165. Aggarwal v. Dhillon, Civ. Case 19-A-68, 24/4/69, Platt J.

A tenant in common of land

held under a right of occupancy brought an action asking the court to order 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 289 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 Gorden McDiarmed (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 no doubt. That Chapter is headed an
“Ordinance to apply the English Law of Property and 290 (1969) H.C.D. - 138 – 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 the 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 he 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 291
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. (1969) H.C.D. - 139 – 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) 292 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”.
434. Chibaya s/o Mbuyape v. James s/o Mlewa , (PC) Civ. App. 104-D-67, 20/11/67, Hamlyn
J. Plaintiff sued defendant in Primary Court for cattle and goats in respect of bride price. The
action was governed by Gogo customary law, and the judgment for defendant was based upon
the opinion of Gogo assessors as to this law. On ap peal to the District Court, the magistrate,
sitting without assessors, reversed the judgment and entered judgment for plaintiff. Held:
“Customary law ……. Is the law originating in the customs of a par ticular locality or tribe and
(unless of course such law is contrary to the general law of the country or is immoral or
otherwise objectionable) remains the law of 377 that locality until it becomes changed by general
usage of the applied law. It is not for the courts to reasons.” As the judgment of the primary court
was based on the opinion of persons well versed in Gogo customary law, it was reinstated.

Lasack s/o Nguvumali v. Petro s/o Bikulako (substituted by Mtalikwa s/o Bikulako) , (LC))
Civ. App. 1-DSM-67, 22/6/72, Onyiuke, J. The suit was instituted in 1961 at the Kalinzi Local
Court in Kigoma District. It was a claim for trespass to a shamba. The original plaintiff was one
Petro s/o Bikulako who has since died. His representative is Mtalikwa Bikulako who is the
respondent in this appeal. The original defendant, Issack s/o Nguvumali, is the 266 appellant.
The local court gave judgment for the plaintiff but ordered him to pay Shs. 100/= to the
defendant as compensation for the improvements (1972) H.C.D. - 146 - he had made while
occupying the shamba. The plaintiff’s case was that he inherited the shamba from his father
Ntore who had originally cleared it of bush. He claimed that he had planted coffee trees on the
shamba. The defendant claimed that he inherited the shamba from his guardian Mtango. He
claimed to have been using it for 30 years. An appeal was lodged by the plaintiff against the
decision to award 100/= to the unsuccessful defendant. The appeal was lodged in the Kigoma
Federation Appeal Court. The court dismissed the appeal against compensation, but confirmed
Petro’s title. Then the defendant appealed to the Regional Local Courts Officer, on the ground
that in a previous suit – Kilinzi Civil Case 88/1960 – he had been awarded the shamba and that
decision bound the court in the present case. He also appealed on the ground of undisturbed
possession for 31 years. It appeared that case 88/1960 had been brought by Issack against the
present plaintiff’s brother, not the plaintiff himself. The court in that case gave judgment for
issack on the ground that he had cultivated the shamba when his guardians, one of whom was
Mtango, died. The Region Local Courts Officer dismissed the argument of res judicata on the
grounds that Petrol was not a party of the previous case and that the judgment did not give issack
title against ‘all comers’ that is to say, against the whole world. On the ground of undisturbed
possession, it was the unanimous opinion of the assessors that : ‘The title of the original land-
holder and his heir is invariably superior to that of any secondary land-holder or tenant no matter
how long the latter may have been in possession’. Issack then applied for leave to appeal to the
High Court. Before this was granted the Local Courts Appeals Officer, by order, required
additional evidence to the taken by the Primary Court of Kalinzi .The primary Court inspected
the area and drew up a map. Additional evidence was given as to the shamba in dispute. Two
elderly witnesses, called by Issack, the issues of 267 the late Mtango, said that Issack could not
inherit the shamba from Mtango, because he was in no way related and was in fact Mtango’s
servant. Held: (1) “It is clear on the evidence that the respondent could not inherit Mtango’s
property assuming that the shamba belonged to him. Furthermore Mtango’s title to the shamba
was tenuous and was based on the fact that he cultivated the shamba once and apparently did not
live long enough to reap the harvest. On the other hand the evidence of Ntore’s title to the
shamba was considerable and was given by elderly witnesses who had nothing to gain by telling
lies. Ntore was a member of the village in which the shamba was situated as opposed to Mtango
who belonged to a different village. I hold on the evidence that the shamba in dispute originally
belonged to Ntore. Mtango’s alleged cultivation of the shamba for one season could not defeat
Ntore’s title to it. The opinions of the Assessors who sat with the Regional Local Courts Appeals
Officer confirmed this (1972) H.C.D. - 147 – view. The appellant cannot therefore base his claim
to the shamba on Mtango’s alleged title.” (2) “I now turn to the second ground of appeal which
was founded on suit 88/60. The respondent as far as the record was concerned was not a party to
the case but Mrisho who was alleged to be his brother was. The question for consideration is
whether the respondent was bound by the decision in that case. I have studied the available
record of that case. The boundaries of the plots of shamba in suit 88/60, one on which he stated
he planted Eucalypty trees and the other coffee trees. The appellant based his claim to these plots
of shamba on the fact that the inherited them from Mtango, Bugabo and Barunguza whom he
claimed were his guardians. The Local Court gave Judgment for the appellant on the ground that
he cultivated the plots after his guardians’ death. Mrisho, be it noted, did not defend the case on
behalf of Ntore’s family, nor was Ntore’s title put in issue in that case. It is difficult therefore to
see how the present respondent can be bound by that decision simply because the person who
was 268 alleged to be his brother was the defendant in the case. It is however contended that
Mrisho’s failure to plead Ntore’s title amounted, in effect, to a declaration against interest which
should be binding on the respondent. A declaration against interest is an admission but not a
conclusive admission. It does not amount to estoppels. Secondly the respondent was not claiming
through Mrisho but was rather claiming independent of him. Thirdly the boundaries of the plots
in dispute in suit 88/60 were not clearly defined and it could not be said with any degree of
certainty that Mrisho knew that Ntore’s land was involved in the case. The sketch map drawn by
the Primary Court showed that the shamba in which the appellant planted Eucalyptus trees,
shamba G, which was one of the plots involved in suit 88/60 was not being claimed by the
respondent. This apparently was the plot claimed by Mrisho to belong to Rungo and Barunguza.
It is noteworthy that the appellant based his claim on the title of mtango, Bugabo and Barunguza
(his alleged guardians) without specifying which plot belonged to whom. Lastly, the appellant
based his claim on the long user of the shamba without interruption. There was evidence,
however, that he occupied the shamba in the respondent’s absence and against all warnings. He
had notice therefore of Petro’s title. Petro had effectively re-asserted his title by planting coffee
trees on the shamba which had matured. The award of 100/= was designed to compensate the
appellant for whatever improvements he might have made on the plot of land and I hold, as the
lower courts did, that this was fair enough (3) “In the final result I will dismiss this appeal and
confirm the decision of the Kalinzi Local Court awarding the shamba in dispute to Petro and his
heir. I will also confirm the award of 100/= to the appellant.”

Jayant D. Desai v. Hashi Warsama , (PV) Civ. App. 51-D-66; -/6/67; Hamlyn, J.

An Asian doctor sued defendant, a Somali, for house rent and medical fees. The Primary Court entered
an ex parte judgment in his favour. The District Court ruled that the Primary Court proceedings were a
nullity, since that court had no jurisdiction, recovery of rent being a matter for the Rent Restriction
Board. Plain tiff argued that the Primary Court did have jurisdiction to hear the case as one involving
“Customary law” since it is “a custom of people to lease houses and pay rent therefore.” Held :
“Customary Law” cannot be the basis of any proceedings between parties “who meet on no common
ground of legal procedure and jurisprudence.” Appeal dismissed.

163. Robert F. Lugakingira v. Leonard F. Lugakingira , (LC) Civ. App. 13-D-63; /6/67; Hamlyn, J. This action
concerned the division of a house and plot among the heirs of de ceased. The appellate court which 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 ani
mosity 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 prop erty 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 Gov ernment,
(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 dis tributed.

293. Rehmtulla Bandali v. The Commissioner of Transport, The East African Railways and Harbour
Administration . Civ. Case 157-D-1967, 3/7/69; Biron Ag. C.J. By a lease entered into in or about March
1966, the plaintiff demised to the Administration premises situate at Vwawa. The Premises were
destroyed by fire on the 27th November 1966 and the plaintiffs file a plaint on the 27th December 1967
claiming damages both in contract and in tort. In contract he claims a breach of condition in the lease
not to use the premises for purposes other than as a Road Service Station and in the alternative on an
implied term not to store, case or allow to be stored any hazardous articles or substance likely to cause
damage to the premises. In tort that the fire was caused as a result of the defendant’s negligence in
filing to take proper care and precaution to safely store two drums of petrol, thereby leading to their
catching or accelerating fire. Before dealing with the substantive claim the court determined as a
preliminary point of law whether the claim was time-barred. The Administration contended that by
Section 93 (b) of the East African Railways and Harbours Act no action or legal proceedings shall lie
against the Administration unless it is commended within twelve months of the act complained of. The
plaintiff’s claim having been instituted thirteen months after the act was therefore time barred. In the
counter submission it was stated that by Section 93(b) o the above Act no action would commence until
at least one month after the written notice has been served on the defendants, and that Section 15(2) of
the Indian limitation Act 1908 provided that in computing periods of limitation for suits the period of
notice where such is given shall be excluded, hence the suit was no time barred. The Administration
then argued that the two sections referred to being seemingly inconsistent provisions of the Treaty for
(High Commission) Order in-Council, 1947, and the Interim Constitution of the United Republic of
Tanzania shall apply to the effect that where there is any inconsistency between the 1(ca) laws of the
High Commission, the latter shall prevail. Held: (1) “I consider, and so hold, that here is no inconsistency
between section 15 (2) of the Limitation Act and section 93 (b) of the East African Railways and Harbours
Act, but that they are mutually complementary, and both can be applied without one infringing the
other; that in computing the period of limitation, the period of notice is excluded. I, therefore hold that
the claim is not time-barred.” (2) The notice of and was aware of a warranty or condition in an insurance
policy taken out buy the plaintiff prohibiting the storage of petrol. (3) “To deal first with the claim as laid
under contract: Although Mr. Kuss submitted, though not with any great force, that as a Road Service
Station, petrol would normally be handled and stored, as I think, sufficiently demonstrated, taking into
account the terms of the lease, including the obligation of the landlord to insure, and the conditions or
warranties of the policy of insurance he effected in performance of his part of the agreement, or which
the Administration had due notice and was well aware, I have not the slightest hesitation in holding that
in storing, as it did, the two 44-gallon drums of petrol on the premises, the Administration was in breach
of its agreement with the plaintiff.” (4) “To turn to the issue in tort: I will, I hope, be forgiven if I deal
with the points of law involved rather briefly, though not too summarily, and confine myself to
principles which, I think, well established, without citing any cases in support thereof. It is, I think not
disputed that the law in this country with regard to liability for fire is the same as in England, as provided
for in section 2 of the Judicature and Application of Laws Ordinance (Cap. 453 – Supp. 61) – Section 2(1)
and 2(2) …… Although in England, liability for fire was at one time absolute, since the passing of the Fire
Prevention (Metropolis) Act, 1774, which extends to the whole country, “no action, suit or process
whatsoever shall be entertained or prosecuted against any person in whose house, chamber, stable,
barn or other building, or on whose estate any fire shall ….accidentally begin”. Without citing any
authority, it is well established that responsibility for damage will not lie unless negligence has been
established…. I consider that it is now well established that in cases of fire, the doctrine of res ipsa
loquiton so as to render the occupier of the premises wherein a fire breaks out liable without any
further proof of negligence, will not apply. Without indulging in an academic exercise as to how fires can
and do break out, it is, I consider, well established in law that to hold an occupier of premises liable in
damages for fire breaking out on such premises, there must be positively established negligence on his
part ….. on this question of negligence, the stationmaster stated that the two drums of petrol were kept
in the store under a pile of about 50 coffee bags, each weighing about 200-300 lbs. I have not the
slightest hesitation in finding that to so store two 44-gallon drums of petrol constitutes negligence.
Further, It also constitutes a breach of statutory duty, in that it violates rule 28 of the Petroleum Rules
made under the Petroleum Ordinance (Cap. 225 – Supp. 61), ( which stipulated that alliance was
required for the storage of petroleum except under certain circumstances which did not apply in this
case. Further, the stationmaster, although he was rather vague on this, as on other aspects, did not
know how many fire extinguishers were kept on the premises, or whether they were all not in working
order – as noted, the one he did try did not work. He, apparently, assumed that the others, if others
there were, were also not in fire had started. Be that as it may, it is abundantly clear that the outbreak
of the fire was not due to the petrol drums stored on the premises. The administration, therefore,
cannot be held liable for the outbreak of the fire. The matter, however, still does not end there, for even
if the Administration was not responsible for the outbreak, if on account of its breach of contract,
negligence and breach of statutory duty, the damage was aggravated, the Administration would be
liable for the damage caused in corresponding proportion to the excess damage caused by the presence
of the petrol drums on the premises. It is, therefore, necessary to apportion the damage caused
between the original outbreak of the fire and the excess caused by the petrol drums being on the
premises. I must confess at once that I find this a well nigh impossible task. But that does not absolve
the Court from determining the question. The plaintiff had insured the premises for Shs. 35,700/-. In
evidence he gave the value of the premises as Shs. 35,000/- The premises, he contends, have been
completely destroyed. His evidence as to that is not disputed, but rather borne out by the photographs
produced. He, therefore, claims as damages Shs. 35,000/-. Reviewing the evidence as a whole, and it
cannot be overstressed how sparse and unreliable it is, one cannot, to my mind, escape the conclusion
that but for the presence of the petrol drums on the premises, the damage caused by the outbreak of
the fire would have been very, very much less than the damage that actually resulted …….. On due
consideration of the evidence and of the surrounding factors as a whole, I consider a fair apportionment
of the damages to be borne by the parties respectively, of the total of Shs. 35.000/-, to be Shs. 15,000/-
due to the outbreak of the fire itself, for which the Administration cannot be held responsible or liable,
and Shs. 20,000/- for the damage caused by the presence of the petrol drums on the premises, for
which the Administration is liable.”