Registered Trustees of Holy Spirit Sisters Tanzania vs January Kamili Shayo and Others (Civil Appeal No. 193 of 2016) [2018] TZCA 773 (6 August 2018)

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA {CORAM: MUSSA, l.A., MWARIJA, l.A. And MWANGESL J.A.} CIVIL APPEAL NO. 193 OF 2016 REGISTERED TRUSTEES OF HOLY SPIRIT SISTERS TANZANIA .......................................................... APPELLANT VERSUS JANUARY KAMILi SHAYO AND 136 OTHERS ............................ ;RESPONDENTS (Appeal from the decision of the High Court of Tanzania at Moshi) (Mziray, J.) dated the 14 th day of November, 2013 in 12 th March & 2ist August, 2018 MUSSA, J.A.: Land Case No. 11 of 2012 JUDGMENT OF THE COURT 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 gain 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." 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 support·of the case for the respondents were, namely, John Ramadhani Karinga (DW4), Edward Mbise (DW2) Ramadhani Karinga (DWl) and Aminiel Elisamia Mushi (DW3). If the list of respondents on the record of appeal is anything to go by, these are, respectively, the 33 rd , 30 th 42 nd and the 93 rd 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:- "1. 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.,~l)fl..:-Qn time .. ' ',. ::i ·-· _., ~ ~ : - .. 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 without value. 5. The trial Honorable High Court Judge erred in law and fact 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 fact by holding that the Respondents were not the trespassers on the dispute farm. 8. The trial Honorable High Court Judge erred in law and fact by failing 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 triai. 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 (PWl), 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 22 nd 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 10 th 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 15 th August, 1959 (exhibit P7). The registration of the appellant as -Y-rustees of the Holy Spirit Sisters of Tanzania was effected a good deal later, in the year 2004, whereupon on the 15 th 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 farrr, for the 6 use of the laborers. There . were also livestock an/mals 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 perqanent 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 other Jobs elsewhere. " 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 dem_ise. Thus, he adduced into evidence only two documents ( exhibit PS) which prescribed the conditions imposed on the 2 nd anct, 40 th 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 TAREHE 3 AUGUST, 1972 KILARI FARM SANYA JUU. . /'vJasista wa Roho Mtakatifu katika Jimbo la Moshi wanaomiliki shamba' la kilari {No. 7311 & 13986) Sanya Juu wanamruhusu Ndugu Hamisi Ally kuende!ea kutumia sehemu ya ardhi a!iyopewa 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 ki!ari, hivyo haruhusiwi 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 ki!ari kwa kuacha kazi ndugu Hamisi Ally analazimika kurudisha sehemu hiyo ya ardhi kwa masista wa Roho Mtakatifu kwa matumizi mengine, bi/a ma/ipo au madai ya. fidia. Signed Sr. Incharge Signed Bishop Joseph Kilasara Kwa niaba ya HOLY SPIRIT SISTERS kILARI FARM" 8 In the other portion of exhibit PS, similar conditions were imposed on the 40 th respondent, namely, Emmanuel Kisai. There was some further evidence to the effect that upon taking over the disputed farm, the appellants built on rt 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 17 th 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 9 th February, 1959. Mr. Malham then mortagaged the suit land to the Land Bank of Tanganyika on the 15 th August 1959. The mortagage was discharged on the 3 rd 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 Ma/ham Lawn Ray U/yate. He has been in occupation back in 1960's 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 336/2, 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 tq_ 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) ofthe 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:- ''I believe the version that the defendants are descendants of the laborers of the settler known as Ma/ham Lawn Ray U/yate and that they have been in occupation of the disputed land since the 1960'5. The said Mat.ham 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 appellant 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 farmer's severance and terminal benefits (see page 33 to 37 of the record). More particularly, in paragraphs 5 (h) (i), (j) and (k) the respondents claimed:- "{h) 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 Wid Villages. {i) That in 1972 when KILARI FARM was transferred to the Registered Trustees if the Diocese of Moshi, farm No. 336/2 was not transferred to it as it was already under the ownership of the defendant's fathers as KILARI HA/vfLET {KIT01VGOJI). The Trustees adopted and reinforced the demarcations which had already been fixed by planting various traditional trees along the demarcations so as to separate KILARI HAMLET from other farms. {j) 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 'michongoma;'/ or "K- apple. '' 15 {k} That in 2011,, when a suit land registered under title NQ. 7311 and 13986 was transferred,, from No. 336/2 was not a property of the Registered Trustees of the diocese of Moshi. So it was not transferred to the plaintiff as the trust could not transfer a property not belonging to 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 PS 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 10 th March, 1972. Then according to the documents on the lsth 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. Itis 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 similar. It is true that there were conditions on which we agreed with Bishop Kilasara for us to say at Kilari 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 -viz-farms 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 27 th 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 Presideot. J (2) In this regulation "disposition// means - {a) A conveyance or assignment other than by way of mortgage,, or a gift, settlement, deed of partition,, assent, vesting declaration,, or a sale in execution of an order of court; {b) A mortgage other than- {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 declaration 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 of 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 j ., 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 ls something in the nature of a lease and a holder of a right of pccupancy 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 tl of the court in the case of Abualy Alibhai Azizi versus Bhatia brothers Ltd [2_000] T.L.R. 288 thus: - "1. · In ascertaining what we consider to be the axrect interpretation of the expression, ''shall not be operative" in regulation 3 of - the Land Regulation~ 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 j that the expression ''shall not be operative" as used under regulation 3 of the Lar;d Regulations 1948 and 1960, 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 invalidity, what then does it mean? Logically, · 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 factors, 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 occupancy is 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 NfflN's case. It is our considered opinion that a contract falling within the scope of regulation 3 has all the 22 attributes of a valid contract except those/ of which performance before the requisite , consent is sought and obtainect, 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. To 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 . occupier's right to occupation was derived from the owner in the form of permission or agreement, 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 possession with 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 J 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 dispossess and an animo possidendi; {f} that the statutory period, in Jhis 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• . possession would 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 permissi9n 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 ct 1:-' • , ~ l,i 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 6 th 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. qzJL S. M. KULITA DEPUTY REGISTRAR COURT OF APPEAL 27