, since the Judicature Act, a specifically enforceable contract to grant an interest suffices to create in equity the equivalent interest. [References omitted] There is consistent evidence from the appellant herself and her two witnesses that Elizabeth was given the plot for cultivation. For easy of convenience, I reproduce portions of their evidence. In cross-examination, Paulina Paulo, stated in Kiswahili in the handwritten version of the proceedings that: ...Baba yangu ndiye aliyemruhusu Elizabeth na mumewe wakae tu kwenye shamba letu la familia na kulima. Wakati huo mimi nilikuwa bado msichana tu. Elizabeth na mumewe ndio waliolima shamba letu baada ya kuruhusiwa na baba; Maria sikumuona akilima shamba letu. Elizabeth na mumewe hawakupewa sehemu ya shamba letu kama lao, waliruhusiwa kulitumia na baada ya muda waliacha shamba hilo na kuondoka wakaenda kuishi kwingine, mimi sifuatilii maisha ya mtu. 6 The second appellant’s witness, Gabriel Paulo, the elder brother of the appellant, in response to questions from one of the assessors stated in Kiswahili in

the handwritten version of the proceedings thus: Elizabeth alipigana na mumewe na kutengana. Baba alimruhusu alime shamba lake ili apate chakula.... Part of the evidence of the third appellant’s witness, Dismas Massay, in Kiswahili is that: ...Elizabeth alipewa eneo la baba yake alime baada ya kukosana na mumewe. Ndio akawa analima... It is clear from these pieces of evidence that Elizabeth Paulo was a licensee with exclusive possession of the plot. This kind of licence is irrevocable, binding on the licensor, (in this case her father) and all its successors in the title, and it could be assigned to a third party (Elizabeth husband or her second wife Maria Dukho). This conclusion is further supported by the fact that there was no dispute regarding this plot during the lifetime of Elizabeth’s father. The dispute arose only during the administration of his estate. As long as this Court is satisfied that the licensee had exclusive possession of the suit land, it is irrelevant that the suit land was given to Elizabeth after remarrying to another man. What matters is that her father gave her the suit land for exclusive possession. Should this view on the appellant’s evidence be rejected, I would in the alternative accept the respondent’s evidence that suit land belonged to her late husband considering that there was no dispute regarding use of the suit land during the life time of

Elizabeth’s father. 7 The second issue is in relation to the size of the suit land given that Paulina Paulo, the appellant, claimed it to be four acres while according to Maria Dukho it is five acres. Maria Dukho also disputed the northern and western boundaries to the disputed land. This is the essence of the ground of appeal which was argued in this Court. Paulina Paulo’s case was that the suit land belonged to the estate of her father whose size is uncertain. In the handwritten version of the proceedings before the trial tribunal, Paulina Paulo in cross-examination, is recorded stating in Kiswahili as follows: Baba yangu Paulo aliacha shamba la ekari 20 na kidogo, hatukupima kitaalamu Similar description was provided by Gabriel Paulo, Dismas Massay, and Christina Paulo, who were second, third and fourth appellant’s witnesses. Despite this uncertainty, Christina Paulo, the administratrix and fourth witness for Paulina Paulo administered twenty-four acres of land as part of the deceased estate. It is in evidence that Paulina Paulo was given four acres from the estate of her late father. The fourth witness for Paulina Paulo, Jeremiah Ntagwa, the court broker who handled the four acres to Paulina confirmed that it is that piece of land which is the subject-matter of the present dispute. These accounts confirm that both parties were at one regarding the nature of the suit

land. 8 As was reaffirmed in Avit Thadeus Massawe v Isdory Assenga [2020] 1 TLR128; (Civil Appeal 6 of 2017) [2018] TZCA 357 (13 December 2018), a view of the locus quo is an exceptional procedure enabling the trial tribunal to clear doubts arising from the evidence adduced at the trial. In view of the evidence adduced at the trial, there were no doubts to be cleared by viewing the locus in quo. The complaint that the trial tribunal arrived at a wrong decision by not visiting the locus in quo is unfounded in light of the evidence adduced at the trial. Accordingly, I affirm the judgment and decree of the Babati District Land and Housing Tribunal and dismiss the appeal. Given the nature of the dispute, it is ordered that each party shall bear its own costs. DATED at BABATI this 23rd day of March 2024 F.M. MIRINDO

JUDGE Court: Delivered this 12th day of April, 2024 in the presence of the appellant in person and in the presence of the respondent in person and his advocate Abdallah Kilobwa, B/C: William Makori (RMA).

IRINDO

JUDGE 12/4/2024 9