GENERAL OVERVIEW ON LAND MATTERS

Introduction

The land tenure system of Tanzania has passed through different historical milestones which
form the basis for the analysis of the land tenure regime in general and tenure relations for land
owners and users in particular in the past eight decades. The history dates back to 1923 when the
British colonial legislative assembly enacted the Land Ordinance cap 113 to guide and regulate
land use and ownership in Tanganyika which was their protectorate colony. Prior to this law, all
the land in Tanzania was owned under customary tenure governed by clan and tribal traditions.
Ideally, elders of respective clans and tribes were bestowed with powers to determine land
allocations and resolve conflicts whenever they arose. When the 1923 land law came into force,
it ideally imposed radical changes on the land ownership and use pattern that existed prior to
colonialism. The noble arrangement in the local land administration systems were disrupted and
traditional institutions replaced with colonial machinery that had little regard on the rights to land
of the colonial subjects.

Tanzania got independence in 1961. However, no significant changes were made on the land
tenure regime. The only notable change made was the replacement of the word governor with
president. The law also clearly stated that, all the land in Tanzania is public but vested to the
president on behalf of all the citizens. Ideally, this notion entails that the president should be the
custodian of the people’s property which includes land.

The enactment of the Village Land Act[1] and Land Act[2] was thought to alleviate the problem;
however, the story has remained to be the old wine in the new bottle.

Objectives

By the end of this part, you will understand, the historical development of land law in Tanzania,
sources of land law, land administration and reforms in land law in Tanzania.
LECTURE ONE NOTES
1.1 Meaning of law
What is Law? Law is a System of rules and principles devised by organized society for the
purpose of controlling human conduct.

1.2 The meaning of land

According to section 2 of the Land Act includes ‘the surface of the earth and the earth below the
surface and all substances other than minerals and petroleum forming part of or below the
surface, things naturally growing on the land, buildings and other structures permanently affixed
to land.’ It can thus be noted that although land includes surface and subsurface substances, it
does not include mineral such as Gold, Diamond, Tanzanite, Copper etc

1.3 The meaning of land law

Land Law or property law is designed to regulate the relationship of persons to things whether
tangible or intangible, thereby providing a secure foundation for the acquisition, enjoyment and
disposal of things or wealth. It describes and regulates the rights, interests and estates on land. It
is therefore important to understand and define land, what it is and distinguish between land as a
property and or right and other properties. Land is peculiar property because it is immovable
unlike other properties, capable of being owned, it is transferable in its form, it is capable of
being owned in different forms, it means that different interests may exist on land simultaneously
and each interest is a right enforceable by each interest holder.[1]

It is a body of doctrines which governs the ownership of, commercial transfer and the use of
land. It focuses on relationships between land and rights which can exist in / over land and the
relationship between various persons who wish to own or defeat those competing interests. It is
about ownership, interests, restrictions and the machinery of law.[2]

1.4 Objectives of Studying Land Law

Generally the objective of studying land law is to get an understanding of the manner land is
managed and regulated. However the specific objectives include:-

(i) To acquire knowledge on the rights and liabilities attached to interests in land and how to
address them.

(ii) To acquire knowledge on the meaning of land and its distinction with other sets of properties.

(iii) To provide an understanding on the rules and procedure that regulates conveyance. A
conveyance deals with various people he must have in contemplation: - These include vendors
and vendees, mortgagors and mortgagees, lessor and lessees, ownership and encumbrances etc.
He must ensure that the client gets what he wants free from burdens. He must do his best to
ensure that what he get is not less valuable.

When studying land law you will benefit, as in any other legal subject, from a disciplined
approach and logical analysis, and as usual you also need to develop the skill of thinking and
arguing conceptually. However, land law is full of categories and subcategories. A successful
answer to any problem question will therefore depend upon accurate, comprehensive and logical
analysis of how the facts of the question fit into those categories.[3]

1.4 Sources of land law[4]

1.4.1 The Constitution

The constitution is the supreme law of the land with which all laws must be consistent. It
empowers the government to govern while at the same time, it places control mechanism to
prevent the power being used oppressively. The Constitution of the United Republic of Tanzania
1977 as amended from time to time, limits the power of the government in two ways. Firstly, it
imposes structural and procedural limitations on power in that the constitution stipulates which
institutions or organ of the state may exercise what powers, and sets specific procedural
limitations to be followed while exercising the power. The Tanzanian Constitution stipulates
which organ of state is vested with what power. Secondly, a constitution, principally through the
operation of a Bill of Rights, provides and imposes substantive limitations of the power and the
rights of the state and its subjects.

Article 24 of the URT Constitution (1977) as amended provides clearly for private property and
compensation to all those whose property has been acquired.

1.4.2 Written laws

Written law is probably the main source of land law in Tanzania. The expression “written law”
as opposed to the common usage “statute” or “Act of parliament” is used in statute law to
accommodate enactments which are not statutes. The term written law is defined in section 3 (1)
of the Interpretation of Laws and General Clauses Act, 197211 to mean

“All Acts and Acts of the Community (including subsidiary legislation) and includes all applied
laws”.

It includes all laws other than the Land Act and the Village land Act enacted by the United
Republic of Tanzania Parliament and those that were made during the colonial era which touches
on aspects of land. These include the Land Registration Act Cap 334, Registration of Documents
Act Cap 117, Land Acquisition Act 47/1967, the Land Disputes Courts Act 2002, and Cap 216
2/2002 etc.
1.4.3 Customary Law

According to section 180 of the Land Act other key laws to be applied include customary laws of
Tanzania.[5] Customary law means any rule or body of rules whereby rights and duties are
acquired or imposed, established by usage in any African Community in Tanzania and accepted
by such community in general as having the force of law, including any declaration or
modification of customary law made or deemed to have been made under section 9A of the
Judicature and Application of Laws Ordinance, and references to native law or to native law and
custom shall be similarly construed.[6]

1.4.4 English Law

The Received English land law consists of all case law establishing common law doctrines and
principles of English land law, and this includes the doctrines of equity on the subject. This
received law includes statutes of General Application that were in force in England by 1900.

1.4.5 Indian Laws

The JALA Cap 358 provides under section 14 for the application of Indian laws as were in force
on the 1st of December 1920. These include the Indian Succession Act 1865 which apply to
matters of intestate succession to Christians and people of European origin. This is a valid source
of land law as the inheritance may be of some interests in land.[7]

1.4.6 Islamic Law

According to section 2 of the JALA any court of law may apply the rules of Islamic law in
matters of marriage, divorce, guardianship, inheritance, wakf and similar matters in relation to
members of a community which follows that law.

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 LECTURE 2: notes

LECTURE 2: notes
1.1 Land and Property

What is “property?” The term is extraordinarily difficult to define. The problem arises because
the legal meaning of “property” is quite different from the common meaning of the term. The
ordinary person defines property as things, while the attorney views property as rights. Property
refers to rights and interests of ownership.[1] Most people share an understanding that property
means: “things that are owned by persons. The law defines property as rights among people that
concern things. In other words, property consists of a package of legally recognized rights held
by one person in relationship to others with respect to something or other object. For example, if
you purchased a book, you might sensibly believe that you own “the book.” But a law professor
would explain that technically you own legally-enforceable rights concerning the book. For
example, the law will protect your right to prevent others from reading that particular copy of the
book.[2]

Property is described as a “bundle of rights” in relation to things. But which “sticks” make up the
metaphorical bundle? The most important sticks in the bundle are: (1) the right to exclude; (2)
the right to transfer; and (3) the right to possess and use[3]

1. The right to exclude: Right to Exclude One stick in the metaphorical bundle is the right
to exclude others from the use or occupancy of the particular “thing.” If O “owns” Red
acre, O is generally entitled to prevent neighbors or strangers from trespassing. In the
same manner, if you “own” an apple, you can preclude others from eating it.
2. Right to Transfer: A second stick in the “bundle of rights” is the right to transfer the
holder’s property rights to others. For example, Mbuji might sell his rights to a buyer,
donate them to a charity, or devise them to his family upon his death. In our market
economy, it is crucial that owners like Mbuji can transfer their rights freely. But the law
imposes various restrictions on this right. For example, the owner cannot transfer title for
the purpose of avoiding creditors’ claims.
3. Right to Possess and Use; A third stick is the right to possess and use. As owner of piece
of land, J has broad discretion to determine how the land will be used. For example, he
might live in the house, plant a garden in the backyard, play tag on the front lawn, install
a satellite dish on the roof, and host weekly parties for his friends, all without any
intervention by the law. Similarly, if you “own” an apple, you can eat it fresh, bake it in a
pie, or simply let it rot. Traditional English common law generally recognized the right of
an owner to use his land in any way he wished, as long as (a) the use was not a nuisance
and (b) no other person held an interest in the land.

What “things” can be the subject of property rights?

Property is divided into two categories, real property (rights in land) and personal property
(rights in things other than land)
1.1.1 Real Property vs. Personal Property

Real property, also referred to as real estate, realty or immovable property, is any property
attached directly to land as well as the land itself. It is any subset of land that has been improved
through legal human actions. Real properties include buildings, ponds, canals, roads and
machinery, among other things. Real property is composed of any designated portion of land and
anything permanently placed on or under it. The elements on or under the land include natural
resources and/or human-made structures. Owning real properties involves different types of
estates, which define the rights of the owner to use, transfer and/or sell his real properties. These
estates are recognized by the law. The kind of estate depends on the terms of the lease, deed,
will, land grant and/or bill of sale through which the estate was received.[4]

Personal property is a type of property that is movable, it is not real estate. Personal property
may also be called chattels or personality. It is distinguished from real property or real estate
because personal property is generally movable property or movables - any property that can be
moved from one location to another. Personal property may be classified in a variety of ways.
Tangible personal property refers to any type of property that can generally be moved (i.e., it is
not attached to real property or land), touched or felt. These generally include items such as
furniture, clothing, jewelry, art, writings, or household goods. In some cases, there can be formal
title documents that show the ownership and transfer rights of that property after a person's death
(for example, motor vehicles, boats, etc.) In many cases, however, tangible personal property
will not be "titled" in an owner's name and is presumed to be whatever property he or she was in
possession of at the time of his or her death.

1.1.2 Fixtures and chattels

Fixture is a Personal property that is so closely associated with real property that it cannot be
separated without damaging real property. A fixture, as a legal concept, means any physical
property that is permanently attached (fixed) to real property (usually land) Property not affixed
to real property is considered chattel property. Fixtures are treated as a part of real property,
particularly in the case of a security interest. A classic example of a fixture is a building, which
in the absence of language to the contrary in a contract of sale is considered part of the land itself
and not a separate piece of property. Generally speaking the test for deciding whether an article
is a fixture or a chattel turns on the purpose of attachment. If the purpose was to enhance the land
the article is likely a fixture. If the article was affixed to enhance the use of the chattel itself, the
article is likely a chattel.[5]When a chattel is brought onto land it may retain its character as a
chattel or change its character and become a fixture. This becomes relevant in at least 5
situations:[6]

1. When landed property is sold, fixtures pass with the landed property without need for any
express mention to be made of them. Chattels do not pass without mention in the
contract.
2. A mortgagee is entitled to fixtures in the event of a default, but is not entitled to chattels
3. Chattels installed or upon a property which belongs to a tenant may become fixtures.
4. Fixtures installed in or on property by a life tenant become part of the reversion.
 5. On death, fixtures pass to the beneficiaries entitled to the realty, they are not part of the
personal estate of the deceased.

The general principal can be stated as “quicquid plantatur solo, solo credit” – “Whatever is
attached to the land belongs to the land.”[7]However, the cases on fixture are not always easy to
reconcile with each other, and disclose a lack of a real consistent principled basis for determining
whether an article is a fixture or a chattel.

In Reynolds v Ashley and son limited [1903] 1KB 87, CA;[1904]AC 466; HL, Lord Lindley had
this to provide;[8]

I don’t profess to be able to reconcile all the cases on fixtures, still less all that has been said
about them. In dealing with them attention must be paid not only to the nature of the thing and to
the mode of attachment but to the circumstances under which it was attached, the purpose to be
served, and last but not least to the position of the rival claimants to the things in dispute.

In Jordan v May [1947] KB 427, Asquith LJ had this to say;[9]

“Many authorities have been cited to us which purport to lay down criteria for determining what
is and what is not a fixture. Those criteria are not always easy to harmonise.

It is therefore stated that in order to distinguish between a fixture and a chattel, the following
should be considered (a) the degree of annexation to the land and (b) the purpose of such
annexation.[10]

1. Degree of annexation

In considering the degree of annexation, the question is whether the article can be removed
without damaging the land or the chattel itself. Advances in technology make it much easier to
affix and remove chattels without damaging the land, so this consideration has become less
important, and the degree of annexation is not the decisive test. Also typically, an article which
rests on the ground by its own weight will not be considered a fixture.[11]

1. Purpose of annexation
In considering the purpose of annexation, the question is whether the article was affixed to the
property for a temporary purpose and the better enjoyment of it as a chattel or with a view to
effect a permanent improvement of the property.

Articles of ornament are generally held to be chattels even though they are affixed to the
property since many of these articles cannot be enjoyed without some degree of affixation. So
paintings, tapestries and antique paneling were held to be chattels even though they were affixed
by nails or screws. However, where objects are for permanent beautification, the article may be a
fixture. So statues forming part of the architectural design of a building have been held to be part
of the property, even though they were resting on the ground only by their own weight.[12]

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 LECTURE THREE

LECTURE THREE
LECTURE THREE

1.1 Tenure and estates

Tenure and estate are the two basic doctrines of English land law .Essentially, the "estate"
defines for how long the land could be held and "tenure" defines the terms on which the land was
held. Both of these principles continue to be the bedrock of land law. It also remains the case
that only the Crown actually owns land is expressed in a feudal law summed up in a maxim nulle
terre sans seigneur meaning no land without a lord.[1]

The doctrine of tenure and estates is also applicable in Tanzania. Part 2 of the Land Act, 1999
declares that all land in Tanzania is public land vested in the President as trustee on behalf of the
citizens. The President is the superior landlord. He controls the whole land and he is the only
person who actually owns the land. The citizens occupying the land are doing so, which is a
duration of time upon which an individual can occupy and use the land. s. 4 (5) of the Land Act,
1999 provides that all grants of the right of occupancy shall be made in the name of the
President.
Both land tenure and estate are creatures of legislation. They are provided for under the Land
Act, 1999 and the Village Land Act, 1999.

1.1.1 What is land tenure?

Land tenure is the relationship, whether legally or customarily defined, among people, as
individuals or groups, with respect to land. It refers to a system of holding land. It is how land is
held. It reflects the quality of a person’s holding. It indicated a factual and social relationship
between a tenant and his superior.[2]

Land Tenure may also be defined loosely as the body of rules which governs access to land and
the relationship between the holder of land and the community on the one land and or that
between the holder and another party having superior title. The interests that may be had in land
is therefore defined, delaminated and explained within the framework of the Land Tenure
System. Because it is framed within the community concerned, the land tenure is quite
community specific, and is normally dictated by the socio-economic lives of the individual
community which in turn is shaped by the customs, economic, political and social realities of the
community.[3]

Land Tenure is always community specific, and the Land Tenure System of one community may
not be easily imported or adapted by another unless they have similar customs and socio-
economic beliefs.[4]

1.1.2 Estate in land

Estate in land is the degree, quantity, nature, or extent of interest which a person has in land or in
real property. It is an ownership interest in a physical area of land with a set geographic location.
It is an interest in real property that allows possession either now or sometime in the future for a
specific or unlimited duration.[5] The word "estate" in land law indicates an interest in land of
some particular duration.[6]“Estates in land” are possessory interests in land. These interests may
be presently possessory (present estates), or they may become possessory in the future (future
interests).They may be “freeholds, “which give possession under some legal title or right to hold
(e.g., fees or life estates), or they may be “non freeholds, “which give mere possession (i.e.,
leases).[7]

Estates in land may be of potentially infinite duration, as in the case of a fee simple, or they may
be of limited duration, as in the case of an estate for years. But whatever their characteristics,
“estates in land” must be distinguished from no possessory interests such as easements, profits,
covenants, and servitudes.
Historically and especially under the English common law system, estates in land were that of
the free hold and the lease hold. The free hold estate was classified in to three categories,
namely, the fee simple, fee tail and the life estate. Of all the three, the fee simple has been
described as the basic unit of ownership of land under English law and, therefore, the greatest
interest holders of land can possess.[8]

In Tanzania free hold estates were in place during both Germans and British colonial rules but
were abolished after independence.[9]

1.1.3 Types of Estates

There are two types of estates in land which are Freehold estates and Leasehold estates.

A freehold estate is a right of title to land that is characterized by two essential elements:
immobility, meaning that the property involved is either land or an interest that is attached to or
has been derived from land, and indeterminate duration, which means there is no fixed duration
of ownership.[10]

There are three kinds of freehold estates: a fee simple, a fee tail, and a life estate;[11]

1. 1. Fee Simple

A fee simple or fee simple absolute is the most extensive interest in real property that an
individual can possess, since it is limited completely to the individual and his or her heirs and
assigns forever, and it is not subject to any limitations or conditions. The grantee has the right to
immediate and exclusive possession of the land, and he or she can do whatever he or she wants
with it, such as grow crops, remove trees, build on it, sell it, or dispose of it by will. This type of
estate is deemed to be perpetual. Upon the death of the owner, if no provision has been made for
its distribution, the land will automatically be inherited by the owner's heirs.[12]

An estate in fee simple denotes the maximum ownership in land that can be legally granted; it is
the greatest possible aggregate of rights, powers, privileges and immunities available in land.
The three hallmarks of the fee simple estate are that it is alienable, devisable and
descendible.[13]

Types of fee simple

If previous grantors of a fee simple estate do not create any conditions for subsequent grantees,
then the title is called fee simple absolute. A fee simple absolute is the highest estate permitted
by law and it gives the holder with full possessory rights and obligations now and in the future.
Other fee simple estates in real property include fee simple defeasible (or fee simple
determinable) estates. A defeasible estate is created when a grantor places a condition on a fee
simple estate (in the deed). When a specified event happens, the estate may become void or
subject to annulment. There are two types of defeasible estates: fee simple determinable and the
fee simple subject to a condition subsequent. If the grantor uses durational language in the
condition such as "to A. as long as the land is used for a park", then upon the happening of the
specified event (in this case if the land is used for anything other than a park), the estate will
automatically terminate and revert to the grantor or the grantor's estate; this is called a fee simple
determinable. If the grantor uses language such as "but if alcohol is served", then the grantor or
the heirs have a right of entry if the condition occurs, but the estate does not automatically revert
to the grantor; this is a fee simple subject to a condition subsequent.[14]

1. 2. Fee Tail

Fee Tail concept is an old feudal expression for a title to real property which could only be
passed to one's heirs "of his body" or certain heirs who are blood relatives. If the blood line ran
out (no children) then the title would revert to the descendants of the lord who originally gave
the land to the title-holding family. Thus, it could not be transferred to anyone outside the family.
The intention was to keep lands within a family line and not subdivided.[15]

1. 3. Life Estate

An estate for life is an estate that is not terminable at any fixed or computable period of time but
cannot last longer than the life or lives of one or more persons. It may arise by operation of law
or may be created by an act or agreement of the parties.[16] Is an interest in property that lasts
for the life of a specified person. It is Called estate pour autre vie. A life estate terminates upon
the death of a named person and reverts back to the grantor.

1.1.3.1 Leasehold estates

An estate created when the owner of real property known as

the lessor or land lord conveys a possessory interest in the
real property to another known as the lessee or tenant, for a
specific period of time in exchange for the tenant’s payment
of rent.[17]

An unusual aspect of lease is that it is rooted firmly in two distinct areas of law; contract law and
real property law. Four different kinds of leasehold estate can be created. They are term tenancy,
periodic tenancy, tenancy at will and tenancy at sufferance.[18]
Types of Leasehold Estates
1. Estate for Years
The estate for years is characterized by a definite beginning and a definite end. When you rent an
apartment for two years, beginning September 1 and ending on the second August 31, you are
the owner of an estate for years. Virtually any period will do; although it is called an estate “for
years,” it can last but one day or extend one thousand years or more.[19]

2 Periodic Tenancy
As its name implies, a periodic tenancy lasts for a period that is renewed automatically until
either landlord or tenant notifies the other that it will end. The periodic tenancy is sometimes
called an estate from year to year (or month to month, or week to week). The lease may provide
explicitly for the periodic tenancy by specifying that at the expiration of, say, a one-year lease, it
will be deemed renewed for another year unless one party notifies the other to the contrary
within six months prior to the expiration of the term. Or the periodic tenancy may be created by
implication, if the lease fails to state a term or is defective in some other way, but the tenant
takes possession and pays rent. The usual method of creating a periodic tenancy occurs when the
tenant remains on the premises (“holds over”) when an estate for years under a lease has ended.
The landlord may either reject or accept the implied offer by the tenant to rent under a periodic
tenancy. If he rejects the implied offer, the tenant may be ejected, and the landlord is entitled to
rent for the holdover period. If he accepts the offer, the original lease determines the rent and
length of the renewable period, except that no periodic tenancy may last longer than from year to
year—that is, the renewable period may never be any longer than twelve months.[20]

2. Tenancy at Will
If the landlord and tenant agree that the lease will last only as long as both want it to, then they
have created a tenancy at will. Statutes in most states require some notice of intention to
terminate. Simone comes to the university to study, and Anita gives her a room to stay in for
free. The arrangement is a tenancy at will, and it will continue as long as both want it to. One
Friday night, after dinner with classmates, Simone decides she would rather move in with Bob.
She goes back to her apartment, packs her suitcase, and tells Anita she’s leaving. The tenancy at
will terminates that day.[21]

1. 4. Tenancy at Sufferance

In a tenancy of sufferance, the term of the lease ends only when the landlord or property owner
asks the tenant to leave. Just like other types of leases, a tenancy at sufferance has a specified
period or term. However, the tenant in this type of lease agreement can continue to occupy the
property even if the leasehold term has expired. Consequently, the tenant will continue to pay the
lease until such time that the landlord terminates the tenancy.[22]
[1] www.academia.edu/24466109/Meaning_of_land_at_common_law accessed on 2nd August,
2016 at 12.33

[2] http://www.fao.org/docrep/005/y4307e/y4307e05.htm, visited on 2nd august, 2016 at 11.45

[3]Aina,K., National Open University of Nigeria, Land law, pp.4

[4] Ibid

[5] http://legal-dictionary.thefreedictionary.com/estate, accessed on 2nd August, 2016 at 12.14

[6] http://obiterj.blogspot.com/2011/09/english-land-law-no1-estates-in-land.html, accessed on

2nd August, 2016 at 12.14

[7] https://www.barbri.com/files/courses/barbri_barreview_example_realproperty.pdf, accessed

on 5thAugust, 2016 at 14.27

[8] Rwegasira, A., Land as a Human Right. A History of land law and practice in Tanzania,
2012 at pp.47

[9] Ibid

[10] legal-dictionary.thefreedictionary.com/Freehold Estates, accessed on 04th,August, 2016 at

14.11

[11]http://legal-dictionary.thefreedictionary.com/Freehold+Estates, accessed on 04th,August,

2016 at 14.11

[12] Ibid

[13]https://en.wikipedia.org/wiki/Fee_simple, accessed on 5th August, 2016 at 10.43

[14] Ibid

[15] http://legal-dictionary.thefreedictionary.com/fee+tail, accessed on 5th,August, 2016 at 13.53

[16] http://www.lexisnexis.com/documents/pdf/20150722022528_large.pdf, accessed on

5th,August, 2016 at 13.53

[17] Karp, J etal.,Real Estate law, Dearborn Real Estate Education, fifth Edition, 2003, pp.127

[18] Ibid
[19] http://2012books.lardbucket.org/books/legal-aspects-of-property-estate-planning-and-
insurance/s16-01-types-and-creation-of-leasehol.html, accessed on 09th August, 2016 at 10.05

[20]http://2012books.lardbucket.org/books/legal-aspects-of-property-estate-planning-and-
insurance/s16-01-types-and-creation-of-leasehol.html, accessed on 09th August, 2016 at 10.05

[21] Ibid

[22] http://www.finweb.com/real-estate/4-types-of-leasehold-estates.html#axzz4GohqTVgO,
accessed on 09th August, 2016 at 10.15

Last modified: Thursday, December 15, 2016, 3:19 PM

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LECTURE FOUR
1.0 LAND ADMINISTRATION IN TANZANIA

1.1 What is land Administration

The term “land administration” is used to refer the processes of recording and disseminating
information about the ownership, value and use of land and its associated resources. Such
processes include the determination (sometimes known as the “adjudication”) of rights and other
attributes of the land, the survey and description of these, their detailed documentation and the
provision of relevant information in support of land markets.[1]

Land administration is the way in which the rules of land tenure are applied and made
operational. Land administration, whether formal or informal, comprises an extensive range of
systems and processes to administer. The processes of land administration include the transfer of
rights in land from one party to another through sale, lease, loan, gift and inheritance; the
regulating of land and property development; the use and conservation of the land; the gathering
of revenues from the land through sales, leasing, and taxation; and the resolving of conflicts
concerning the ownership and the use of land. Land administration functions may be divided into
four components: Juridical, regulatory, fiscal, and information management. These functions of
land administration may be organized in terms of agencies responsible for surveying and
mapping, land registration, and land valuation.[2]

Land administration can be seen as a set of functions which ensure the sustainable development
of land matters. The main functions of land administration system consist of land registration,
cadastre survey, land valuation and taxation, land use planning and land development.[3]

Land registration is a process of official recording of rights in land through deeds or title (on
properties). It means that there is an official record (the land register) of rights on land or of
deeds concerning changes in the legal situation of defined units of land. It gives an answer to the
question “who” and “how”. Or can be described as “the process of recording legally recognized
interests (ownership and/or use) in land.”Cadastre is a methodically arranged public inventory of
data concerning properties within a certain country or district, based on a survey of their
boundaries. Such properties are systematically identified by means of some separate designation.
The outlines or boundaries of the property and the parcel identifier are normally shown on large
scale maps which, together with registers, may show for each separate property the nature, size,
value and legal rights associated with the parcel. It gives an answer to the questions “where” and
“how much”. Alternatively cadastre can be described as “an official record of information about
land parcels, including details of their bounds, tenure, use, and value.[4]

1.2 The benefits of a good land administration system

A good land administration system produces the following benefits,[5]

1. Guarantee of ownership and security of tenure

The compilation of land records and the judicial processes that must be gone through in order to
bring land information onto the registers should provide formal identification and, in some
systems, legal proof of ownership. The public registers should contain all essential juridical
information allowing anyone viewing the system to identify third party rights as well as the name
of the landowner.

1. Support for land and property taxation

Good land records will improve efficiency and effectiveness in collecting land and property
taxes by identifying landowners and providing better information on the performance of the land
market, for example by identifying the current prices being paid for property and the volume of
sales. Since the cadastre should provide full cover of the land, all properties can be included and
none should be omitted.

1. Provide security for credit

Certainty of ownership and knowledge of all the rights that exist in the land should provide
confidence for banks and financial organizations to provide funds so that landowners can invest
in their land. Mortgaging land is one way to acquire capital for investing in improvements.

1. Develop and monitor land markets

The introduction of a cheap and secure way of transferring land rights means that those who wish
to deal in land can do so with speed and certainty. Those who do not wish to sell their land can
be protected-no persons need be dispossessed of land unless they so wish since their rights
should be guaranteed. The registers should be public so that at any time a landowner can confirm
his or her rights. Those who wish to buy land can do so with confidence, knowing that the person
who is trying to sell the land is the legally guaranteed owner. Those whose properties are subject
to compulsory purchase-for instance where a new highway is to be built across their land-can be
treated with fairness since the registers should provide information on current land prices, thus
allowing better estimates of the market value of land to be made.

1. Protect State lands

In many countries the land that is held by the State for the benefit of the community is poorly
documented. This is not a problem in countries where the State owns all land, but where there is
private land ownership, that which remains in the possession of the State must be properly
managed. In all societies the State is a major landowner and its property must be protected for
example from encroachment by farmers onto land beside roads or from attempts by squatters to
settle on vacant land that is being held for future use. The State needs to manage its property
assets and to ensure their efficient use and upkeep every bit as much as does the private citizen.
A system of registration of title to land will facilitate this.

1. Reduce land disputes

In many countries disputes over land and its boundaries give rise to expensive litigation and all
too often lead to a breakdown in law and order. Much time is taken up by the courts in resolving
these matters, leading to delays in other parts of the judicial system. Land often cannot be put
onto the market or put to better use without resolution of the disputes, since no potential investor
is likely to wish to be committed to developing land where a lawsuit may be pending. The
process of registering rights should prevent such disputes arising in the future, since at the time
of first registration formal procedures should be followed that will resolve uncertainties.

1. Facilitate rural land reform

The distribution of land to the landless, and the consolidation and redistribution of land for more
efficient use all require detailed records of the present ownership and use of the land.
Compensation may need to be paid to those who lose out in such a process, or money may be
taken from those who make special gains. The design of new patterns of land ownership to
provide greater productivity from the land can be effective only if the existing pattern is well
documented.

1. Improve urban planning and infrastructure development

In many countries the control of development and the issuing of building permits are the
responsibility of the local municipal authority. A good land administration system should permit
the integration of records of land ownership, land value and land use with sociological, economic
and environmental data in support of physical planning. The availability of up-to-date large-scale
cadastral plans of urban areas provides the basic framework within which development schemes
can be planned and assessed and acceptable designs implemented.

1. Support environmental management

Multi-purpose cadastral records can be used to record conservation areas and give details of
archaeological sites and other areas of scientific or cultural interest that may need to be
protected. The cadastre can be used in the preparation of environmental impact assessments and
in monitoring the consequences of development and construction projects.

1. Produce statistical data

By monitoring the ownership, value and use of the land, data can be assembled for those
concerned on the one hand with resource allocation and on the other with measuring the
performance of development programmes. Both long-term strategic planning and short term
operational management require data in support of decision-making.

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LECTURE FIVE
LECTURE FIVE

1.0 Evolution of land administration

2.3.1 Land administration before colonialism

Historically land has been an arena of struggles between contenting forces. Prior to colonization
land was held under customary regime and it belonged to the whole society either a clan, family
or tribe. The emphasis was placed on the right to use and enjoy the fruits of the land; there was
no concept of individual ownership and commodisation of land. Such a situation continued
throughout the colonial era, though largely constrained by German and later, by British colonial
rules. Although the customary land tenure is still in place, since 1963 the chiefs, headmen and
elders were replaced by elected village councils.[1]

While that has been the trend in Tanzania Mainland, The land tenure history of Zanzibar was
somehow different given its historical background. Local custom regarded all land as being
communal, incapable of permanent alienation and merely conferring upon its occupants a limited
usufructuary right. According to their custom land could be held by a person during his lifetime
as long as he made use of it but it never became his private possession.[2]

2.3.2 Land administration during the Colonial Era

The legal and administrative machinery governing land tenure in Tanzania mainland has its
genesis in the colonial period.[3] The land regimes established by the German (1885-1916) and
British (1918-1961) colonial authorities assumed that the indigenous occupants had no
ownership rights over land.[4] The need to promote plantation agriculture led to the need for land
alienation of fertile areas or potential areas. Land Alienation was facilitated by legal and policy
instruments. During the German Era the crucial instruments that were used were the Imperial
Decree of 26th Nov.1895 and 1896 Circular/rules to implement the Decree.[5]Section 1 of the
Decree provided that

‘except where claims to ownership and to real rights in land can be proved by private persons or
certain other specified persons, all the land in German East Africa shall be deemed unowned and
be regarded as crown land and ownership to such land is vested in the Empire.’

After the First World War, Tanganyika became mandate Territory under the League of Nations.
The British had the responsibility to nurture it until it was ready for independence. In that case
British became the new colonial power in Tanganyika.[6] The British started its control by
proclaiming an Order in Council (Tanganyika Order in Council of 1920) which provided for
various issues including the law to be applied. The Order in council which was also considered
as the first constitution did touch though sparingly on public lands under section 8(1).[7] It also
passed the Land Tenure Ordinance (1923). Section 2 of the Ordinance declared all lands whether
occupied / unoccupied to be public lands. Proviso to the section stated that ‘... nothing shall
affect the validity of the title or interest to land which had been lawfully acquired before the
commencement of the Ordinance.’[8]

Section 3 vested all public lands and interests over them under the control and subject to the
disposition of the Governor for the use and common benefit direct/indirect of the natives.[9] The
governor thus was given the power of making grants of land on rights of occupancy for the
periods up to 99 years. The preamble of the ordinance had as its aim, to assure, protect and
preserve the existing customary right of Africans over their land, but this declaration was never
given that protection and assurance in the substantive provisions of the ordinance.

This anomaly was bitterly attacked by Special Mandates Commission of the League of Nations,
owing to which in 1928 the ordinance was amended and thus purportedly gave native a title as
good as a written one or rights of occupancy under the ordinance.[10] However, notwithstanding
that amendment or rather reassurance, the practice did show that whenever the interests of
granted land rights holders conflicted with customary rights holders, customary rights of
occupancy would give way. Even in the case law a customary land holder was declared to have
no title other than occupational or “usufructuary” rights.[11]

2.3.2.1 Techniques adopted by the colonial state to infringe customary land rights

The official line under the British administration was that upon the creation of or extension of a
city, municipality or township, urban land ceased to be subject to customary tenure.[12]
Accordingly, the colonial state adopted five techniques to exclude customary tenure, namely,
zoning, declaration of planning areas and adoption of planning schemes under the Town and
Country Planning Ordinance, Cap. 378, compulsory acquisition of land within a planning area
and issue of a certificate of occupancy under section 9 of the Land Ordinance, Cap. 113.[13]

1. 1. Zoning

The German administration divided Dar es Salaam into zones in 1891. This policy was adopted
by the British administration in Tanganyika and concretized in law. Under Rule 84 of the
Township Rules 1923 (made under the Township Ordinance, 1920 No. 10 of 1920, Cap. 29
Laws of Tanganyika, 1928) the Governor could prescribe areas in townships for the following
purposes: -

(a) areas in which residential buildings of European type only may be erected;
(b) areas in which residential and trading buildings may be erected:
(c) areas for native quarters only.

Acting under the above provision, the Governor issued Government Notice No. 160 of 1924
dated 11th September 192417 dividing Dar es Salaam into three zones: It stated,
The following areas are prescribed for the purposes specified: -

Firstly, in the area specified in the First Schedule hereto, residential buildings of European type
only may be erected. Such area shall be called Zone I.

Secondly, in the area specified in the Second Schedule hereto, residential and trading buildings
only may be erected. Such area shall be called Zone II.

Thirdly, in the area specified in the Third Schedule hereto, native quarters may be erected. Such
area shall be known as Zone III.

No definitions of “residential buildings of European type” or “native quarters” were provided.

However the Township Rules made elaborate provisions on building structures, such as nature of
foundations, floors, thickness of walls18 etc. Furthermore Rule 86 defined “Native Hut” as
meaning “any native dwelling constructed of boritis, fitos, udongo, makuti, corrugated iron, bati,
or other material customarily employed in native building.”

In 1934 the Governor issued another notice titled “Building Areas in Dar es Salaam” G.N. 30 of
1934. It adopted the earlier zoning except for one modification, that is, Zone III became an area
“within which buildings of any type may, subject to the approval of the Township Authority, be
erected.” In 1947 the Township Ordinance was reprinted as Cap. 101 and the Township Rules
were also reprinted. The enabling provision became Rule 78 instead of Rule 84 and the 1934
notice was reprinted. In the 1964 Revised Laws of Tanzania the Township Rules were reprinted
and the Dar es Salaam Zones reproduced. Oysterbay Residential Area was placed in the Fourth
Schedule and prescribed as an area in which residential buildings of European type only may be
erected.

In spite of intense legislative activity in this area, the Township Rules and the Dar es Salaam
zones drawn thereunder still subsist to-date.

The immediate consequence of zoning was that it legalized racial segregation, that is, Zone I for
Europeans, Zone II for Asian's and Zone III for natives (Africans). Any native found residing in
Zone I or Zone II was required to move to Zone III For instance in 1931 the District Officer, Dar
es Salaam ordered natives (one Mohamed bin Tambaza and others) with houses and shambas to
vacate Upanga, situated in Zone I. The native elders protested vehemently in a petition to the
Chief Secretary dated 16th May 1931.2() At this date another area of Zone I, Gerezani, had been
“cleared” of native huts. In a despatch to the Chief Secretary, dated 15th June 1931, the
Provincial Commissioner, Eastern Province, noted that the landowners and their families did not
have the means to build new houses elsewhere. Further, he wondered whether their removal was
legal “without action under the Land Acquisition Ordinance.”21 The colonial state was not
interested in legal niceties. All the natives except Mohamed bin Tambaza were removed to make
room for “residential buildings of European type.”

The significance of zoning coupled with the repatriation of natives from Zones I and II in this
context is that natives were forced to abandon their land. In this way customary tenure ceased to
operate and the land became available for grants of rights of occupancy under the Land
Ordinance It is doubtful whether the new occupiers, that is, grantees or holders or rights of
occupancy paid compensation to the previous native occupiers.

At independence the class in control of state power, that is, the petty bourgeoisie, acted swiftly to
prevent zoning from becoming a political issue. It actively encouraged its kith and kin to own
plots of land and to live in Zone I, particularly Upanga. The new residents were granted rights of
occupancy by the government.

It may be concluded that zoning as such did not affect customary tenure in urban areas. The
negative impact was provided by repatriation of natives whose legal basis was lacking. The
following two techniques had their legal basis in the Town and Country Planning Ordinance.
Cap. 378 as amended by the Town and Country Planning (Amendment) Ordinance 1961, No. 14
of 1961 and the Upanga Area (Planning and Development) Ordinance (Repeal) Act. 1966, No.
38 of 1966

1. Declaration of a Planning Area

The Town and Country Planning Ordinance. Cap. 378 makes elaborate provisions on urban
development. The Ordinance empowers the relevant Minister to declare an area to be a planning
area.22 Once an area is so declared “no person shall develop any land within a planning area
without planning consent.”23 Application would be sent to the relevant local authority24 (now
urban authority). The Town and Country Planning (Use Classes) Regulations, I96025 were
promulgated to facilitate the work of local authorities. In terms of these regulations, Use Group
A relates to Dwelling Houses; Use Group B - Residential buildings (other than dwelling houses);
Use Group C - Special Residential Buildings. Any building without planning consent is liable to
be pulled down.26

If it was believed that a declaration of an area as a planning area under Cap. 378 extinguished
customary rights of occupancy, that belief has been shaken by the Court of Appeal of Tanzania.
In Methuselah Paul Nyagwaswa v. Christopher Mbote Nyirabu27 the trial Judge had held that
once an area is declared a planning area customary law ceases to apply to land in such an area
and the right of a holder of a right of occupancy by virtue of native law and custom is
extinguished and the holder becomes a mere squatter.

He was overruled by the Court of Appeal. Mustafa, J.A. who read the majority judgment stated;

“In my view the law in Tanzania on Land and Land Tenure is still developing and certain areas
are unclear and would have to await the necessary legislation. At any rate I am not prepared, on
the rather inconclusive and tenuous arguments advanced in this appeal, to hold that the right of a
holder of a right of occupancy by virtue of native law and custom is extinguished and he thereby
becomes “squatter” on an area being declared a planning area.”

It is submitted that the Court of Appeal ought to have held that the customary right of occupancy
is not extinguished on the declaration of an area as a planning area.28 Subject to what is said
below with regard to planning schemes, Cap. 378 is merely regulatory. The declaration of an
area as a planning area does not affect the customary title or the right of occupancy granted
under the Land Ordinance, It is submitted that the retention of customary tenure in a planning
area does not present any special problem as long as there is a general law on urban
development, that is, Cap. 378 Urban land under customary tenure can be developed in
conformity with urban plans.

I shall now turn to related provisions of Cap. 378 on preparation and adoption of planning
schemes.

Adoption of Planning Schemes

Two types of schemes, that is, a general planning scheme and a detailed scheme are envisaged by
the Town and Country Planning Ordinance, Cap. 378. Both take effect seven days after the date
of publication in the Gazette.29

Section 23 of Cap. 378 requires every city council, municipal council or town council to prepare
“a general planning scheme for the planning area for which it is responsible.” In terms of Section
28 the scheme may provide for the adjustment of the boundaries of plots or holdings in different
ownerships and the land affected by such adjustment is deemed to be re-distributed in
accordance with such adjusted boundaries.30 Subsections (4) and (3) of Section 28 state,

“28 - (4) As soon as practicable after the date of the coming into force of a scheme providing for
the re-distribution of land pursuant to this section the Minister shall, without charge, arrange for
the amended boundaries thereof to be surveyed and for the issue to the owners of the land so re-
distributed of an appropriate title thereto and for the registration of such titles under any law
relating to registration of land...

(3) The title of an owner of any land re-distributed to him pursuant to the provisions of this
section shall correspond to the title of that owner to the former plot or holding immediately prior
to the registration of his new title.”

Two comments may be made at this juncture. Firstly, what is envisaged is adjustment of
boundaries although the expression “land re-distribution” is used. The marginal note to section
28 confirms this. It is couched thus,

“Minor boundary adjustment to give effect to schemes.”

Secondly, it seems that customary tenure is extinguished on the issue of a new title, (that is, a
certificate of occupancy) to the person who was holding the same land under customary law.
This point will be taken up at an appropriate moment below. In the meantime I shall examine
provisions relating to detailed schemes.

Section 24 permits a city council, municipal council or town council to prepare a detailed scheme
for the development of any area within its planning area notwithstanding that a general planning
scheme has not been prepared. The detailed scheme may make provision for the re-distribution
of land in conformity with Section 27. The Section states,
“27 - (1) Where the Minister is satisfied that, by reason of the complexity of the boundaries of
land within an area scheduled or likely to be scheduled in a general planning scheme for detailed
planning, the preparation and execution of a detailed scheme for the orderly layout and
development of land is impractical unless provision is made for the re-distribution of land in that
area, he may, by notice in the Gazette, declare that the provisions of the Third Schedule shall
apply to such land and, thereupon, such detailed scheme may make provision for the re-
distribution of land in accordance with the provisions of the Third Schedule, and the provisions
of the Third Schedule shall apply to such land in the execution of such scheme..

(2) Any reference in this Ordinance to a detailed scheme to which the provisions of the Third.
Schedule are applied under Section 27 shall be construed as references to a detailed scheme in
which provision may be made for the re-distribution of land in accordance with the provisions of
the Third Schedule.”

In terms of the Third Schedule all the land in question is pooled and the boundaries of all plots
and holdings therein are expunged.31 Then an equitable re-distribution of plots or holdings to the
owners of plots or holdings pooled is undertaken.32 Thereafter the title of each owner of a plot or
holding re-distributed is registered.33

It is submitted that the process of pooling land and expunging boundaries of plots or holding
extinguishes customary rights in land and the title to land re-distributed owes its validity to a
grant of a right of occupancy under the Land Ordinance. It is inconceivable that the customary
right of occupancy can survive this legal coup d'etat.

It would be legitimate to conclude that execution of a detailed scheme which makes provision for
the re-distribution of land extinguishes prior rights in land whether based on customary law or on
a grant of a right of occupancy under Section 6 of the Land Ordinance, Cap. 113.

Issue of Certificate of Occupancy

It was Onyiuke, J. who stated (judicially) for the first time in 1971 that a certificate of occupancy
may be issued under the Land Ordinance to a holder of a customary right of occupancy. In a
celebrated case. Mohamed Nyakioze v. Sofia d/o Mussa,34 he had this to say,

“Section 9 of the said (Land) Ordinance empowers the President when granting the right of
occupancy or where any person is in occupation of land under a right of occupancy or is entitled
to a right of occupancy, to issue a certificate to be called a certificate of occupancy. Section 2 of
the Land Ordinance defines a right of occupancy as a title to the use and occupation of land and
includes a title of a Native or Native Community lawfully using or occupying land in accordance
with native law and custom. It appears therefore, that a certificate of occupancy can be issued to
a person whose title to the use and occupation of land is in accordance with Native Law and
Customs.”

With respect, section 9 of the Land Ordinance is capable of accommodating this result. Indeed
natives are known to have opted for certificates of occupancy under this provision. The
certificate may be for long-term or short-term right of occupancy or right of occupancy from
year to year. It is submitted that the issue of certificate in this way marks a complete break with
customary tenure. Thereafter the terms of occupation of the certificate holder will be regulated
by the conditions of the certificate and the provisions of the Land Ordinance, Cap. 113 together
with subsidiary legislation made thereunder.35 The general provision in the Judicature and
Application of Laws Ordinance, Cap. 453 that statutory law overrides customary law in case of
conflict will apply.36 The same result is achieved on the issue of a certificate of occupancy
following adjustment of boundaries on adoption of a general planning scheme.37

It should be added that application for issue of certificate of occupancy is at the instance and
option of the land holder. Therefore, it is not an efficient method of extinguishing customary
tenure.

Compulsory Acquisition of Land

It is now time to consider the last technique, that is, compulsory acquisition of land under the
Land Acquisition Act 1967. In this case land rights based on customary law are extinguished and
the land becomes available for allocation to another person.

Section 45 of Cap. 378 empowers the President (formerly the Governor) to acquire land within a
planning area in order to secure its use in accordance with the applicable scheme. Alternatively
the land may be acquired if it has not been developed in accordance with the scheme. Such
acquisition must be in conformity with any law relating to the compulsory acquisition of land,
that is, the Land Acquisition Act, 1967 No. 47 of 1967. When the land is so acquired, it may be
allocated by President to “a local authority, any public utility company or corporation or any
religious, educational, charitable, cultural or social institution or organization or to any person on
such terms and conditions as he shall consider necessary to secure its use in a manner provided
in the scheme applicable thereto within a reasonable period after the corning into effect of the
scheme.”38

Compensation is payable by the government to the previous landowners.39

It is submitted that compulsory land acquisition is an efficient method of extinguishing

customary rights of occupancy of natives with inadequate means in planning areas where a
general planning scheme or detailed scheme has been adopted. However, it cannot be invoked if
the native in question had adequate means to satisfy the requirements of the scheme.

In sum, it is submitted that the above techniques (except zoning and removal of natives from
Zones I and II) did not extinguish completely customary tenure in urban areas. Under each
technique it was possible for some plots or holdings to continue to be held under customary law.
Hence the argument that the state has not succeeded in freeing urban lands from customary
law.40 The succeeding section makes a quantum leap from tenure to land related matters, on
disputes or issues to which customary law has been confined by the state.

1.3.3 Land administration after Independence

The legal land regime established principally by the colonial administration was taken
unchanged by the independent Government.[14] Most of the laws that regulated land planning
and development during the British rule continued to show their effects to customary land
owners. The word governor was substituted with the word president wherever it appeared in the
Ordinance. It was possible for the president to acquire land although not with a similar motive as
it was for the governor. All lands in Tanzania continued to be public land. The President became
the custodian of all land on behalf of the citizens of Tanzania.[15]

The concept of land ownership which was disrupted during the colonial era continued to be a
mystery. Individuals were deemed to own improvements on the land or a term of years and not
the land itself. Although the Ordinance might have been retained for technical reasons but it
enabled the government to acquire land freely without bowing down to individuals. Under the
Land Acquisition Act 47/1967 the Government could easily acquire land.[16]For example,
Under the Town and Country Planning Act[17], built-up areas may be declared re-development
areas for the purposes of planning. In this situation, land is acquired under section 34 of the Land
Acquisition Act, 1967. The result is that customary land owners are dispossessed in favour of
wealthier outsiders.

To add salt to the wound, in February 1967 the Government proclaimed the Arusha Declaration
which spelt out the policy of socialism and self reliance. The Policy revolved around public
control of the economy, development through self reliance, social equality and rural
development.[18] An enabling Act of Parliament was passed in 1973.[19] This Act envisaged
two stages in its implementation:- (i) The President could declare any area of Tanganyika to be a
specified area for the purpose of the Act (ii) The Minister for Regional Administration could
make regulations regulating farming operations in such area or reserving the area or any part of it
for the establishment of an Ujamaa village or providing for the extinction, cancellation or
modification of the rights, titles and interests in or over parcels of land falling wholly or party
within the specified area.[20]

The powers which were bestowed on the Minister were momentous. He could make regulation
which could easily declare extinction titles, rights and interests in a specified area or cancel such
right as the case could be. Generally the enactment of this law was not without flaws as the
customary rights of the majority Tanzanians were not protected. The implementation of the
(Ujamaa) programme was also involuntary and undemocratic. People were forceful evicted and
relocated without their consent and without compensation. Sometimes land in occupation of
peasants or kulaks or settlers farmers was expropriated and handled to Ujamaa Villages hence
Operation Vijiji. It was one of the dark moments in the history of development of democracy in
the country.[21]
In January 1991 the Presidential Commission of Inquiry into Land Matters was established. It
worked for almost two years concluding its work in November 1992. The commission visited
several areas especially those heavily affected by resettlements and relocation. Peasants in those
area reported massive dislocation and expropriation of their land forcefully under the auspices of
party leaders, state instruments and even by courts orders. Despite recommendations by the
Commission the government in desperation sent to the parliament and enacted an ill-conceived
piece of legislation which aimed at extinguishing customary tenure without compensation.[22]

In 1992 the government enacted the Regulation of Land Tenure (Established Villages) Act
22/1992.The Act was enacted to bring to an end any claims relating to land acquired during
operation vijiji. The Act provided that all rights to use and occupy land under customary law
held by villagers before operation vijiji were extinguished.[23] It was only rights that were
acquired during or after operation vijiji in villages established as a result of operation vijiji and
customary rights in areas that were not affected by operation vijiji that were recognized under the
Act.[24] No compensation was to be paid as a result of operation vijiji.[25]

The law prohibited filing of cases and or execution of decree validly issued on grounds of
extinguishment of customary rights.[26] All suits in court had to be terminated and no order
issued by ordinary courts was valid.[27] Suits could only be brought in special tribunals
established. Any aggrieved person could appeal to the Appeals Tribunal and if he is not satisfied
he could appeal to the Minister whose decision was final and conclusive.[28]

The implication of the statutory systems was to remove land tenure from the domain of
customary law and assimilate it in the statutory system of right of occupancy. The land tenure
and use were to be administered from the top. Participation of peasants and pastoralists in the
use, planning, administration and management of land was virtually none existing.[29] This
situation invited several disputes and land conflicts. As a result of the persisting of the conflicts,
new presidential commission was established in 1994.[30]

The works of the commission led to the delivery of the national land policy in 1995 (the land
policy), which saves as a major guide to local authorities on land use. The policy however
declined to take on board the recommendations of the commission to a large extent despite its
usefulness and resourcefulness on land use.[31]
Although, the birth of the land policy was highly expected by many Tanzanians to address their
outcry and incorporate the recommendations of the commission, however, the document retained
in all existing problematic areas in land tenure.

Professor Shivji (the chairman of the commission) commented that”

“The policy document is fundamentally a restatement of the existing land tenure system with all
its problems, perspectives and approaches. It could even be described as a manifesto of the
Ministry of lands trying desperately to defend maladministration and abuse of power by
rhetorical and hortatory statement of principles while reinforcing existing institutional
hierarchies and management styles in its substantive provisions”[32]

The birth of the National land Policy, paved the way for enactment of two major pieces of
legislations to regulate land tenure which are the Land Act No.4 and Village Land Act No.5 of
1999 which came into force in may 2001.

The enactment of the Village Land Act[33] and Land Act[34] was thought to alleviate the
problem; however, the story has remained to be the old wine in the new bottle.

Although section 18(1) of the Village Land Act, 1999 declares that a customary right of
occupancy is in every respect of equal status and effect to a granted right of occupancy, however,
section 34(3) of the Act (supra) provides that:

“Where a right of occupancy includes land which is occupied by persons under customary law, it
shall be a condition of that right of occupancy that those customary rights shall be recognised
and those persons so occupying the land shall be moved or relocated only–

(a) so far as is necessary to enable the purpose for which the right of occupancy was granted to
be carried out; and

(b) In accordance with due process and principles of fair administration, being given–

(i) Not less than one hundred and eighty days' notice of any requirement to move; and

(ii) The opportunity to reap crops sown before any notice to move was given to those persons;
and
(iii) The right to continue to use water which those persons had a right to use before being given
notice to move; and

(iv) Prompt payment of full compensation for loss of any interests in land and any other losses
that are incurred due to any move or any other interference with their occupation or use of land.

When one reads the above provision will clearly realize that the equality and protection of
customary rights provided in the Village land Act of 1999 is mere cosmetic than reality. And that
weakness has been used as a weapon to displace people holding land under customary law when
the government is implementing its projects or declaring planning areas.

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 References

 James R. W. (1967), Some Problems on Leases and Licences, 1967 E.A. L. J. 246

 James, R. W. (1971), Land Tenure and Policy in Tanzania, East African Literature

Bureau, Nairobi, 1971.

 Fimbo, G. M. (1992) Eassays in Land Law, Tanzania, printed by the Dar es Salaam

University Press, 1992.

 Riddal, J. G. (1983), An Introduction to Land Law, Third Edition, Butterworths,

London, 1983.

 MEGARRY’s Manual of the law of Real Property, SixthEdition, Stevens & Sons,

London, 1982.

 Kjekshus, H. (1977), Ecology, Control and Economic Development in East African

 History, The Case of Tanganyika, 1850-1950, Heinemann, London 1977.

  Corry, H., (1955), Report on Nyarubanja System in Bukoba, 1955. Reining, Priscilla C.,

KNOWLEDGE AREA TWO

Introduction

The part offers an explanation about new land legislation

and their genesis. The Tanzanian Village Land Act, 1999
and land Act, 1999 will be analysed regarding their powers
on protecting customary land rights in the Country. It is
believed that the two Acts, seek to empower the customary
right of occupancy titles, in order to stimulate the
development of the very many small-holding farms
throughout the country, however, their provisions appear to
be more cosmetic than reality.
Issues regarding land ownership and modalities of acquiring
land titles will be covered and analysed. Moreover, this part
will digest issues concerning land management, land dispute
and settlement mechanism.

Objectives

At the end of this course students will be able to

1. Evaluate the land Act, 1999 and Village land Act, 1999

2. Critically analyses different modes of acquiring land titles in Tanzania

3. Discuss varieties of land disputes and ways of solving such disputes in various land
matters.
 4. Discuss varieties of issues concerning land management

5. Conduct land law related research and use the results of that research

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 LECTURE SIX

LECTURE SIX
THE NEW LAND LEGISLATION

Introduction

The year 1999 marked a point of crucial importance in the making of Tanzanian legislation; the
Land Act and the Village Land Act were passed in the parliament. The previous strong reliance
on the British influenced Land Ordinance from 1923 was finally done away with. The Land Act
and the Village Land Act were based on the National Land Policy from 1995. They were passed
in 1999 and entered into force in May 2001. The Village Land Act only regulates village land
while the Land Act also regulates land outside the villages. Additional guidance to the Land Act
and the Village Land Act can be found in the Land Regulations and the Village Land
Regulations. The Land Regulations have to be read together with the Land Act since each
regulation is linked to one or more sections in the Land Act. Some sections of the Land Act were
amended with the passing of the Land Amendment Act in 2004.

These two Acts provide the overall framework for the exercise and administration of land rights.
In some areas, they represent a substantial reform of the prior tenure framework that had been in
existence since the Land Ordinance of 1923. For example, by these laws, all Tanzanians above
18 years of age have rights to acquire and own land; all existing property rights are recognized
and protected, including customary titles; and land should be used productively and such uses
should comply with the principles of sustainable development.[1]

On other matters, however, the land laws retain the basic features and characteristics of the old
system. Consistent with the old system, the Land Act places ultimate land ownership “radical
title in the president as a trustee for all Tanzanians, making land tenure a matter of usufruct rights
as defined by various leaseholds. It retains rights of occupancy, the imposition of development
conditions, land rent, and detailed bureaucratic control of all aspects of land use and ownership.
Under the Land Act, only the Ministry of Lands, through the Commissioner of Lands, has the
authority to issue grants of occupancy. It also restricts non nationals from acquiring land, except
acquisitions connected to investments that have approval from the Tanzania Investment
Corporation under the Tanzania Investment Act of 1997.[2]

The structure of the land Acts

Originally, the two land laws were drafted as one whole land legislation, but got split up because
of its bulkiness. The Land Act should be seen as the chief legislation among the two, covering
fundamental principles, such as classifications of land and definition of certain terms used in the
acts. Furthermore, issues of mortgage as well as ownership between husband and wife are
described only in the Land Act, although it is relevant for the Village Land Act as well. Other
than these mutual issues, the Land Act covers land rights in general land, i.e. outside villages or
reserved areas. This includes all urban areas. The Village Land Act, on the other hand, deals
strictly with land within village areas. This includes the locally rooted systems for management
and administration of village land, as well as land dispute settlement on village level.[3]

In addition to the acts, a few other laws touch the issue of village land: the Land Acquisition Act
1967, regulates in which way the state are allowed to acquire private land, including land held by
villagers; the Courts (Land Dispute Settlements) Act 2002 gives guidance on land dispute
resolution; and the Forest Act 2002 enables villagers to declare their own village forest reserves
on land within the village area. On top of these, the Local Government (District Authorities) Act
1982 is crucial, while it empowers village governments to design approved bye-laws in
accordance with their position as land managers.[4]

Land categories

The two land laws establish three basic categories of land: General, Reserved and Village Land.
Additional, hazardous land is described (LA 1999: s.7), (VLA 1999: s.6) as portions of land
within the three categories, being protected mainly for environmental reasons, or to protect
people from danger. The law exemplifies hazardous land by mentioning mangrove swamps and
coral reefs, wetlands and offshore islands, as well as land on steep slopes or river banks, which
are likely to be exposed to erosion if not protected.

General Land
By definition, general land is described as consisting of all land which is neither village land nor
reserved land. (LA 1999: s.2) All urban areas fall under this section, except areas that are
covered by laws constituting reserved land or that are considered hazard land. General land is
governed by the Land Act and, hence, under the control and jurisdiction of the commissioner for
lands. This ministerial key person has delegated much of the powers to the district councils and
district land officers in the districts. The definition of general land in the Land Act is
supplemented by the somewhat obscure statement, “General land… includes unoccupied village
land.” The passage is debatable in itself, as is also the fact that it is left out in the corresponding
definition in the Village Land Act.

General Land is defined differently under the two land laws. Under the Village Land Act,
General Land is a “residual category”; it is any land which is not otherwise defined as Village
Land or Reserved Land. In the Land Act, however, General Land is defined as, “all public land
which is not reserved land or village land and includes unoccupied or unused village land.” The
Act does not define “unoccupied or unused village land,” but all General Land is under the
authority of the Commissioner of Lands in the Ministry of Lands, Housing and Human
Settlements Development.[5]

Reserved Land

Reserved land is declared as land being reserved and governed for purposes subject to nine listed
laws. (LA 1999: s.6) Here, environmental protection areas, such as national parks, forest reserves
and wildlife reserves, including marine parks are gathered, but also areas intended and set aside
for spatial planning and future infrastructure development. Reserved Land denotes all land set
aside for special purposes, including forest reserves, game parks, game reserves, land reserved
for public utilities and highways, hazardous land and land designated under the Urban Planning
Act and Land Use Planning Act No. 7 of 2007. Reserved Land constitutes 28% of all lands in
Tanzania.[6]

Village Land

Village land is declared as being the land falling under the jurisdiction and management of a
registered village. As Tanzania consists of a vast countryside with only a few urban areas, most
land in the country is village land. In order to fulfill the provisions of the Acts, the village first
has to acquire a certificate of village land. The certification procedure includes compulsory
agreement upon the perimeter borders among neighbouring villages. When un ambiguity is
reached and the border is properly demarcated, a formal certificate of village land is issued in the
name of the president, and registered in the National Register of Village Land. Each village is
required to define three land-use categories within its own borders: 1) Communal village land, 2)
individual and family land, 3) reserved land.[7]
(VLA 1999: s.12) Reserved land in this context is to be understood as land set aside for future
individual or communal use, and needs to be distinguished from the national land category,
”reserved land”, mentioned above.

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 LECTURE SEVEN

LECTURE SEVEN
LAND OWNERSHIP

What is ownership?

Ownership, according to the black‟s law dictionary, is „the collection of rights allowing one to
use and enjoy property, including the right to convey it to others‟. It further continues to point
out that „ownership implies the right to possess a thing regardless of any actual or constructive
control‟. In summation of this definition, it is noted that „ownership rights are general,
permanent and inheritable‟.[1] Ownership is analysed as an absolute jural relationship between a
person and a thing. Interference with ownership gives the owner a remedy in damages known as
vindicatio or simply damages in trespass.[2]

Rei vindicatio is a legal action by which the plaintiff demands that the defendant return a thing
that belongs to the plaintiff. It may only be used when plaintiff owns the thing, and the defendant
is somehow impeding the plaintiff's possession of the thing. The term originated in ancient
Rome.

The concept of ownership is made up from three elements which are;

a) The right to manage things;

b) The right to enjoy or consume them; and,

c) The right to dispose of them during life or upon death

Before Tanzania was subjected to colonialism, landholding was based on customary laws of the
different tribes. Thereby, title to the land was based on traditions and customs of the respective
tribes. Ownership of land was predominantly communal, owned by a tribe, clan or family.
Chiefs, headmen and elders had the powers of land administration in trust for the community.
These powers continued through the colonial era though they were limited by the newly
introduced German and later British land tenure systems under which all lands were declared to
be subject to the crown and public lands respectively.[3]

The customary land tenure is still in place but since 1963 the chiefs, headmen and elders have
been replaced by elected village councils.”

Upon attainment of Tanzania’s mainland political independence in 1961, the government

realized that there was a need to develop a coherent and comprehensive land policy that would
define the land tenure and enable proper management as well as allocation of land in both urban
and rural areas.[4]

One of the main profits of the new legislation is the attempt to legally secure customary land
rights. Having previously been vaguely defined as deemed rights of occupancy, according to the
1928 amendment of the Land Ordinance, customary land rights are now given equal status to
granted rights of occupancy. For the first time, the Village Land Act provides for the possibility
to acquire written and registered documentation of customary land rights. A title in village land
is called a Customary Right of Occupancy, whereas it in general land is called a Granted Right of
Occupancy. Within reserved land, both customary rights and granted rights can be issued,
depending on the character and purpose of the reservation.[5]

Rights of occupancy within Tanzania are primarily issued to Tanzanian citizens or groups of
citizens. Organisations, associations or companies interested in acquiring land are required to
show that the majority of the shareholders are Tanzanian citizens. The only legal exception from
the prohibition of allocating land to foreign companies or associations is for purposes of
investment in accordance with the Tanzanian Investment Act, Cap 38 R.E.2002. (LA 1999: s.19)
Allocation of village land is primarily given to residents in the village. Also non-resident persons
and non-village organisations may apply for a land right, but will then be submitted to certain
conditions.[6]

Systems of Ownership and Registration

Over history, many forms of land ownership (i.e. ways of owning land) have been established.

1. Possessory Title (Adverse Possession)

“Possession is prima facie evidence of ownership. “Possession is ninetenths of the law” means
that possession is good against the entire world except the true owner”

2. Co-ownership

Where two or more persons own the same property at the same time they are said to be co-
owners…..the different forms of ownership are said to be joint tenancy and tenancy in common”

3. Torrens Title

The Torrens system of land title was devised by Sir Robert Torrens in South Australia in 1858,
and was actually based on the shipping register of Lloyd’s of London. Its key feature is that it
captures all interests in a property, including transfers, mortgages, leases, easements, covenants,
resumptions and other rights in a single Certificate of Title which, once registered with the State
by a Registrar General or Recorder of Titles, is guaranteed correct by the State. In other words,
the register is conclusive evidence of ownership. This is known as the principle of
“Indefeasibility of Title”. Thus, there is no need to search behind or beyond the Certificate of
Title to ensure proven ownership of the land.

4. State as the owner

Ownership can be vested on the state. This is possible in several ways which include; land which
has been defined by an Act of Parliament, land reversed or surrendered to the state, land which
the person claiming to be the owner cannot establish the ownership through a legal process, land
without an heir19, land with minerals and mineral oil, forests, game parks and reserves, water
catchments, national parks, government animal sanctuary et cetera, all roads and thoroughfares
provided for by an Act of Parliament, all rivers and lakes defined by an Act of Parliament,
territorial sea, exclusive economic zone and sea bed, continental shelf etc.[7]

5. Proprietorship
Sometimes refer to the status proprietor of a lease, of mortgage and of an easement. Similarly,
one who has legal title to something is an owner. The relation of an owner to the thing possessed,
possession with the right to transfer possession to others.

Land titles according to the Land Act

Granted Right of Occupancy (LA 1999: part V, VI)

In areas outside of village land, granted rights of occupancy can be held by a single person, or a
group of people, a company or an association. Granted rights of occupancy are mainly issued
within urban areas, but can also be issued for general land in rural contexts, or within areas of
reserved land. A significant difference between customary titles and granted titles is that the
latter is always limited in time, having a maximum admittance of 99 years. According to the
former directives, residential developments were allowed terms of 33 years, whereas commercial
property and farms were allowed 66 years, and finally, 99 years were intended mainly for
agricultural purposes.[8]

Land titles according to the Village Land Act

Customary Right of Occupancy (VLA, s.18f, s.23)

Customary rights of occupancy arise when villagers are allotted, or in other ways get hold of
land in accordance with the customary law applicable in the area. Full customary rights exist
equally, regardless whether written certificates are being issued, or not. In order to formally
register someone’s interest in land, the land has to be adjudicated. This means to thoroughly
investigate and confirm the tenancy of the plot, as belonging to the claimant. The law does not
require the borders to be surveyed, measured or mapped; instead a written description, or a
simple sketch explaining the area with the help of natural existing items, is enough to provide
legal validity. Customary rights of occupancy are, contrary to granted rights of occupancy,
without limit in time. The legislation grants land security and legal recognition of tenancy to
every land-holder regardless of formal certification. It is, though, only through the holding of a
registered Certificate of Customary Right of Occupancy, that the landholder can make factual use
of all the extended potentials that the new legislation seeks to provide.[9]

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 LECTURE EIGHT

LECTURE EIGHT
LAND MANAGEMENT AND ADMINISTRATION

Land management is process of managing the use and development (in both urban and rural
settings) of land resources. Land resources are used for a variety of purposes which may include
organic agriculture, reforestation, water resource management and eco-tourism projects. Land
management comprises all the activities associated with the management of land as a resource
from both an environmental and an economic perspective towards sustainable development.[1]

Land administration is the processes of determining, recording and disseminating information

about the ownership, value and use of land when implementing land management policies.[2]

The Land Act 1999 and the Village Land Act 1999

These two acts are the main pieces of legislation for land administration in Tanzania. The Land
Act 1999 is “to provide for the basic law in relation to land other than the village land, the
management of land, settlement of disputes and related matters” (p.17). As to the Village Land
Act 1999, it is “An act to provide for the management and administration of land in villages, and
for related matters”.[3]

In both acts, land is defined thus:

Land includes the surface of the earth and the earth below the surface and all substances other
than minerals and petroleum forming part of or below the surface, things naturally growing on
the land, buildings and other structures permanently affixed to land.

The Village Land Act relies on the fundamental principles of the national land policy. The basic

principle in this policy can be found in Land Act 3(1)(a) and 3(1)(b) on village land, both of
which state that the aim is “to recognize that all Land in Tanzania is public Land vested in the
President as trustee on behalf of all citizens” (p.36 and p.22 of Village Land Act). In addition,
section (b) of the Land Act and section (c) of the Village Land Act ensure that existing rights are
addressed, while section (c) of the Land Act and (d) of the Village Land Act facilitate equitable
distribution of land to and access to land for all citizens. Both acts include as key issues of land
policy provisions regarding amount of land, land transactions and compensation.[4]

Customary land management in Tanzania

Communities in Tanzania have their own internal land allocation practices according to custom.
Among non pastoralist and non-hunter-gatherer groups within Tanzania, land tenure is often
grounded in the principle of "first right"; members of the indigenous ethnic group who first
settled in a particular area have claim to the land there and hold the power to welcome or reject
newcomers and to decide which lands to allocate to them.[5] Newcomers, upon arriving in an
area, first approach local chiefs and headmen and request to be allocated an area to build a house,
plant crops, and graze their animals. The rights of the first settlers were "locally considered to be
as secure as private title deeds.[6]In the instance that a piece of family land was transferred to
someone outside the family, "the means of transfer gift, loan or sale was influenced by the nature
and strength of the social relationship between the two parties and determined the nature of the
rights transferred. Loans of land transferred use rights while outright gifts (including bequests)
and sales transferred absolute disposal rights.[7]

Women gained access to land through marriage, and, until recently, generally inherited their
deceased husbands' land to hold in trust for their sons. Among some groups, both male and
female children were entitled to inherit their family's land, and one's share of inheritance was
predicated not on gender but on one's share of the responsibility for caring for children, sick and
elderly members of the family.[8]

Apart from personal property allotments, there are communal lands open to all community
members to hunt, graze their animals, and gather natural resources. Under customary systems,
land is theoretically allocated free of charge, but in practice a "facilitation" fee is commonly
charged. Tanzanians also access land through "borrowed" or "rented" land rights, in which
various kinds of payments and services are exchanged for use of the land, and renters are
forbidden to make long-term investments (like tree planting) that might solidify their claim to the
property. These customs are still practiced in modified form today throughout Tanzania.[9]

Management and administration of village land

The Village Land Act, which became effective with the enactment of the Village Land
Regulations of 2001, provides the legal framework for the administration of Village Land.
Administration of general land is monitored by the commissioner for lands and his subordinates
at district level, whereas for village land, the village council has been authorised to manage and
administer land issues. (VLA 1999: s.8) Its role is to set up a system of land administration,
which shall be as efficient, transparent and participatory as possible.[10]

As it has been mentioned earlier, there are three different categories of land in Tanzania: general
land, village land and reserved land.[11] All land in Tanzania, including village land, is public
and vested in the President as a trustee for and on the behalf of all the citizens.[12] General land
is managed by the central government through the Commissioner for Lands and reserved land is
managed by different institutions depending on the purpose for which the land was reserved.
Reserved land can be a national park for instance. Village land is managed on village level by the
village council, but institutions on district and national level are also involved to some
extent.[13]

The Village Land is divided in to three categories of land.[14] The first category is communal
village land which is occupied and used or available for occupation and use on a community and
public basis. For example schools and public markets can be built on communal village land.
The communal village land shall not be made available for individual occupation and use. The
second category is land which is being used or occupied by an individual or family or group of
persons under customary law. The third category is land which may be made available for
communal or individual occupation and use in the future, often referred to as reserved village
land.[15] There are two major institutions in the villages: the Village Assembly and the Village
Council. The Village Assembly consists of all the residents in the villages that have reached the
age of eighteen years.[16] There must be a Village Assembly meeting at least once in every three
months.[17]

The Village Assembly is the supreme authority “on all matters of general policy making in
relation to the affairs of the village.[18]

By the Village Land Act (and the Local Government (District) Authorities Act of 1982), Village
Land is under the managerial authority of a Village Council elected by a Village Assembly. A
Village Council is the corporate entity of a registered village; the Village Assembly includes all
residents of a village aged 18 years and above. The Village Council is accountable to the Village
Assembly for land management decisions. By the Village Land Act, village government has the
responsibility and authority to manage land, including issuing certificates of Customary Right of
Occupancy within their area, and establishing and administering local registers of communal
land rights. They must apply local customary law, provided it does not conflict with the
prohibition of gender discrimination.[19]
The Village Council shall manage the land as a trustee on behalf of the villagers and other
persons resident in the village.[20] The Village Council has the executive power in all the affairs
and business in the village and shall act in the manner which is necessary for the economic and
social development of the village. The secretary of the Village Council is the Village Executive
Officer,[21]who is employed by the District Council. He/she is responsible for keeping a register
of village land,[22]which does not include any decision-making concerning village land.[23]

The land use plan in a village is an important land management tool for the Village Council. The
Village Council is the village land use planning authority in each village and the village land use
plan shall be approved by the Village Assembly.[24] The village land use plans shall, among
other things, secure the orderly and environmental sustainable development in the village, ensure
productive use of village land, preserve village land resources and be used to review all
applications for land in the village to determine its conformity with the approved plan.[25] A
land use plan shall, among other things, consist of a report of the physical characteristics and
resources of the land, a description and analysis of the current use of the land and the community
needs in that area.[26]

The Village Council has the general power to make decisions concerning village land but the
Village Land Act also gives the villagers and the Village Assembly some powers in these
matters. The Village Council has to report to the Village Assembly at every ordinary village
meeting and take the views of the Village Assembly into account when managing and
administrating village land.[27] The Village Assembly or not less than one hundred villagers can
make a complaint to the District Council concerning the land management of the Village
Council.[28] Any villager can also sue the Village Council in respect to its management of
village land.

The District Council is the major institution on district level. The Council is an elected body that
consists of members elected from each ward in the district and Members of the Parliament who
represent the district or who have been nominated by the district.[29] The function of the District
Council regarding village land matters is to give advice and guidance to the Village Council but
it does not have the authority to make decisions concerning village land.

Section 9 (1) in the Village Land Act states as follows;

The advice or guidance can be either on request from the Village Council or of its own motion.

The section further states that;

 The Village Council shall have regard to the given advice or guidance. This statement makes it
clear that the Village Council is not bound by the advice and guidance. It can however be
questioned if the village in practice is independent enough to neglect the advice from the district.

The district council is, on behalf of the commissioner for lands, first of all managing general land
in the district. In respect of village land, the role of the district authorities is merely monitory,
assisting and guiding the villages with expert know-how and advisory functions. The principle of
local autonomy allows the village councils to refuse the advise given by the district level.[30]

The Commissioner for Lands is also involved in village land matters on national level. The
Commissioner is a person who is appointed by the President.[31] The Commissioner for Lands
has several functions according to the Village Land Act. For example it is stated in the Village
Land Act section 8 (7) that the Commissioner for Lands may advise the Village Council on the
management of village land. One can therefore claim that the Commissioner supervises the
management of village land. Another example is found in Village Land Act section 8 (10) that
stipulates that the Commissioner can take action when a Village Council “has taken or omitted to
take any action on village land which is contrary to law”.

Allocation of Village Land to Foreign Investors

A foreign investor cannot acquire Customary Rights of Occupancy since this right is only given
to citizens.[32] The Land Act is very clear that a non-Tanzanian is not allowed to own land, save
for investment purposes under the Tanzania Investment Act. This includes corporate bodies
which are registered in Tanzania and have a majority shareholding by foreigners, which are
considered as foreign entities.[33]

The Tanzania Investment Act establishes the Tanzania Investment Centre (TIC), an entity over
which the land designated for investment is registered under its name. It has mandate to issue
derivative rights to investors who meet the requirements provided under the law. Under the TIC,
a foreigner can be allocated land designated for investment purposes and which is already listed,
or can look for desirable land owned by a Tanzanian national, and after agreeing on the
acquisition of such land with the owner, the owner will submit the existing title deed to the
Ministry of Lands whereby it will be re-issued as a land designated for investment purposes
under the name of TIC and thereafter derivative rights issued to the investor (foreign entity).[34]

Foreigners have a wide range of options when choosing land, depending on their requirements,
and are not limited to only acquiring land listed under TIC. However, when choosing land so
listed, should the foreigner/investor fail to meet the conditions of investment agreed upon on
granting of the said derivative right, TIC can re-acquire the said land and the foreigner is entitled
to compensation on the developments made on such land.[35]

Although this seems to be one of the best ways for investors to enjoy the use of land in Tanzania,
it comes with certain challenges to the investors; for example most of the banks in Tanzania are
not comfortable with taking derivative right titles as a security, mainly because their enforcement
is associated with a number of challenges, the main one being the TIC right to re-acquire the
property. However, there is also the fact that such land is already registered under TIC as land
designated for investment purposes and therefore when a bank decides to sell it in order to
recover they have a limited range of buyers.[36]

Another challenge associated with derivate rights is the timing of issuance of the title, especially
when an investor purchases a property from a Tanzania individual or registered entity. Relevant
approvals at the Municipal Ministry of Lands and TIC to the point of issuance of the title takes
approximately a year or more, which is after the investor has made all necessary payments
associated with acquisition of the said land. Whilst for land already registered under TIC, it can
take just two to three months.

Village land Act challenges

On many customary land issues, the Village Land Act is a significant departure from the Land
Ordinance of 1923. Many villagers and communities, however, still do not have security in their
customary land. Though passed in 1999 and in force since 2001, the Act is to a large extent not
properly or effectively implemented. The Act is complex, detailed and held in a technical
language. There is a general lack of knowledge about the law and regulations among local
government officials and villagers. As a result, the Act has not substantively changed the way
that most customary land in Tanzania is administered or governed.[37]

The Village Land Act provides that a “customary right of occupancy is in every respect of equal
status and effect to a granted right of occupancy.”[38] The “dualistic” statutory-customary
character of land rights that has prevailed since the colonial era, however, remains. Government
officials do not recognize customary land rights as equal to statutory rights, and they do not
respect the legal authorities of village government over Village Land. Other laws, such as the
Forest Act of 2002 and the Wildlife Conservation Act of 2009, contain provisions that encroach
on the powers of village governments. As a result, large swaths of Village Land have been
alienated and put to various uses by the government without the consent of village
authorities.[39]
The government can legally acquire Village Land in various ways, including willing seller
willing buyer purchases and by compulsory land acquisition. Under the Village Land Act, the
government also has the authority to transfer Village Land to General Land or Reserved Land.
For such transfers, the Minister of Lands, Housing and Human Settlements Development
publishes in the Gazette the location and extent of the land, and a brief statement on the reasons
for the transfer. A copy of the Gazette is sent to the Village Council, and the Village Council is
given a minimum of 90 days before the transfer can take place. If the targeted land is less than
250 ha, the Village Council must submit its recommendations to the Village Assembly for
approval or refusal. If the land is more than 250 ha, the Minister must consider and respond to all
recommendations from the Village Assembly. The relative ease by which the executive branch
of government can appropriate Village Land is perhaps the most criticized aspect of the Village
Land Act. The procedure for transferring Village Land to General Land does not provide a strong
guarantee that most villagers will be informed of the government’s intent, nor does it give the
village government the final say in whether the land may be transferred. As government efforts
to promote private investment accelerate, communities and local advocates are concerned that
the government will exercise this authority to acquire land for economic development
purposes.[40]

While villagers do not have the authority to veto the transfer of Village Land to General Land,
the Village Land Act provides that Village Land may not be transferred “until the type, amount,
method and timing of the payment of compensation has been agreed upon between…the village
council and the Commissioner.” If an agreement cannot be reached, the matter is referred to the
High Court for determination. Often the court provides a preliminary level of compensation and
allows the transfer to take place. Lacking financial and human resources, however, few village
governments are able to mount any legal challenge against the government. Tanzania’s Village
Land Act has the potential to provide villagers with security in their customary land, but the law
has yet to be effectively implemented. Moreover, the Act contains some worrying provisions,
including those that empower the government to transfer Village Land to General Land without
seeking and obtaining village government approval. Community activists and local advocates
have called for reforms.[41]

LECTURE NINE
MODE OF ACQUIRING LAND RIGHTS
In pre colonial times the indigenous peoples had abundant land, with farming and herding being
the predominant economic activities. Environmental factors such as rainfall, topography, soil and
the availability of water influenced the economy of the indigenous peoples.[1] Land holding was
based on traditional law and the culture of each tribe. To a larger extent land was communally
owned. Every member of the community had equal access to land. The concept of "ownership in
pre-colonial societies was embedded in status relationships. And African indigenous law in
property was more concerned with people's obligations towards one another in respect of
property than with the rights of people in property. The relationships between people were more
important than an individual's ability to assert his or her interest in property against the world.
Entitlements to property were more in the form of obligations resulting from family relationships
than a means to exclude people from the use of certain property. Land could be acquired through
allocation by clan head/chief, as a gift, clearing virgin forest, or purchase.[2]

1 Allocation

One of the ways of acquiring land has been through allocation by the relevant authority. This
authority could be the chief, villager headman or chairperson. In most cases such allocation was
accompanied by some restrictions which had to be observed by the occupier. In Mtongori
Nyamagani vs Richi[3] it was held that local elders had the power and right to allocate vacant or
abandoned land but not occupied land unless there was a rule limiting the area of land a person
could possess. Such elders had no power or right to allocate someone land to another on the
assumption that the former had too much land while the latter had none.[4]

2 Clearing a Virgin Forest

Clearing of vacant areas has also been deemed to be the best way of asserting ownership in land.
The one who was first to clear and settle on the land was given priority in determining instances
of ownership. Essentially the clearing of virgin forest was a crucial way of acquiring some form
of permanent rights over land. Even grants were dependent on the cultivation of permanent crops
or the construction of structures with a high degree of attachment to the soil before permanent
rights could evolve. The buying and selling of land is a recent development.[5]

3 Purchase

Under customary law land could also be acquired through purchase.[6] In any case where there
was an allegation that a claimant or his predecessor in title had acquired permanent rights in land
by purchase or gift there might be a preliminary issue as to whether customary land tenure of die
situs recognized the buying and selling or other disposition of land at the alleged date. This
necessity for historical data cannot be over-emphasized, for an action can always be dismissed
without much ado when one claims, as his root of title, a sale or gift at a time when those
institutions were unknown.[7]

4 Gift
Customary law recognizes granting of land as a gift subject to certain formalities as the case
might be. In the case of Herbert Rugizibwa s/o Ruhorana vs. Mushumbusi s/o Mavesi on Haya
law, the appellant claimed the return of a piece of land given by his father around 1906 to an
ancestor of the infant defendant. The Appellant alleged that the gift was not an outright gift but
only of limited interest in the land and therefore recoverable. The evidence, which was accepted
by the Court, of formalities necessary to pass absolute title by gift were set out in the judgment.

5. Adverse possession

Adverse possession is a method of acquiring title to real property by possession for a statutory
period under certain conditions, viz: proof of non-permissive use which is actual, open and
notorious, exclusive, adverse, and continuous for the statutory period.[8]

Uninterrupted and uncontested possession for a specified period, hostile to the rights and
interests of true owner, is considered to be one of the legally recognized modes of acquisition of
ownership. The prescription of periods of limitations for recovering possession or for negation of
the rights and interests of true owner is the core and essence of the law of adverse possession.
Right to access to Courts is barred by law on effluxion of prescribed time. The conditions
necessary for the acceptance of a claim based on adverse possession have been laid down
basically by way of Judge-made law.[9]

As observed by the Supreme Court of India in the case of Karnataka Board of Wakf Vs.GOI (
2004) 10 SCC 779, in the eye of law, an owner would be deemed to be in possession of a
property so long as there is no intrusion. Non-use of the property by the owner even for a long
time won’t affect his title. But the position will be altered when another person takes possession
of the property and asserts rights over it and the person having title omits or neglects to take legal
action against such person for years together. The process of acquisition of title by adverse
possession springs into action essentially by default or inaction of the owner.[10]

Four conditions must be satisfied in order for adverse possession to occur throughout the period
in question.[11]

1) The individual whose title is alleged to be extinguished must have had a right to possession
of the land

2) The individual whose title is alleged to be extinguished must not have been in possession
of the land

3) Another individual (a squatter) must have been in possession of the land

4) The possession of the squatter must have been adverse to that of the true owner. In other
words the squatter must have had what is known as an animus possidendi.
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LECTURE TEN
10.0 LAND AND CONFLICT

10.1 Introduction

From the ancient Greek myths we know that in the beginning people lived happily together in
simple harmony. This Golden Age of peaceful coexistence did not last, however. With the onset
of the current Iron Age people divided the land among them and rendered it into private
property, for which they have continued to fight one another to this day.[1]

The culture of conflict is universal and noticeable in every society, in so far as there are
conflicting interests and divergent ideas in relation to the same issues. Conflict, therefore, is
inevitable, wherever incompatible activities occur. Though conflict is a universal culture, each
society in its own distinctiveness constructs its own frame work of laid-down conventions and
rules by which conflicts are resolved.[2] Land conflicts occur in many forms. There are conflicts
between single parties (as for instance boundary conflicts between neighbours), inheritance
conflicts between siblings, the dispute between the community and institutions, community and
the government and disputes over the use of a given piece of land.[3]

In many countries, indigenous people have been dispossessed or live at risk of being
dispossessed due to either failure to recognise their rights to land or invalidation of those rights
by the state, or through expropriation or privatization of their lands by the state.[4]For instance,
land in Tanzania is currently in high demand because of various factors; investment factors,
urban development, there is also a demand of land between pastoralists and farmers. Large scale
of land is currently in demand by investors and the government through its centre is allocating to
investors, and this is sometimes creating chances for land grabbing.[5]

10.2 An overview of land conflict

There are four major milestones in the development of land tenure system in Tanzania. These are
the pre colonial phase, colonial phase, the three decades of independence and the social
economic liberalization phase. During each phase, land use was determined by the major forces
of time and reinforced by the relation of production. In pre-colonial phase for example, land use
and ownership was controlled by respective tribes and clans with varied ways of accessing using,
owning and controlling basing on their own customs and traditions and when disputes arose over
its usage, customary systems were applied in settling them.[6]

The principles of equality and justice were defined and applied within the limits of tribal/clan
jurisdiction, and, access to and ownership of land was attached to its use. During colonialism,
land was alienated from the people for allocation to the new masters (Germans first then British),
for production of raw materials. Granted right of occupancy was introduced and accorded a
relatively higher status to deemed rights of occupancy. This was reinforced by the British
colonial land ordinance of 1923. Local communities lost their rights to use their own land, forced
to become labours and eventually fought to reclaim their land rights and sovereignty.[7]

At independence, little changes were made on the land tenure system as a whole save for the
replacement of governor with president but the powers over land administration were retained.
Other development especially in the context of Arusha declaration had enormous bearing on both
land use plans and the rights to land of many Tanzanians. Private properties were nationalized
and the decision reinforced by enactment of the land acquisition act No. 47 of 1967 to give more
powers to the president to acquire land for National interests. So many conflicts arose during this
phase because the resettlement exercise took place without first revoking the right to land of the
resident communities. So the new owners and old ones found themselves in clashes that were
caused by the villagazation programme.[8]

Generally, the nature of land use conflicts revolved around the state and its agencies vis a vis
communities over the changing use of their land for the so called national interests. Huge tracks
of land were converted into ranches and or farms owned by state corporations like NARCO and
NAFCO sometimes forcibly acquired from communities with meager compensation or
sometimes without any compensation.[9]

From mid eighties, land use conflicts have assumed a different pattern by involving other actors
than the state and small groups. As the country opened up for liberalization, we have witnessed
an influx of investors who are also interested on land. Large tracks are now being leased or
privatized to local and foreign investors for commercial farming, ranching or mining activities.
Allocation of such land has brought about serious tensions between local communities and the
respective investors for either lack of adequate consultation or forceful eviction of communities
without compensation. Land conflicts emerging as a result of economic liberalization are closely
linked to what is now called „land grabbing‟ by persons in positions of the power or material
wealth and influence. Trends show that there is an increasing influx of investors into the rural
areas, which is also posing serious threats on food security for rural based small producers.[10]

Basing on this historical background, it is obvious that land use conflicts are going to persist as
they take different shape depending on forces of the time. There are high hopes on the new land
conflicts resolution mechanisms that begin from the village level to the court of appeal but the
weak reinforcement mechanisms turns down the hopes. The recent developments in the land
tenure system where the new laws have been introduced are equally not reliable as the
institutions established by these laws are yet to take shape in communities. It is thus imperative
to devise concerted efforts among actors in making sure that reliable mechanisms are put in place
to address the challenges of combating land use conflicts in Tanzania for the benefit of small
producers. Civil society, private sector and the government partnership is inevitable in this
initiative. At the centre stage, there should be a strong leadership of professional bodies to bring
in their professional.[11]

10.3 Types of land disputes

1. Pastoralists vis a vis farmers

The prominent land use conflict prevailing in Tanzania is between the herders and crop
producers. This is due to the multiple cases of such conflicts taking place in several parts of the
country. Among those areas are in Kilosa and Kilombero districts in Morogoro region; Kilindi
and Handeni districts in Tanga region; and mbarali district in mbeya region to mention the
few.[12]

These conflicts are instigated by the following causes;

a) Searching for pastures and water among the pastoralists for their cattle, the farmers are
complaining that the cattle are passing in their farms. Although, the pastoralists are arguing that
in many areas there no ways or paths for their cattle to pass during the search for pasture and
water. However, there are beliefs among the other users of land that pastoralists ways of keeping
livestock is old and does not deserve to survive up recently as result in lack of care for land
resulting in soil erosion and other abuses.

b) The nature of the land tenure system in Tanzania contributes to the marginalization of
groups like pastoralists who lose their rights over the land to other groups. The pastoralists have
not been considered very much in the land tenure system in the country due to the fact that in the
categorization of land, there is no land set aside for pastoral activities save for the provision that
villagers shall determine land uses in their own villages. Given the level of stigma and stereo
types given to pastoralisms, their activities are regarded as additional activities so not necessary
to be allocated with land. This was evident even during formation of villages in 1974 and
wildlife act of 1974 where National parks, Game Reserves and Game Controlled Areas were
given prominence to pastoralism. Even the various laws and policies are not giving much
attention to pastoralism as compared to other sectors like agricultural, tourism and mining.

c) Weak conflict management mechanisms contribute to the un-ending land conflict between
the farm herders and crop producers.

d) Lack of clear demarcation of land among land users simply due to the lack of proper land
use plan. Although the Land Act No. 4 and Village land Act No. 5, 1999 requires every village to
have in place the land use plan, many villages have not been able to implement this due to
various obstacles one being prevalence of the boundary conflicts between the villages. This
contributes to continued interference of one group land by the other without knowledge of either
side or sometimes deliberately by group which is knowledgeable.

2. Communities vis a vis investors (Commercial farmers and mining companies)

The so called free market economy in Tanzania led to the massive increase of the investors in the
country. With these “investors” coming into stream since 1980s what has been witnessed in the
country is proliferation of and other natural resources disputes. The main victims in this process
have been the pastoralists, farmers and the small miners whose used to get their daily bread and
other social services from the land owning. For instance in the biofuel production the foreign
companies are getting more support from the government institutions in acquiring in the village
without following the proper underlined producers. The concrete example is in Rufiji, Bagamoyo
and Kisarawe districts whereby a lot of outsized hectares of land have been taken for biofuel
production despite the fact that in the long run there will be huge environment destructions and
food crops production decline. Besides there is no proper and effective participation and
consultation of the villagers when they village land taken and given to the investors for biofuel or
for any other activity.

1. Lack of knowledge among the community members is also a big factor for conflicts
under this category.From the mid 1980s up to the early 2000s there was poor
understanding of various issues pertaining to the right of communities over the land.
2. The land tenure system in Tanzania remains to be the critical cause of the land conflict in
the country. The Village land Act no. 5, 1999 section 8 (1) authorized the Village Council
as the principal controller of the village land, that is any decision over the village land
should be first discussed in this organ and approved by the Village Assembly. But very
interesting there breaches of this Act by other organs at the top particularly the District
 Authorities. The villagers no longer posses power over their land through their own
elected leaders. The top leaders at the district are making decisions on their behalf and
they are not required to question the legitimacy of those decisions. In the case of mining
sector, the influx of the investors in the mining areas in the past two decades has
contributed to the massive land use conflicts. The basic causes of such conflicts are the
disasters caused by the outcomes of this investment.

1. 5. Community vis a vis the state in conservation lands and Development

projects

The conflicts between the community and the state are historical in case of Tanzania. This is due
to the fact that since the independence time there has been the use of force from the government
demanding the villagers and other land users to leave land they own for other uses mostly termed
as public demand such economic growth. The events of establishment and redistribution of land
to the public corporations such as National Agricultural and Food Corporation (NAFCO) AND
National Ranching Company (NARCO) as well as National parks, Game Reserved Areas went
together with violation of villagers rights on land which led to the occurrence of multiple
conflicts over land among the villagers and the reserved areas. The concrete example is in Rufiji
district whereby the villagers of Mloka village are in conflict with the management of Selous
Game Reserve for years now.

10.4 Causes of land conflicts

Land in Tanzania and many other parts of the world is a source to so many conflicts. Land
conflicts in many African countries are closely linked with the colonial legacy as many countries
could not change their systems after independence. We have seen the Tanzanian case where
immediate after independence the government adopted almost everything from the British
colonial government until mid 1990‟s when the new land regime was introduced through the
National Land Policy 1995, the Lands Act number 4 and 5 of 1999. Apart from the colonial
legacy, there are many other factors for land use conflicts:[13]

Lack of Public awareness and knowledge on land laws. Although land Act No. 4 and Village
land Act No. 5, 1999 have marked a decade since their enactment, still the two pieces are not yet
known to majority land users. This includes the land Disputes Settlements Act, 2002.

1. Lack of peoples‟ participation during policy and laws formation even when they are
invited their views are not given high priority. Views and demands of the citizens are not taken
and included in the laws which lead to the occurrence of the new land conflict source being the
laws.
 2. Incapacity of the decision making organs from the village level to the national
level. Many of the decision makers perform poorly due to either poor understanding of the rules
and regulations guiding their administration positions or due to personal benefit. For instance the
village council has entered into several contracts with investors without clear information of the
activities which will be done by these investors which in the long run cause conflict with the
majority villagers.

3. Violation of the land laws regulations by the land administrators particularly at the
level of district and national. The land administration in Tanzania faced with some land
administrators who are corrupt and unfaithful to their works. Due to this fact, many of the land
cases emerge from the contradictory decisions done by the land officers. The concrete example
being the presence of double allocation during land redistribution in Dar es Salaam city and its
peri-urban areas.

10.5 Consequences of land conflicts

Land ownership conflicts have negative effects on individual households as well as on the
nation’s economy. They increase costs, slow down investment, can result in the loss of property
for a conflict party and reduce tax income (land tax, trade/commercial tax) for the state or
municipality.[14]

Conflicts over the use of land generally have a negative impact on the poor or on the natural or
building environment. They either decrease quality of life for parts of society or, if they are
addressed and ameliorated, contribute to additional state expenditures and therefore have an
impact on the national wealth.[15]

Land conflicts also increase social and political instability. Where ever there occur a lot of
multiple sales, evictions, land grabbing etc., people lose confidence in the state and start
mistrusting each other. Social and political stability suffers even more when land conflicts are
accompanied by violence. Dealing with land conflicts therefore also means to re-establishing
trust and confidence in public as well as private institutions.[16]

References

James R. W. (1967), Some Problems on Leases and Licences, 1967 E.A. L. J. 246
James, R. W. (1971), Land Tenure and Policy in Tanzania, East African Literature Bureau,

Nairobi, 1971.

Fimbo, G. M. (1992) Eassays in Land Law, Tanzania, printed by the Dar es Salaam University

Press, 1992.

Riddal, J. G. (1983), An Introduction to Land Law, Third Edition, Butterworths, London, 1983.

MEGARRY’s Manual of the law of Real Property, SixthEdition, Stevens & Sons, London,

1982.

Kjekshus, H. (1977), Ecology, Control and Economic Development in East African

History, The Case of Tanganyika, 1850-1950, Heinemann, London 1977.

Corry, H., (1955), Report on Nyarubanja System in Bukoba, 1955. Reining, Priscilla C.,

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LECTURE ELEVEN
INTRODUCTION TO DISPUTE RESOLUTION

To the layperson, conflict and dispute may mean much the same thing since both involve a
disagreement over some issue. However, there are some conceptual differences between the two
terms.[1] Conflict exists where there is an incompatibility of interests. conflict as a serious
disagreement or argument; a prolonged armed struggle; an incompatibility between opinions,
principles, etc.Uncontained conflicts sometimes manifest themselves in verbal or behavioural
disagreements which could lead to violence and conflicts at the international level. Such conflicts
have the potential for violence and for that reason are usually condemned.[2] However, conflict
is an integral part of human behaviour, and there could be no movement or change without it.
Decision-making necessarily contains an element of conflict; exchanges of ideas involve
conflict; the democratic process is built on the basis of the normalcy of a conflict of ideas and
interests. Conflict is an eternal feature of human existence. An irreconcilable conflict becomes
potentially damaging when natural mechanisms for solving it such as negotiation or discussion
are inadequate to deal with it. In such a case other methods or processes may have to be resorted
to.[3]

A dispute may be defined as a class of conflict which manifests itself in distinct, justifiable
issues. It involves disagreement over issues capable of resolution by negotiation, mediation or
any other dispute resolution process involving a neutral third party.[4]

Dispute means a conflict or controversy; it entails a conflict or claims or rights, or demand on

one side, met by contrary claims or allegations on the other side. The dispute is usually the
subject of litigation; differences inherent in a dispute can usually be examined objectively, and a
third party can take a view on the issues to assess the correctness of one side or the other.[5]

Disputes between communities and investors touch on a wide range of issues, and it is
impossible for this brief to provide a comprehensive typology. However, many disputes are
rooted in the manner in which land was acquired, in controversies about payment of
compensation and in unfulfilled promises made by the investor. Investors may promise to
provide social infrastructure for education, health or water access. But these promises may not be
properly reflected in written, enforceable agreements. In many cases, investments raise high and
perhaps unrealistic expectations among local communities. Where investments fail and stop
operations, they leave behind a trail of disappointment and frustration among local communities
and also among labourers. For some types of disputes, the law indicates the relevant redress
mechanisms. For example, labour disputes can be taken to court using the industrial dispute
settlement machinery. Disputes concerning land acquisition and compensation can be settled
through the procedures provided under the Land (Courts Disputes Settlement) Act 2002, which
will be discussed afterward.[6]

Dispute Resolution generally refers to one of several different processes used to resolve
disputes between parties, including negotiation, mediation, arbitration, collaborative law, and
litigation. It refers to the methods of solving disputes employed by trained neutrals to help parties
communicate clearer, negotiate effectively, and develop solutions for conflicts. Neutrals do not
take sides or represent the parties, it is the counsels who represent parties and participate in
examining witnesses. It should be noted that neutrals come from different backgrounds like
human resources, law and social work [7] this includes litigation, arbitration mediation
conciliation and others.[8]

Dispute resolution is a term that refers to a number of processes that can be used to resolve a
conflict, dispute or claim. Dispute resolution may also be referred to as alternative dispute
resolution, appropriate dispute resolution, or ADR for short.[9]

Dispute resolution processes fall into two major types, Adjudicative processes, such as litigation
or arbitration, in which a judge, jury or arbitrator determines the outcome and consensual
processes, such as collaborative law, mediation, conciliation, or negotiation, in which the parties
attempt to reach agreement. Although it is not necessarily that all disputes end in resolution.[10]
Dispute resolution offers a private and voluntary option beyond Court.[11]

Nature of disputes

Disputes vary in nature and range. Even within a category, differences are readily apparent due
to differences in issues and factors that can influence those opposing parties. For this reason, it is
easy to see why no one dispute resolution process can be suitable for all types of disputes. Some
simple disputes may be resolved through negotiation, while some disputes require the assistance
of a neutral third party who can introduce carefully devised procedures for examining and
possibly, evaluating the issues. Yet some disputes require the intervention of an expert neutral
third party or the use of an adjudication process. Thus, processes will range from relatively
informal ones suitable for personal disputes, to very sophisticated and professionally designed
procedures which can be used for major, complex and often highly technical issues.[12]

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LECTURE TWELVE
DISPUTE SETTLEMENT SYSTEMS

Introduction
In many African countries, Tanzania in particular, land conflicts are resolved through various
ways each of them having its own mechanism of dealing with land conflicts. Formal, informal
and alternative justice systems exist and people seek for any of these systems to resolve their
land conflicts. Each system has its own way of managing conflicts. However, in conflict
management, the choice of the appropriate process depends on the particular circumstances and
the context of the conflict.[1]

These justice systems have their own strengths and weaknesses in resolving land conflicts.
Formal justice systems such as the Court of law are noted to be inefficient and unable to satisfy
the needs of the populace in urban as well as the peri-urban areas particularly in developing
countries.[2]

Informal systems such as the customary on the other hand also have their own flaws. An
alternative to these two systems is the modern Alternative Dispute Resolution (ADR) system
which remains as an alternative and not as a replacement to the formal courts or the customary
justice system.[3]

This part therefore will discuss various institutions for dispute settlement on the assumption that
in any society there is a definite relation between on one hand the social economic and political
development of the society, and on the other, the method adopted in that society to resolve
disputes. The Common law (adversarial) system and the Civil Law (inquisitorial) system share a
common tradition in that both were developed in the Western European cultures and are a
product of Western civilization. There is a difference in approaches to dispute settlement
methods and procedures in the two systems.[4]

Traditional dispute settlement

Before colonialism, most African societies, if not all, were living communally and were
organized along clan, village, tribal and ethnic lines. Being part of a community was important,
if not downright necessary due to the vicissitudes of life in primal or communal societies. Social
ties, values, norms and beliefs and the threat of excommunication from the society provided
elders with legitimacy and sanctions to ensure their decisions were complied with.[5]

Though conflict is a universal culture, each society in its own distinctiveness constructs its own
frame work of laid-down conventions and rules by which conflicts are resolved. The formulation
of such policies in advance is necessary to avoid taking an on-the-spot haphazard decision to
settle an outstanding dispute which may likely be misinterpreted by the disfavored party. But
once the policies are there before any dispute occurs; the chances of leveling accusation of
discrepancy and unfairness in judgment are reduced to minimum.[6] Before the ruining of
various cultures by alien cultures, the traditional methods of settling disputes varied from one
society to the other. These methods were essentially based on each society’s ways of life. For
example, prior to the advent of alien culture South- Eastern Nigeria (Igbos) had a well laid down
traditional process of conflict resolution? Not that the citizens were neither quarrelsome nor
litigious but to enhance the fraternal relations which existed among the people. There were no
established courts, trained lawyers, judges and police. There was also the absence of court
messengers and warrant chiefs which were the off-shoot of the British colonial Imperial
Administration.[7]

In traditional Rwanda, the basic and most important unit of socialization was the extended
family. Status within the society was divided along gender and age lines. The family unit was not
only a social unit but also a security system since almost everyone was dependent on lineage for
socialization. The initial conflict and problem resolvers were the headmen of the lineages or the
eldest male or patriarchs of families. They resolved conflicts by sitting on the grass together to
settle disputes through restoration of social harmony, seeking truth, punishing perpetrators and
compensating victims through gifts.[8]

Among the Tswana, customary dispute resolution was conducted parallel to the formal justice
system and was based on their norms and practices of the people. There were different actors
depending on the social organization of the Tswana community. At the lower family levels were
the batsadi ba lolwapa (family leaders), the batshereganyi (headmen of records), dikgosana
(headmen), moemela kgosi-kgolo (the chief’s representative) and finally the kgosi-kgolo
(paramount chief). Dispute resolution consists of elders working at a collegiate level (for
example the dikgosana and the batshereganyi) or a single elder resolving a dispute alone (for
example the batsadi ba lolwapa and the kgosi-kgolo).[9]

In Gorowa community in Tanzania, The traditional mechanism for resolving land conflicts varies
depending on the nature and the extent of the conflicts. For example in order to resolve a conflict
related to communal land, the elders meeting termed (‘kwatlmar barise’) is convened led by the
experts for procedure of conflicts resolution called ‘bariser kwatlema and the accused person is
called and asked about his decision and directed to withdrew his decision.[10]In case, he agreed
then the problem was solved. However, some greed people refused the advice given to them. In
such situation, another step was taken as a punishment, the wife of the concerned individual was
asked to go back to her parents, she will be asked to send children to her in laws since in Gorowa
tribe children belong to father’s clan. Subsequently, collective decision was taken against
individual by strictly prohibiting any member of the community to go to the house of such an
individual. This action was called ‘bayinisa’ in Gorowa’s venicular language.[11]

Upon such an action, a punished individual once wanted to resume the good relationship with the
members of the community, it was his/her solely duty to find out elders and to ask for the
meeting in which he was supposed to ask for the forgiveness for his wrong practice. Depending
on the extent of aggressiveness, relationship background to the members of the community, the
decision was made to such an individual. In some circumstances, an individual was freely
forgiven, or was asked to prepare the local alcohol called’ bura’ which was shared by all
members of the community who attended the meeting of resolving such conflict. In a
circumstance which was serious a wrong doer was asked to provide the bull (‘awu’) that was
killed and the meat was shared during the meeting as an indication that a person was
forgiven.[12]

These procedures are not far with those found between ethnic groups in Nigeria. For instance in
an interethnic war there were traditional symbols such as waving leaves of special trees
indicating that one or both sides had an intention of making peace. The parties could engage in
direct talks or could seek the assistance of a respected wise elder. Very often when they agreed to
end the conflict, a ceremony was organized which involved feasting with traditional brew and
slaughtering a cow or cows and/or goats.[13]

Methods and procedure of Customary Dispute Resolution

Traditional conflict management methods are therefore seen as those methods ‘practiced for an
extended period and have evolved within the society rather than being the product of external
importation.

1. Mediation and Conciliation

Mediators lead the parties in reconciling their differences.[14] External agents were also used in
managing conflicts. These were mainly elders from neighbouring villages or towns; and
supernatural forces such as deities/oracles from far and near which were noted for their
impartiality and effectiveness in delivering just judgments and instill punishment.[15]

2. Arbitration

Among the Igbo, arbitration was the commonest means of dispute resolution in which the parties
in disputes agree to submit their dispute to the Chiefs and elders of the community for the
purpose of adjudication and redress, and wherein the parties feel themselves bound by the
decision of the arbitrators.[16]

3. Oath-Taking:

Oath taking has been an acceptable practice and a common method of conflict resolution of
dispute in African societies. [17] Regardless of western influences, oath-taking has survived as a
legitimate judicial method which the Igbo people in Nigeria believe as one of the assured ways
of obtaining absolute justice.[18] In oath-taking among the Igbo, time is normally given within
which the offending party is expected to either be killed by the gods or be sick so as to confirm
that he is the offending party. Guilt or innocence is established depending on whether or not the
accused dies or falls sick within the time given. Generally, the oaths are worded in such a way
that the swearer invokes on himself a conditional curse. He tells the juju to punish him if he lies.
After then, all the disputing parties wait for a year. The Igbo believe that anyone who swears
falsely will be dead or struck with great misfortune within the time limit.[19]

In a land dispute, the person who swears to the oath enters and takes possession of the land. But
if a misfortune befalls him within one year, the property reverts to the other party. If however he
survives the prescribed time, the swearer retains the property as he is deemed to have told the
truth.[20]

4. Trial by Ordeal

The Black’s Law Dictionary describe a trial by ordeal as a primitive form of trial in which an
accused person is subjected to a dangerous or painful physical test, the result being considered a
divine revelation of the person’s guilt or innocence. The participants believe that God would
reveal a person’s culpability by protecting an innocent person from the torture. The ordeal might
take the form of the juice of a tree (e.g sass wood) mixed with water, or a burnt powder made
from it and dissolved in water; a knife or other piece of iron might be heated in a fire; the culprit
might be taken to a nearby pond or stream. The guilty one is he who should drink the water and
become sick, handle the red-hot knife and get burnt, or sink when immersed in water.[21]

Formal Justice system/court system

Under the modern system of settling disputes there exists a formal institution for processing
disputes known as courts of law. The courts are managed by judges and magistrates and other
law officers. These people have specialized knowledge and skills and know how to apply
definite substantive and procedural rules to disputes which come before courts for adjudication.
This type of dispute settlement is called ‘rule enforcement’ .Disputes are settled by reference to a
rule of law which is established authoritatively and then applied to the facts of the case. If the
person making the claim established a rule which is in his favour, he wins. If not, he loses the
case entirely.[22]

Alternative Dispute Resolution (ADR) system

Alternative Dispute Resolution systems (ADRS) are currently extremely popular in justice sector
reform program throughout the developing world.[23]ADR has a long tradition in many parts of
the world societies dating back to 12th Century in China, England and America. Early advocates
of ADR include Abraham Lincoln, himself a gifted trial lawyer to whom is attributed the
following exhortation to law students,

“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point
out to them how the nominal winner is often the loser in fees, expenses and waste of time”.

And Mahatma Gandhi who said:

I realised that the true function of a lawyer was to unite the parties…A large part of my
time during the twenty years of my practice was occupied in bringing about private
compromises of hundreds of cases. I lost nothing thereby – not even money, certainly not
my soul.[24]

ADR is defined as a term generally used to refer to informal dispute resolution process in which
parties meet with a professional third party who helps them to resolve their disputes in a way that
is less formal and often more consensual than is done in the courts.[25]

A wide variety of ADR procedures or techniques have developed over the years as a result of the
unprecedented growth in international trade as well as a result of the endless search for quicker
and cheaper alternatives to litigation. Some of these procedures are Negotiation,
Conciliation/Mediation, Arbitration, Adjudication, Med-Arb, Mini-Trial, Private Judging (‘Rent-
a-Judge’), Summary Jury Trial, Early Neutral Evaluation, Neutral Fact-Finding Expert, Last
Offer Arbitration and Mediation and Last Offer Arbitration. These techniques have been
developed along scientific lines by some leading universities and ADR centres in the United
States, Great Britain, Canada and Australia. As far as the United States is concerned, significant
academic resources have been devoted to the scientific study of conflict and the development of
appropriate institutions and practices to deal with that conflict.[26]

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LECTURE THIRTEEN
THE LEGAL FRAMEWORK OF LAND DISPUTES SYSTEM IN TANZANIA
Introduction

Land disputes can be resolved through formal and informal methods. It can be through legal
disputes settlement machineries or Alternative Disputes Resolution mechanisms (ADR). In
Tanzania, there is land settlement machinery based on which specialized courts have been
established to settle disputes at the National, District, Ward and village levels. These courts are
legally recognized and have established procedures. Practically there are other informal justice
systems but they are not recognized by the set up of the machinery.[1]

This lecture therefore offers various legal machineries that can be used in resolving land disputes
in the country, depending with the nature of disputes and other related issues.

1. The land disputes Courts Act, 2002

The Land Dispute Courts Act of 2002 establishes a District Land and Housing Tribunal with
jurisdiction over land matters within the district, region or zone in which it is established. Other
institutions with jurisdiction to entertain land cases that are governed and established by The
Land Dispute Courts Act, herein after referred to as the Act, are The Village Land Council, The
Ward Tribunal, The High Court, and the Court of Appeal.[2] The Act was enacted as the
response to implement one of the underlying principles of the Land Act and Village Land Act;
which is to ensure the establishment of an independent, expeditious, and just system for
adjudication of land disputes. The land courts system established by the Act operates to ensure
that land disputes are adjudicated in a just and expeditious way by an independent institution.[3]

The Act define dispute to includes any case where a person complains of and is aggrieved by the
actions of another person or any case in which a complaint is made in an official capacity or is a
complaint against an official act. The land disputes Courts Act of 2002 Act No.2 establishes
various Courts for the settlement of land disputes. The Act provides for the composition,
functions and the procedure through which disputes could be settled.[4]

The Village Land Council

This council is established subject to the Village Land Act to receive complaints from parties in
respect of land, to convene meetings for hearing of disputes from parties and to mediate between
the parties and assist parties to arrive at a mutually acceptable settlement of disputes. In case any
party to the dispute is dissatisfied with the decision of the Village Land Council shall refer the
dispute to the ward Tribunal in accordance with the Village Land Act.
The Ward Tribunal

The Tribunal is established under the Ward Tribunal Act116 and its jurisdiction extends to the
district in which it is established. It has power to mediate and assist parties to reach at a mutual
acceptable solution to land disputes using customary principles of mediation. The pecuniary
jurisdiction of the tribunal is limited to three million shillings, which is very low hence
increasing unnecessary cases to District land and Housing tribunal as a result land disputes
remain unsolved for a long time.

Moreover, the Act provides for the right of appeal to any party aggrieved by the decision of the
ward tribunal to the District Land and Housing Tribunal within 45days. The Act confers power
to the Minister to make rules prescribing appeals to district land and housing tribunal but no rules
have been made till this time. Appeal in practice is done by memorandum of appeal and the
appellant is free to use any appeal procedure. In the case of Seth Alipipi v MathiasKarugendo,
Land Case No. 31 of 2007, High Court Mwanza Registry, Nyagarika, J. Held that the Minister
has not made rules to prescribe procedure of appeals from Ward tribunal to District Land and
Housing Tribunals per S.21 of Act No. 2 of 2002. Filling of appeal is complete when an appeal
by whatever procedure is instituted in the appellate tribunal upon payment of requisite fees.[5]

The District Land and Housing Tribunal

The tribunal is established in each District, region or zone and is resided by a Chairman and not
less than two assessors. It is responsible for all proceedings under the Land Act, Customary
Leaseholds (Enfranchisement) Act and Rent Restriction Act and the Regulation of Land Tenure
(Established Villages) Act as well as any written law which confer power on it. The pecuniary
jurisdiction of the tribunal is limited to fifty million shillings for immovable property and
40million shillings for subject matter capable of being estimated to money value. Also has got a
jurisdiction to hear appeals and revise records from the Ward Tribunal.[6]

The High Court (Land Division)

The word “High Court (Land Division)” has been deleted substituting it with “High Court”,
hence High court has jurisdiction to hear and determine land disputes. This court has unlimited
Jurisdiction to hear and determine land disputes and appeals from District land and Housing
Land Tribunal provided it is lodged within 60days. Also the court has supervisory and revision
power over District Land and housing tribunal. And any aggrieved party of the High Court
decision may appeal to the Court of Appeal of Tanzania.[7]
The Court of Appeal of Tanzania

The court has power to hear all appeals from High court140 and it shall apply the Appellate
jurisdiction Act141. This law deals with disputes which have arisen and reported to institutions
responsible for settlement of disputes but it does not itself concern with the prevention of
occurrence of land disputes. It is the law which provides for the mechanisms of settlement of
disputes in land matter generally and many Maasai pastoralists do not access these bodies for
settlement of disputes. They end up in fighting when they are dispossessed or interfered with
their land.[8]

Dispute settlement under the investment Act, 1997

The Tanzania Investment Act, 1997 regulates the settlement of investment related disputes
between the Tanzanian government (and its institutions and departments) and the investor, but it
does not shed light on how disputes with local communities will be dealt with. According to this
law, disputes between government and investors should be resolved amicably - that is, through
discussion and negotiation. If amicable settlement fails, investors can bring disputes to
arbitration in accordance with arbitration laws of Tanzania, the rules of the International Centre
for the Settlement of Investment Disputes or any bilateral or multilateral agreement on
investment between Tanzania and the host country of the investor.[9] The Tanzania Investment
Act does not provide for specific mechanisms for the determination of investment disputes
between local communities and investors. Those disputes would need to be determined by
national courts on the basis of applicable national law. As discussed, disputes relating to land can
be taken to the dispute settlement mechanism that was established by the land laws of 1999,
namely the Land Act and the Village Land Act.[10]

The Constitution of the United Republic of Tanzania

This is the mother law above all laws in Tanzania. The Constitution guarantees for the right to
own property by every person and has a right the protection of that property, provided that
property is held in accordance with the law. Moreover the constitution provides the right to
compensation in case of that property being taken in accordance with the lawful law. Land
(property) ownership in this case is a right recognized by the constitution and no person can
alienate or confiscate land from another person unless under due process of the law, which is
reasonable.[11]
The land Act, 1999

On land matters the land Act is the mother law, it is the law with provide a general frame work
on land laws in Tanzania. The law defines land to include the surface of the earth and the earth
below the surface and all substances other than minerals or petroleum forming part of or below
the surface, things naturally growing on the land, buildings and other structures permanently
affixed to or under land and land covered by water. Part XIII provides for Dispute settlement. It
provide for the courts vested with exclusive jurisdiction in hearing and determining land
disputes.[12]

The Village Land Act, 1999

The enactment of the Village land Act purposely aimed at the management and administration of
village land, mostly owned under customary right of occupancy. The law guarantee for
communal land for Pastoralism within a village. The process for titling, granting and registration
of family and communal land within the village are established, with village councils given the
power and authority to administer and manage village lands according to customary rules.[13]

The grazing-land and animal feed resources Act, 2010

This Act is enacted to provide for the management and control of grazing lands, animal feed
resources and trade. The Act replaces the former Rangeland Development and Management Act
Cap 569, which was repealed by the Land Act. The Act translates and implements the National
Livestock Policy of 2006. The Act provides for the establishment of a National Grazing Lands
Council, as well as an Animal Feed Resources Advisory Council. The Act under Section 7 and 8
respectively, establishes the office of the Inspector of Animal Fee and Resources and bestow on
him functions such as the power to enforce standards for maintenance criteria aimed at
improving the grazing land. These standards, however, are inapplicable to Pastoralism since they
do not recognize or take into consideration traditional pastoralist norms and practices, in
accordance with climatic fluctuations.[14]

The land use planning Act, 2007

This Act tries somehow to consider pastoralist by arguing the provision of serviced land to
pastoralists. It requires the pastoralists to be given land for grazing their livestock with regard to
their potential role in the community. Also it provides for a list of matters to be included in
village land use plans, which among others is the consideration of livestock. This law is silent on
land disputes among pastoralists.[15]

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LECTURE FOURTEEN
LAND RIGHTS AND DISPUTES IN PASTORALISTS SOCIETIES IN TANZANIA

Introduction

Most pastoralist groups hold the land they use by virtue of long practice and custom. While they
have strong proprietary feelings toward their territories, their customary rights in those areas are
often not recognized in national law. In other cases, customary rights had been recognized during
the colonial period, but recognition was withdrawn by post-independence socialist
governments.[1] There are exceptions to this in countries like Morocco, where those rights were
recognized as early as 1948 and continue to receive recognition. In the absence of such
recognition, the lands used by pastoralists are usually considered to be owned by the state. This
is by virtue of legal provisions, sometimes in the constitution and in other land legislation, that
land to which no private title has been established is the property of the state. The failure of
national law to recognize the customary rights of pastoralist groups has left those communities
highly vulnerable to the current wave of appropriations of land for large-scale commercial
exploitation.[2]

In Tanzania, Land has long been a complex and debatable issue for so long and remains so
today. Like many other African countries Tanzania is constantly under pressure both from
internal and international environmental organisations, conservationists, hunters associations etc.
to increase areas under conservation and to increase restrictions in areas already conserved. This
is directly and indirectly reflected in recent policies and legislations like for example the Forest
Policy of 1998, the Community Based Forest Management Guidelines of 2001, the Forest Act of
2002, the Environmental Management Act 2004, the Wildlife Policy of 1998, the Draft National
Livestock Policy of 2005, the Strategic Plan for the Implementation of the Land Acts.
Establishment of Game Reserves and conservation are frequent sources of conflicts in many
parts of Tanzania.[3] Increasing land scarcity and conflicts of interest between different land
users in these and other areas have implied that huge numbers of people have migrated in search
of arable land and pastures elsewhere.[4]

Laws, policies and interventions affecting pastoralists’ land rights

The land tenure and natural resource management framework in Tanzania is composed of a
complex set of laws, regulations and policies that govern all social, economic and political
interests of „all‟ stakeholders. The most important policies and laws, that affect pastoralists’ land
rights include the land policy (of 1995), the land act no. 4 (of 1999), the village land Act no. 5
(of 1999), the livestock policy (of 2006), the land use planning act (of 2007), the wildlife
conservation act no. 5 (of 2009), the grazing-land and animal feed resources act, no. 14 (of
2010), and the livestock identification, registration and traceability (of 2010).[5]

The present legal framework and procedures for the regulation of land rights in Tanzania is laid
out in the two new Land Acts e.g. The Land Act and the Village Land Act of 1999 that became
operational in May 2001. The policy behind these acts is the National Land Policy of 1995.[6]

All land in Tanzania is legally “public land and control is vested in the president for and on
behalf of all Tanzanians” .The Land Acts of 1999 divides land into three categories that referred
as “General Land”, “Reserve Land”, and “Village Land”. The land administration and
management is decentralized. The “General Land” is controlled based on the land act openly
under the Commissioner, “Reserve Land” under statutory or other bodies is set up with the
powers over these lands e.g. forest reserves are governed by the “Forest Act of 2002”. Game
reserves and other wildlife areas governed through the “Wildlife Conservation Act of 2009”, and
“Village Land” is governed by the “Village Land Act of 1999” and under the administration of
the village council. The village council acts as an agent of the “Land Commissioner” in
administering land and trustees on behalf of village members, who together formally compose
the village assembly. Thus the principle is that the village council administers the land through
the authority of the village assembly which is the highest authority at the village level. The
village assembly must approve of any changes in land use and changes in the status of various
types of land in the village. General or reserve land can be transferred to the village based on
what the law allows visa vie village land can also be transferred to the two categories based on
the head of state decision.[7]

In Tanzania and in many other African countries the rights of commons have been very insecure.
Several studies show that areas previously occupied by pastoralists or used by hunter gatherers
have been constantly reduced due to conservation efforts, development interventions, or due to
expansion of cultivation activities into grazing areas and forests and woodlands. It has also been
shown that one of the reasons why it has been possible to alienate land from the pastoralists and
hunter gatherers is that their rights were not well provided for in the previous land legislation in
Tanzania , and that their type of land use put them in a disadvantaged position in relation to
defend their rights.[8]

In the New Land Acts[9] there are several provisions for the safeguarding of communally held
rights. Such rights can be registered and the law also recognizes land sharing between
pastoralists and agriculturalists. However, it has been observed that the rights of pastoralists are
too scanty and in some places there are contradicting provisions in the Village Land Act and the
Land Act. Moreover, it has been emphasized that there are provisions in recent policies and
legislation based on which whatever rights of the commons provided for in the two Land Acts
may be undermined.[10]The Forest Act of 2002, the 1998 Wildlife Policy, Environmental
Management Act 2004, the Draft Livestock Policy 2005, Tanzania Private Investment Act 1997,
and the newly established Land Bank Scheme have sections which potentially may be very
detrimental to the rights of the commons.

The pastoralists’ land rights and the State

In Tanzania, approximately 10 percent of the population (2.2 million people) practices

pastoralism or agro-pastoralism, and depends on land in semi-arid regions (grasslands, thickets,
woodlands, and forests that make up nearly 80% of Tanzania’s landmass) for their livelihoods.
Many of these pastoralists and agro-pastoralists are also transhumant, moving seasonally with
their livestock to access forage and water.[11]

From the colonial era until the present, pastoralism has faced serious discrimination and
dismissal as an illegitimate and unsustainable lifestyle, both by the government and, in some
cases, by donors. In addition to national land reforms that have marginalized their needs and
rights, pastoralists also have had to cope with a changing climate, the breakdown of customary
institutions, and reduced grazing areas.[12]

A growing population and land degradation in Tanzania have led to increased cultivation on
marginal lands, and reduced the amount of land available for grazing. The government also has
set aside land for conservation (e.g., national parks and wildlife reserves) and large-scale
agriculture projects, removing it from pastoral use. As a result, some pastoralists have settled
permanently as farmers, and others have been forced to migrate to other regions. Many
pastoralists have migrated to southern, eastern, and central parts of Tanzania to continue
livestock rearing, while an increasing number of Maasai have moved to urban areas in search of
paid work. In their new homes, pastoralists often experience conflict sometimes violent with
agriculturalists, conservation administrators, and others with competing land interests.[13]
A number of pastoral organizations have also expressed fear that pastures may be looked at as
‘idle’ or ‘bare’ land, and then be identified for investment purposes. A large part of the land
areas used for pastures fall under the category general land, which is under the exclusive control
of central government. Pastoralists fear that the government may find it in the interest of the
general public that such land is used for investment purposes instead.[14]

Pastoralists are thus marginalized as they are hardly involved in local and regional planning.
While the negative impacts associated with increasing scarcity of land during the dry season is
compounded by increased pressure transforming into conflict because pastoralists hold no more
rights to previously accessed grazing lands, many times it is the conflict over resources, and
access to those resources that underlie the conflict. This has caused a decline in social and
economic conditions among pastoralists.[15]

Based on the land acts the president can identify any land for other use including private
investments, if it is seen as being in the interest of the public. Although procedures for taking
land away from the villagers are explained in the village land act still centralized powers over
village land are applied. Recent evidence has shown that the various government leaders of
Tanzania since the independence have indeed used their powers and alienated a lot of land, both
individual government officials at various levels, and the National Government from mainly
pastoralists Maasai community. Many of the more recent land acquisitions have happened in the
name of conservation and development (wildlife conservation and growing urban). Land
acquisitions with legal and illegal means have become common in present days in the country
and specifically in the Maasai grazing land. The evictions of pastoralists from different areas like
Ihefu (Usangu Plains), Kilosa, Ngorongoro, Loliondo, Eworendeke etc., show a clear trend of
land insecurity despite of implementation of village land Act. Both direct and indirect eviction is
applied in this process.[16]

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LECTURE FIFTEEN
LECTURE FIFTEEN
 LAND REGISTRATION

Introduction

Two unique characteristics of land distinguish it from other types of property. First, land is
immovable, so it cannot be physically transferred from one person to another. Second, land is
permanent; it cannot be increased, decreased, or destroyed as can all other forms of wealth.
Land's permanence makes it peculiarly capable of lasting re-cord. Land tenure and title featured
importantly in early agricultural economies. Contracts entered into as early as the third
millennium B.C. demonstrated that people needed tenure security in the land they cleared. The
Bible tells of an early land transaction in the book of Jeremiah. In 587 B.C. Jeremiah bought his
cousin Hanameels's field in a purchase of land that involved a sealed deed prepared in
accordance with legal requirements.[1]

Official records of land ownership date even further to 3000 B.C., where in ancient Egypt rulers
kept a Royal Registry to record landownership for taxation purposes.' Much later in Europe, land
records were gathered for purposes of taxation. Napoleon I's establishment of a "cadastre" in
France encouraged the development of similar systems throughout the continent. Although early
efforts to establish comprehensive land records systems in Europe were mainly for purposes of
public taxation, there were also private needs for land records to facilitate effective land
transfers. It was the need for land records that eventually provided the impetus for land
registration systems.[2]

"Land registration system"is defined as any public system of records concerning legal rights to
land or Land registration generally describes systems by which matters concerning ownership,
possession or other rights in land can be recorded (usually with a government agency or
department) to provide evidence of title, facilitate transactions and to prevent unlawful
disposal.[3] The term can also be defined as the official, systematic process of managing
information about land tenure.

Land registration systems, involve deeds recording, and title registration. A Deed recording is a
system of giving publicity to land transactions and helping to prevent concealed dealings. The
act of recording a deed gives notice to the public of a claimed interest in land and establishes
priority against other possible claimants to the same interest although there is usually no
statutory compulsion for parties to a transaction to record their documents although it is prudent
for them to do so while it is risky if they do not.[4]
A term closely associated with land registration is cadastre, defined as a public register showing
details of ownership of the real property in a district, including boundaries and tax assessments.
The cadastre is an information system consisting of two parts: a series of maps or plans showing
the size and location of all land parcels together with text records that describe the attributes of
the land. It is distinguished from a land registration system in that the latter is exclusively
concerned with ownership. Both a cadastre and a land register must operate within a strict legal
framework, but a land register may not in practice record all land over a whole country since not
all citizens may choose to register their lands. Furthermore, when introducing a new system of
land registration, selected areas may be given priority and other areas excluded for the meantime
in order to maximize the best use of resources.[5]

The cadastre however should be based on complete coverage of a country, since it may be used
for the purposes of land taxation. Surveys for the cadastre can be used to support a land
registration system and indeed in many countries the term “cadastral surveying” is used to
describe the survey of land for the purposes of recording ownership. In Finland and Sweden, for
example, real property formation, mutation, land consolidation, cadastral mapping, registration
of real properties, ownership and legal rights, real property valuation and taxation are all
combined within one basic cadastral system. [6]

Categories of land registration

The three systems for recording rights in land are: (a) private conveyancing; (b) the registration
of deeds: and (c) the registration of title.

1. Registration of deeds

A Deed recording is a system of giving publicity to land transactions and helping to prevent
concealed dealings. The act of recording a deed gives notice to the public of a claimed interest in
land and establishes priority against other possible claimants to the same interest although there
is usually no statutory compulsion for parties to a transaction to record their documents although
it is prudent for them to do so while it is risky if they do not.[7] An unrecorded document is
legally ineffective against any subsequent bona fide purchaser or mortgagee who first records an
interest in the same land. For example, suppose that a vendor fraudulently sells the same piece of
land to two different purchasers at different times. The purchaser who first records his or her
transaction has the better claim to the land, even if that transaction took place later than the first
one, provided the purchaser has bought in good faith and is unaware of the first purchase. In such
a situation the first purchaser has no claim against the deeds registry and would have to pursue a
legal remedy against the vendor, who by that time might be bankrupt or have fled the
jurisdiction.[8]
Deed registration only registers transactions in land without establishing the legal right of the
interested parties to the land affected.[9]

2. Registration of title

Title Registration is more than the mere entry in a public register; it is authentication of the
ownership of, or a legal interest in, a parcel of land. The act of registration confirms transactions
that confer effect or terminate that ownership or interest and once the registration process is
completed no search behind the register is needed to establish a chain of title to the property, for
the register itself is conclusive proof of title. This type of title is often referred to as indefeasible
(or absolute), which means that it cannot be legally defeated, except in situations where a title
was obtained by fraud.[10]

This system was first introduced in Australia in 1858 by Sir Robert Torrens. Torrens believed
that a land register should show the actual state of ownership, rather than just provide evidence
of ownership. Under this system, the government guaranteed all rights shown in the land
register.[11]

3. Private conveyancing

In private conveyancing, documents agreeing to the transfer of ownership are passed between the
seller (vendor) and purchaser (vendee), usually with the guidance of a lawyer. The State merely
provides; legal framework within which this process takes place. Private conveyancing is
generally regarded as inefficient and potentially dangerous since it can be subject to fraud as
there is no easy proof that the vendor is the true owner.[12]

Objectives of land registration

The primary objective of any set of land registration arrangements should be to effectively
manage information about land tenure to support land administration and management.
Effectiveness can be measured in many ways, as for example, in terms of the quality of
information and information services .Although usually treated separately, equity may also be a
measure of effectiveness, especially when considering who has access to information, services,
or even the benefits of land registration. However, the specific objectives of land registration
include the following;

1. To ensure that land transactions are expedient and cost-effective;

2. To support efficient and equitable valuation and taxation of property;
 3. To provide information for effective land planning and development decisions;
4. To reduce and more efficiently resolve title and boundary disputes;
5. To raise revenue through land transfer taxes and service fees;
6. To minimize the direct public cost of land registration.

Advantages of a land registration system

a) Greater Tenure Security

Land registration provides a degree of certainty and security to the owner as well as to others
having rights in land. Such secure rights are particularly important for agricultural land.
Economists and others have long argued that increasing security of individual property rights in
land stimulates private investment and agricultural development because the individual is more
willing to make long-term improvements.[13]

b) Greater Access to Credit

The registration of rights to land establishes those rights in the eyes of the law and provides
documentary evidence necessary to prove land rights. The holder of the land rights thereby
becomes "creditworthy" and can pledge his land rights as security for a loan.[14]

c) Dealings in Land More Expeditious, Reliable, and Inexpensive

Without reliable land registers, land transactions may be expensive, time consuming, and
ineffective. It is normally necessary to establish that the reputed owner actually has the legal
right to alienate the property. This process may be complicated or confusing for the lay person.
In many countries that lack a land register, property owners use legal experts to conduct title
searches and to establish ownership. The costs are often considerable." A land registry not only
makes extended searches of land rights unnecessary, but also makes it possible to use simpler,
standard forms of conveyance. A formal land registry aids small rural landholders, who often
cannot bear the cost of professional conveyancing assistance.[15]

d) Establishment of a Land Market

One difficulty facing many developing countries and former centrally- planned economies is the
absence of a functioning land market. The reasons may be extreme procedural difficulties in
transferring land, lack of land market information, unclear delimitation of individual and group
rights, insecure ownership, and so on. A land registration system can remove such obstacles and
stimulate a land market.[16]

e) Improvement of Land Administration and Public Administration

Because land is an important resource for every country and community, land administration is a
very important function. It is almost self-evident that to plan land development, one must know
the basic facts concerning the land. Better land use is encouraged through planning regulations.
Such improved land use can occur through direct action like zoning, protection of ecologically
sensitive areas, public urban development, land consolidation, irrigation projects etc. But it can
also be achieved indirectly by providing the suitable conditions for private development
mentioned above, such as tenure security and access to credit." Land records based on well-
defined land parcels are essential for all these purposes.[17]

f) Reduction in Land Litigation

A well-designed and efficiently operated land registration system can greatly reduce disputes and
litigation over land, resulting in better social relationships, less work for overworked courts, and
less expenses for the individual.[18]

g) Improved Basis for a Land Tax

Establishing a land registration system will also create a better basis for land taxation." A good
land registration system based on maps and embodying the unique identification of each land
unit, provides the information necessary for a successful tax system. An improved land taxation
system provides several benefits, such as increasing revenues by making tax coverage complete,
producing a fairer system because boundaries and land areas are more specifically identified, and
providing information necessary to identify and punish tax evaders.[19]

Disadvantages and costs of land registration

While the potential benefits of a land registration system are many, the introduction of land
registration does involve costs and can even lead to negative effects. Any government
considering the establishment of a land registration system must consider the following factors.

1) High Cost of Compiling and Maintaining a Register

The high cost of implementing a land registration system is the main cause for hesitation on the
part of developing countries.' An efficient land registration system is expensive. Various studies
on the actual costs of conducting surveys and establishing land title registration systems reveal
the involvement of high cost in conducting such exercise. Establishment of a land registration
system will likely take several years to complete and will use significant numbers of educated
persons who could very likely be used for other development projects. Moreover, operation and
maintenance of the land registration system, once established, will require significant additional
costs.[20]

2) Dispossession or Greater Tenure Insecurity for Smallholders

Providing registered land rights to small farmers and promoting a land market potentially
contributes to further dispossession instead of relieving landlessness. In what has become an
often-quoted phrase, Schickele states: "The surest way to deprive a peasant of his land is to give
him a secure title and make it freely negotiable.[21]

Beyond the costs and potential negative effects of a land registration system, there are other
grounds for opposition. Some objections to establishing a land registration system are justified,
whereas some objections are based on misconceptions or suspicions about government motives."
In any case, policy makers and those responsible for designing and implementing a land
registration system should be aware of the following grounds for opposition.

1. a. Fear of Land Tax or Compulsory Acquisition

A rural population may understandably resist compilation of a land register for fear that the
government will use it as a basis for the assessment or enforcement of a land tax.[22]

1. b. Opposition of the Legal Profession

Lawyers are notorious for their reluctance to accept changes in traditional procedures. Such
reluctance is often based on self-interest. For example, Torrens's efforts to introduce land title
registration in South Australia were strongly opposed by the legal profession. Similarly, attempts
to simplify England's land title registration system have been blocked by the bar.'[23]

1. c. Suspicion Aroused by Incomprehensible Legislation

In developing countries, suspicion and antagonism have been aroused by the hasty enactment of
legislation based directly on foreign statutes with little or no adaptation to local conditions."
Such legislation frequently uses the untranslatable jargon of English real property law, which is
further aggravated by the introduction of foreign legal concepts without adequate explanation. If
foreign lawyers are to assist with legislative drafting, they should work closely with local
lawyers who are capable of adapting foreign legal jargon and concepts to local
understandings.[24]

Determining land rights

Before land rights are registered, the government must ascertain existing rights to determine
what land rights should be entered on the register. Depending on the existing system of land
rights and land documentation, there are three methods of accomplishing this task: (1)
adjudication, a process which can be either "sporadic" or "systematic"; (2) registration of state
grants; and (3) conversion of a registration of deeds system." These methods may be used in
combination.

1) Adjudication

Adjudication is the process whereby existing rights in a particular land parcel are finally and
authoritatively ascertained. Adjudication has been the most common method of determining land
rights for registration purposes’. Unless land registration is performed in coordination with a land
reform program, adjudication does not aim to alter existing rights or create new ones, but merely
ascertains what rights exist, by whom they are exercised, and to what limitations they are
subject.'[25] Land adjudication (or land settlement as it is sometimes called) enables the state to
determine and confirm the ownership of, and the legal interests in, individual parcels of land. It
also provides for the physical demarcation of parcels boundaries. The need for adjudication may
arise from dispute or simply from uncertainty. Even where land is unoccupied and is apparently
owned by the state. [26]Adjudication provides a convenient method of cleansing the title by
making sure that no adverse claims exist or if they do exist, they are properly dealt with.

2) Cadastral survey

A legal cadastre provides the geographic underpinning of a land title registration system.
Cadastral index maps show all the parcels in a registration district in their correct relationship to
each other. Parcel boundary dimensions and superficial area can be shown numerically on the
map or derived from scaling. The map will not normally portray contours or other topographic
information, except where a natural feature, such as a stream, forms a parcel boundary. Each
individual parcel is represented on a large-scale cadastral plan; which, in addition to numerical
boundary and area data, usually shows buildings, fences and other enclosures, and boundary
markers.[27]
3) Registration of State Grants

The closest approach to a clean slate in land holding occurs when the state disposes of land by
statute or by its own initiative. In such cases, the state grants title that is absolute. While it is easy
to maintain a record of such grants when they are made, keeping the registry current is only a
matter of entering any and all changes in the registry.[28]

4) Conversion of Deeds Register (or Recordation System)

If the country already has some system of deeds registration in place, recourse to adjudication in
the field may be avoidable. If the deeds registry is fairly complete, and there is adequate mapping
of boundaries, a careful examination of the deeds may be sufficient to identify the parcels and
their associated property rights. However, even when existing records are fairly complete, some
fieldwork is generally necessary.[29]

A student is also required to read the land registration Act, Cap 334

References

James R. W. (1967), Some Problems on Leases and Licences, 1967 E.A. L. J. 246

James, R. W. (1971), Land Tenure and Policy in Tanzania, East African Literature Bureau,

Nairobi, 1971.

Fimbo, G. M. (1992) Eassays in Land Law, Tanzania, printed by the Dar es Salaam University

Press, 1992.

Riddal, J. G. (1983), An Introduction to Land Law, Third Edition, Butterworths, London, 1983.

MEGARRY’s Manual of the law of Real Property, SixthEdition, Stevens & Sons, London,

1982.
Kjekshus, H. (1977), Ecology, Control and Economic Development in East African

History, The Case of Tanganyika, 1850-1950, Heinemann, London 1977.

Corry, H., (1955), Report on Nyarubanja System in Bukoba, 1955. Reining, Priscilla C.,

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 LECTURE SIXTEEN

LECTURE SIXTEEN
COMPULSORY LAND AQUISTION

INTRODUCTION

Compulsory acquisition is the power of government to acquire private rights in land for a public
purpose, without the willing consent of its owner or occupant.[1] Compulsory acquisition or
expropriation is given synonymous names in different countries; these include condemnation,
compulsory purchase, eminent domain or takings .These are different names for one and the
same legal institution “that which allows states to acquire property against the will of its owner
in order to fulfill some purpose of general interest.” ‘Compulsory acquisition’ refers to a
government decision, whereas ‘expropriation’ is the result of this decision. In case of
expropriation, compensation is paid to landowners only, not to holders of secondary rights.[2]

Compulsory acquisition of land (property) is a common practice in most countries where the
state deems the acquisition to be beneficial to the general public. This is important for the
realization of economic and social rights through the establishment of public utilities, schools,
hospitals and particularly transport infrastructure which would not be possible without
compulsory purchase of private land which sometimes must be executed against the will of the
owners.[3] In Tanzania the Land Acquisition Act 1967 empowers the President to acquire any
land for public or good cause. Some other government bodies are empowered to acquire land
through compulsory purchase in the course of discharging their key functions, including those
engaging in provision of electricity, gas, water and transport.[4]

Although the compulsory acquisition power is deeply rooted in almost all legal systems, the
establishment of efficient and fair legal and institutional frameworks for exercising this power
remains unfinished business in many countries around the world. From Brazil and China to
Ghana and the United States, the task of better defining the principles and processes that govern
compulsory acquisition powers is one that is very much alive and at the heart of current land
policy debates.[5]

BACKGROUND OF THE PROBLEM

The Current laws have roots from the colonial past. For decades colonial and newly independent
government of Tanganyika used Land Acquisition Ordinance Cap 118 of 1926, to compulsorily
acquired native lands for public interests or purposes. This law was repealed in 1967 by the
introduction of Land Acquisition Act, a statute which operates to-date. It is argued that
colonization of Tanganyika and the legal developments that followed created immense
milestones in economic, political, and cultural development of the country. However, it must be
noted that attainment of independence and the professional developments experienced in the
areas of valuation and land laws, had not altered the expropriation laws or practice.[6]

Colonial interpretation of public purpose seemed to have been very wide and included among
others, adding a sanitary lane to some plots, construction and widening of roads; eradication of
mosquito breeding grounds in the anti-malaria campaigns; development schemes for residential
settlements; public housing especially for Europeans; public water supply projects; harbor
expansion programs; construction of factories, and many more. Using today‘s metaphor, it is
clear that some of the so-called public purposes were unjustified because they included non-
public programs meant to perpetrate colonial predatory policies like racial segregation and
systematic economic deprivation. Such exploitative purposes raised skepticism among the
affected people, especially native Africans.[7]

In many of the acquisition cases, the affected people had to agree not only to the proposed land
acquisitions, but also to the compensation amounts. Normally, colonial land office organised and
oversaw expropriation processes by identifying the proposed acquisition area, compensable third
party interests, and issued notices of the intention to acquire before actual land repossession took
place. Despite considerable legal clarity public purposes clauses were often misinterpreted or and
manoeuvred as exemplified in the case of Kisutu demolitions undertaken in 1935.[8]

LAWS AND REGULATIONS GOVERNING COMPULSORY LAND ACQUISITION[9]

The following laws govern compulsory land acquisition in Tanzania;

 1. The Constitution of the United Republic of Tanzania of 1977

Article 24 (i) of the Constitution of the United Republic of Tanzania specifies that every person
is entitled to own property, and has a right to the protection of his property held in accordance
with the law. It is unlawful for any person to be deprived of his property for the purpose of
nationalization or any other purpose without the authority of law which makes provision for fair
and adequate compensation.

2. The Land Acquisition Act No.47 of 1967

The Land Acquisition Act, 1967 provides in part II that compulsory acquisition powers will be
exercised in the public interest. According to section 7 of the Land Acquisition Act of 1967,
occupiers of the selected land may be given a period before yielding possession for example to
harvest their crops. Nevertheless, people cannot be told to vacate land without first obtaining due
compensation. The rights of landowners are only extinguished after due compensation.

3. The Town and Country Planning Act, Cap.355

Section 45 empower the President to acquire the land in a planned area for the purpose of
securing its use and must ensure it is being developed in accordance to the planning scheme
applicable to the area. Section 50 (1) provides that; compensation payable shall be taken to be
the value of that land within the planning area plus the value of any development done within the
planning area.

4. The National Land Policy of 1995

The Policy statement under the National Land Policy states that; compensation for the land
acquired in public interest will be based on the concept of Opportunity cost and that will include,
market value of the real property, disturbance allowance, loss of accommodation, transportation
allowance, cost of acquiring the subject land, any other cost of incurred to the development of
the subject land and compensation should be paid promptly and if not paid in time, interest rate
will be charged. These principles provide the basis for provisions in Land Act No.4 and 5 of
1999.

5. Land Act No. 4 and No. 5 of 1999

Contrary to the Land Acquisition Act of 1967 which has restrictions on compensation for land
acquired to the exhausted improvements, the two more recent Acts - namely Land Act and
Village Land Act of 1999 - both advocate for the full fair and prompt compensation based on the
market value of the property per Section 3(1)(g) in both Acts. The same Section stipulates that in
assessing compensation, the following should be taken into account; market value7 of the
property, disturbance allowance, transport allowance, loss of profit or accommodation, cost of
getting or acquiring the subject land and any other cost or capital expenditure which the outgoing
owner had incurred till the time of intended acquisition at a market derived rate of interest.

6. The Urban Planning Act, 2007

This is the main urban use planning guide and it provides for specific regulations to address
compensation. Section 60 provides that compensation payable shall be equal to the value of that
land within the planning areas, plus the value of any development done with the planning
consent by the landlord. Compensation will be as referred by the land act of 1999 and its
regulations of 2001.

7. Universal Declaration of Human Rights, 1948

The Universal Declaration of Human Rights, 1948 under article 17 states that; "Everyone has the
right to own property alone as well as in association with others. No one shall be arbitrarily
deprived of his property”. It further provides that it is a human right for anybody to be
compensated when his/her property is acquired by the state for public purpose.

Compulsory land acquisition

Compulsory acquisition of land involves expropriation of private rights in the property; it is a

restraint on the right of private owners to be able to dispose off property according to their wish.
The Land Acquisition Act of 1967 CAP 118[RE 2002] provides for the compulsory acquisition
of lands for public purposes and in connection with housing schemes. The Law intends to
legalize the taking up, for public purposes, or for a company, of land which is private property of
individuals the owners and occupiers, and pay equitable compensation therefore calculated at
market value of land acquired, plus an additional sum on account of compulsory character of
acquisition. Section 3 of the land acquisition Act empowers the president to acquire land
compulsorily.

The main purpose of compulsory acquisition by President according to section 3 of the Land
Acquisition Act is for the Public interest. The President may, subject to the provisions of this
Act, acquire any land for any estate or term where such land is required for any public purpose.”

Section 4 of The Land Acquisition Act defines public purpose as follows;

4 (1) Land shall be deemed to be required for a public purpose where it is

(a) for exclusive Government use, for general public use, for any Government scheme, for
the development of agricultural land or for the provision of sites for industrial, agricultural
or commercial development, social services or housing;

(b) for or in connection with sanitary improvement of any kind, including reclamations;
(c) for or in connection with the laying out of any new city, municipality, township or minor
settlement or the extension or improvement of any existing city, municipality, township or
minor settlement;

(d) for or in connection with the development of any airfield, port or harbour;
(e) for or in connection with mining for minerals or oil;
(f) for use by any person or group of persons who, in the opinion of the President, should
be granted such land for agricultural development.

(2) Where the President is satisfied that a corporation requires any land for the purposes of
construction of any work which in his opinion would be of public utility or in the public interest
or in the interest of the national economy, he may, with the approval, to be signified by
resolution, of the National Assembly and by order published in the Gazette, declare the purpose
for which such land is required to be a public purpose and upon such order being made such
purpose shall be deemed to be a public purpose for the purposes of this Act.

The term Public purpose has been the centre of discussion in various disputes and has invited
several legal interpretations. The concept of ‘public purpose’ is one of the most entrenched
issues in the legal field, what constitutes pubic purpose is an open question subject to
interpretation and use. There are number of cases which have considered the word “public
purpose” but none of them have proposed to lay down the definition or the extent of the
expression. Black’s law dictionary defines the word ‘public purpose’ as synonymous with
governmental purpose. “A public purpose or public business” has for its objective to promote
public health, safety, morals, general welfare, security, prosperity and contentment of all the
inhabitants or residents within a given political division. In Somavathi v. State of Punjab[10],
Supreme Court said: “Broadly speaking, the expression ‘public purpose’ would however include
a purpose in which the general interest of the community as opposed to the particular interest of
the individuals is directly and vitally concerned”. In AG v SISI Enterprises Ltd[11], the High
Court decided that the acquisition was not in public interest and no reasonable notice was given
before the said acquisition.

Compulsory Land acquisition Scheme is the process governed by multiple legislations with
diverse objectives like;

1. Public purposes as defined by Act No.47 of 1967 and in Land Act No.4 of 1999

2. Transfer of categories of land under section 4(7) & 5(7) of the Land Act, 1999

3. Hazardous land under section 7(8) of Act No. 4

4. Regularization scheme as per section 60 (1)(f) & 60(3)(c) of Act No. 4 of 1999

5. The Wild life Act of 2008

Land can be acquired for public interest under the Land Acts. The Acts, empower the President
to transfer one category of land to another i.e. General Land to Village Land; Village Land to
General Land; or General Land to Reserved Land. Both the granted right of occupancy and the
customary right of occupancy can be compulsory acquired. There is a greater possibility for
village land to be acquired by the executive, moving it from the jurisdiction of the Village
Council such as by allocating it to non-village organizations or to foreigners under the National
Investment (Promotion and Protection) Act 1990.[12]

The Land Acquisitions Act in sections 6-8 stipulate that, if the President resolves that any land is
required for a public purpose, the Minister shall give notice of intention to acquire the land to the
persons interested or claiming to be interested in such land, or to the persons entitled to sell or
convey the same, or to such of them as shall, after reasonable inquiry, be known to him.

1. Notification of Government’s intention to acquire the land

2. Explanation(workshop) to landowners on their compensation and resettlement

rights
 3. Assessment of compensation(identification and measurement of the affected assets)

4. Resettlement needs analysis.

5. Approval mechanism for assessed sums

6. Payment procedures and allocation of new Lands to the affected population

Compensation for compulsory acquisitions may be monetary or may entail relocation or

alternative allocation. Items liable for compensation include the value of unexhausted
improvement, disturbance allowance, allowance for transport and accommodation; and loss of
profits. The Land Regulations do not provide for compensation for unoccupied land. Thus there
is a real likelihood that undeveloped plots of land, such as used for grazing, will not be
compensated for the acquisition.[13] The International Valuation Standards (IVS) on the other
hand provide the critical point concerning expropriation based on the issue of compensation.
These Standards ask: Will the valuation methods and manners together with the status lead to
full and just compensation? The rules for compensation depend on rules and regulation of each
country. The underlying idea is that the financial and economic position of the property owners
shall remain the same despite expropriation. No one should become poor or rich as the result of
the exercise.[14]

CONCLUSION

The law and practice concerning Land Acquisition in the country has been strongly been
criticized by people for being unfair. Intentionally or for lack of proper consideration of
fundamental rights of citizens, the whole process has been violating the right to property as
provided by the Constitution of Tanzania. It overrides the right of a person to own a property, so
the law in general should be strictly construed.Experience from the practice reveals that most of
the time objections have been directed to compensations and not to acquisitions. For instance the
recent case of Kipawa residents , their main objection focused on miscalculations of
compensations, on other hand the situations is different in areas around National parks and
protected areas. Pastoralists in or around National Parks like Nkomazi game
Serengeti,Ngorongoro Crater and Loliondo have always seen to resist the entire process of Land
acquisition, the main reasons behind their rejection is the lack any sort of Compensation.

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 LECTURE SEVENTEEN
LECTURE SEVENTEEN
LAND RIGHTS AND INVESTMENT IN TANZANIA

Introduction

The current situation with regard to ownership, control and management of land in Tanzania is
that: The radical Title is vested in the President as trustee for and on behalf of all citizens of
Tanzania. For the purposes of management only, all land is classified as general land, Village
land and reserve land.[1] The President has powers to transfer land from one category to another.
Reserve lands are forests, wildlife areas, etc., which constitute 28 percent of all lands. Village
land is all land that falls under the jurisdiction of the existing 10,832 registered villages in the
country which constitutes nearly 70 percent of all land. The rest is mostly urban land and that
land already under granted titles. The Commissioner for Lands is the sole authority responsible
for overall administration of all lands, but has delegated his powers to authorized land officers at
district/municipal level. The Village Councils manage all village land with advice from the
Commissioner for Lands.[2]

While under the Village Land Act, General Land is a residual category encompassing only land
that cannot be defined as Village or Reserved Land; the Land Act includes “unoccupied or
unused village land” in its definition of General Land, and fails to specify what constitutes such
land. This definition makes it relatively easy for the government to appropriate Village Land.
Both Acts place all General Land under the authority of the national government.[3]

Despite the progressive provisions of the Village Land Act, customary land rights have not been
effectively integrated into the land governance framework, and village authorities often lack the
requisite financial and human resources to effectively perform their duties. Furthermore, given
the current global demand for land, the ease by which the executive branch can appropriate
Village Land is also a concern.[4]

The creation of Tanzania land Bank

The Government of Tanzania knew the hindrances faced by investors on acquisition of land and
intended to find various ways to accelerate land delivery for investment. One of the solutions
was the creation of Land Bank that can be accessed through the Tanzania investment centre
(TIC).

The Land Bank was created under section 20-(1) of the Land Act, the law provides that a non-
citizen of Tanzania shall not be allocated or granted land unless it is for investment purposes
under the Tanzania Investment Act, 1997. It is intended that land for investment purposes will be
identified, gazetted and allocated to the Tanzania Investment Centre (TIC) by way of right of
occupancy. The TIC will, in turn, grant derivative rights to investors.[5]

However, there is a concern that although Land Policy denies foreigners from owning land
directly in Tanzania but Act No. 5 section 32 does not imply to such limitation, the Act does not
restrict other forms of acquisition of land rights by non-citizens. One can acquire the land
without restriction by purchasing from government through auctions or tenders or from the
Presidential Parastatal Sector Reform Commission (PSRC) in the process of privatization of
public enterprises. Further, a non-citizen may obtain a derivative right from a village council
(section 32 of the Village Land Act). No restriction is placed on purchases, by noncitizens, of
rights of occupancy or even customary rights of occupancy in the market place.[6]This is in
direct contradiction to the Land Act which disallows land ownership by a company with majority
foreign ownership; however it is an established principle that in any conflict with the Land Act,
the Land Act takes precedence meaning that the Companies Act provision of Land Ownership
would likely not be valid under our laws.[7]

Acquisition of land rights to foreign people in Tanzania

Foreigners can enjoy the rights to use and occupy land through the following ways;

1. Derivative rights

Land for investment purposes is granted to the Tanzania Investment Centre (“TIC”) which in
turn grants derivative rights to investors for a specified amount of time which shall not exceed 99
years. Investors wishing to have rights to occupy and use land may apply to the TIC stipulating
the location for investment, the size of land required, purposes for the use of the land etc. Upon
approval of the application, the TIC shall grant the investor the derivative right to use and
occupy the land i.e. the investor’s right to use and occupy the land is derived from the TIC. If the
investor fails to implement the investment as applied to the TIC, the TIC may re-acquire the land
from the investor and the investor will be entitled to be paid compensation for any development
made on the land. The advantage of acquiring land under the TIC is that the investor may also
mortgage the period of derivative right granted by the TIC to any financial institution in the
country to obtain a loan for purposes of being able to implement the intended investment.[8]

2. Lease

Most foreign companies opt to enter into lease agreements with land owners who have been
granted right of occupancy. Persons granted right of occupancy may enter into lease agreements
either with citizens or non-citizens provided that the maximum term for which any lease may be
executed shall be ten days less than the period for which the right of occupancy has been granted.
This is the quickest way for such a company to enjoy land rights in Tanzania.[9]

3. Joint Venture

Foreigners can enter into joint venture agreements and incorporate companies in which
citizen(s) are major shareholders and are able to acquire granted right of occupancy which
enables them to use the acquired land for the purposes of the company business.[10]

Use of Village Land by Foreigners

Section 4 in the Village Land Act sets out the procedure of transferring village land into general
land. In this case, the village land can be transferred into general land by the President providing
that the transfer is in the public interest as per section 4(1) of the Village Land Act, 1999. The
same section states that the President can direct the Minister to carry out this procedure. Section
4 (2) states that “public interest shall include investments, of national interest”. Therefore village
land can legally be transferred for investment purposes.

Persons who wish to occupy and use village land for various purposes can apply for the right to
use the land to the Village Council which may grant the non-citizen the right to use and occupy
land for a limited period of time and under stipulated conditions as indicated by the Village
Council and the Village Land Act. In order to get access to village land the investor is required to
contact the district where the land is situated. At this stage the district evaluates the proposed
project and directs the investor to the village/villages concerned.[11]

Another part of the transfer process is that the Minster shall publish a notice in the Gazette about
the proposed transfer which shall be sent to the Village Council concerned as per Village Land
Act section 4 (3). The same section states that the notice shall specify the location of the land
that is proposed to be transferred, the extent and boundaries of this land and briefly provide the
reasons for the proposal. The notice shall also specify the date of the proposed transfer, which
cannot be less than 90 days from the date of publication. This notice can provide useful
information if it is made clear that the purpose of the notice is to provide information about the
transfer proposed. However, it has been found that many villagers feel that they have no say in
the process of transferring land and that the decision has already been made at a higher level.
Therefore there is a risk that the notice will be understood by the villagers as an order from
above to approve the transfer if the notice is not clear.[12]

In addition to the mentioned notice in the Gazette, information on the transfer can also be
provided by the central government and by the investor as stated in Village Land Act section 4
(7). The Commissioner for Lands or an authorized officer has the duty to explain the reasons for
the proposed transfer and answer questions during a Village Assembly or a Village Council
meeting. A foreign investor can also, after invitation, attend such a meeting to answer questions
from the Assembly or the Council.[13]

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 LECTURE EIGHTEEN (CONVEYANCES)

LECTURE EIGHTEEN (CONVEYANCES)

 CONVEYANCES

Conveyancing is the transfer of legal title or interest of property from one person to another, or
the granting of an encumbrance (impediments, obstacles) such as a mortgage, lien or lease.[1] A
system of conveyancing is usually designed to ensure that the buyer secures title to the land
together with all the rights that run with the land, and is notified of any restrictions in advance of
purchase. Many jurisdictions have adopted a system of land registration to facilitate
conveyancing and encourage reliance on public records and assure purchasers of land that they
are taking good title. From a pedagogical viewpoint, conveyancing involves business processes
traditionally designed to transfer a landed property from one owner to another.[2]Conveyancing
involves business processes traditionally designed to transfer a landed property from one owner
to another.

'Transfer of Property' means an act by which a living person conveys property, in present or in
future, to one or more other living persons, or to himself, and one or more other living persons:
and 'to transfer property' is to perform such act.[3] 'Living person' includes a company or
association or body of individuals, whether incorporated or not, but both in herein contained
shall affect any law for the time being in force relating to transfer of property to or by
companies, associations or besides of individuals.

Sale is one of the forms of land transfer, others include; will, lease, mortgage etc. And for
effective transfer of land, there must be a written contract that has been signed with the
participation of a notary and the registration in the Land Register. This written contract may be
drafted privately, i.e. without the intervention of a notary public. It is then commonly called a
“pre contract”. The final contract must be a notary act, so that the transfer can be registered.[4]

How Real Property Ownership is Transferred[5]

Property is a commodity, meaning it often changes hands from one individual to another. An
individual can acquire an interest in real property through:

1. a written document, such as a deed, lease, mortgage or other conveyance;

2. inheritance;
3. the operation of law (such as a property transfer following abandonment by the owner or
a transfer ordered by a court following a lawsuit); or
4. Adverse possession or prescription, that is, through “squatter’s rights.”

Transfer by Inheritance

When someone dies owning or holding some interest in real property, the deceased owner’s
interest must be transferred to another person or entity. That other individual may be a
beneficiary named by the deceased owner’s will or the person entitled by law to the property
when there is no will. This other individual also may acquire the property of the deceased
because he or she owns the remainder interest after a life estate, or because of a right of
survivorship.[6]

Transfer by Operation of Law

Ownership in real property may be transferred without a formal conveyance procedure. Such a
transfer may occur as the result of a judgment in a lawsuit. For example, a divorce decree, or the
court order in dissolution of marriage that approves a separation agreement, may award the
family home to the wife (or husband), and the decree, or order, may have an effect similar to a
deed.[7]

Transfer by Adverse Possession or Prescription

Sometimes the title to real property or an interest in real property is transferred because the
original owner neglects his or her rights. For example, an individual may acquire title to another
person’s real property by adverse possession (which, in lay terms, is something like “squatter’s
rights”). Adverse possession is using real property without permission continuously for 12 years,
provided that the use is obvious and exclusive against others and that the original landowner
does nothing significant to assert his or her rights as owner.[8]

PURCHASE AND SALE OF REAL ESTATE

The most common real estate transaction is the purchase or sale of a home. This section therefore
will outline some of the matters to be considered in purchasing or selling a property, including a
contract of sale, financing, title examination and closing.

Contract of Sale

The contract of sale also known as Empitio Venditio, is one of the most commonly performed
legal acts in ancient and modern times. The contract of sale forms part of the so called contractus
consensus, as classified by Roman law. Various rights and obligations arise from a contract of
sale including the seller’s duty to warrant the buyer against latent defects.[9]

Most transfers of land are preceded by contracts of sale. These normally contemplate escrows
(delivery of deed to a third person to be held until purchase price paid) before closing (exchange
of purchase price and deed). To be enforceable, a land contract must be memorialized in a
writing that is signed by the party to be charged.[10] The essential terms of the sale must be
contained in the written contract, namely a description of the parties, the property and the
purchase price. If any one of these material terms are absent, the agreement of sale will not be
enforceable, unless other circumstances are considered.[11]

Both parties are bound by the contract when the seller accepts it. If the buyer defaults, the seller
may hold the buyer liable for the difference between the contract price and the price at which the
seller is eventually able to sell the property (assuming it is lower than the original contract price).
If the seller defaults, the buyer may compel the seller to specifically perform the contract, or may
sue for damages. In either case, liability can have serious consequences. A buyer should not sign
an offer until he or she has read all of it and understands all of the terms. Similarly, a seller
should not accept a contract (the offer to purchase) until he or she has read all of it and
understands all of the terms. If either party has any questions, an attorney should be consulted
before any paperwork is signed.[12]

Description of the property

The property must be properly described so that no confusion can arise as to which property is
being sold. If there is any ambiguity or uncertainty, the sale will be void and non-enforceable.
However, the courts do not insist on a perfect description. What is important is whether the
property can be identified from the written description.[13]

Sole risk

Under common law, once the agreement of sale is concluded, the risk of damage passes to the
purchaser, even if the seller remains in occupation or possession of the house. So for example, if
the house is destroyed by fire before transfer, the purchaser will bear the loss and the seller may
force purchaser to pay the full price despite the fire-damage, unless the damage is caused by the
seller's negligence. The common law position can be changed by agreement and most
agreements contain a clause stipulating that risk passes on possession or on transfer. Thus the
purchaser should make sure the home is properly insured when he becomes liable.[14]
Voetstoots' clause

Most agreements of sale of immovable property contain a voetstoots clause freeing the Seller
from any liability for patent and/or latent defects, which the Buyer may later find when taking
occupation of the property. The clause means that the property is sold "as is" or "as it stands".
Accordingly the purchaser purchases the property with all the patent and latent defects. A
voetstoots clause has been defined as: - “a clause that stipulates that the seller is not to be held
responsible for diseases or defects and goods are sold ’as it stands’ or ’with all its faults’”. The
effect of such a clause is that “the seller does not take the risk of the presence of any diseases or
defects, but is liable for misrepresentations of any kind”.

In common law, the seller is not liable for patent defects. Patent defects are defects, which can
be seen on a reasonably careful inspection of the property. Thus, for example, if a house is
purchased and there are broken windows, the purchaser will be liable to fix those. In common
law, the position is different with latent defects. Where there is some defect in the house which
cannot be seen on a reasonably careful inspection, the seller is generally liable for those defects.
He may be called upon to refund part of the purchase price or the sale may be cancelled,
depending on the nature of the defect. Examples of latent defects include a leaking roof and
sinking ground.[15]

The case of Van der Merwe vs Meads 1991 (2) SA 1(A) is the leading authority in respect of
the "voetstoots" clause. The case sets out the main criteria when analyzing the Seller's liability in
respect of property sold voetstoots and states that a Seller is deprived of protection under the said
clause in the following circumstances:-

a) Where the Seller was aware of the defects in the property when entering into the contract;
and

b) b) The Seller (dolo malo) intentionally conceals the existence of the defect with the
intention of defrauding the Purchaser.

Clearly, the test in Van Der Merwe vs Meads placed a difficult burden of proof on the Purchaser
as the Purchaser would have to prove that the Seller had knowledge of the defect together with
the intention to defraud the Purchaser to succeed in depriving the Seller of his defence under the
voetstoots clause.[16]

A voetstoots clause excludes the seller's liability for latent defects, unless the buyer can prove
that the seller knew of the defects at the time of or before the sale. Note that if a voetstoots clause
is included in the agreement, the purchaser should be given the opportunity to inspect the
property and accordingly acknowledge acceptance of the condition thereof. If the seller knew of
the latent defect, even if there is a 'voetstoots' clause in the contract, he will remain liable. The
onus of proving that the seller knew of the defect lies on the purchaser.[17]
The Duty to Disclose Property Defects[18]

This question often comes up with clients: Are we required to disclose latent defects in the
property we are selling?

A latent defect is a defect that is not obvious to the naked eye and generally, the doctrine of
Caveat Emptor (Buyer Beware) applies, however, it is not without qualifications.

When assessing whether or not to disclose a vendor or purchaser has to consider the following
fact scenarios. Does the vendor know of the latent defect? Does the vendor try to conceal the
latent defect? Can the latent defect render the property inhabitable or create danger? Did the
purchaser conduct an independent inspection? What were the terms of the agreement of purchase
and sale? Below we assess some of the general fact scenerios and whether the vendor would be
liable to the purchaser in those general instances.

1) The Vendor has No Knowledge

Vendor is not liable to the purchaser for latent defects discovered in the property after closing.

2) The Vendor has Knowledge

Again, the vendor is not liable to the purchaser for latent defects discovered in the property after
closing.

3) The Vendor has Knowledge and the Property is potentially dangerous and/or hazardous

Here the Vendor would be liable to the Purchaser. The courts have held that not disclosing a
potential danger or hazard is the same as fraud.

4) The Vendor has Knowledge and Actively Conceals the Defect

Oh the stories lawyers hear about active concealment. In one case, the purchasers went to do
their final inspection of the property and in doing so asked the vendors to go to the basement.
The vendors claimed that their child was in the basement and was extremely sick. Turns out, the
basement was flooded! Active concealment of a latent defect is considered fraud and the vendor
will be held liable for damages.

5) Other considerations

Another qualification to the above scenarios is whether a purchaser either conducted an

inspection by an inspector. If a purchaser hires an inspector and then later discovers that the
inspection did not reveal the latent defect that could have been discovered by the inspector, the
purchaser will only have recourse against the inspector, even if the vendor actively concealed the
defect and even if the property is potentially hazardous.
Further, the courts will always look at the agreement of purchase and sale to see whether a
vendor has made any express representations or warranties with respect to the quality or fitness
of the property. If a vendor does make misrepresentations or false warranties, a purchaser will
almost always have recourse against the vendor. The law in this area of real estate is in constant
flux and every fact scenario can produce a different outcome and therefore it is important to
consult a real estate lawyer in order to advise on a proper course of action.

Breach

Should the purchaser fail to fulfill any of the conditions set out in the sale agreement, the seller
has the right to claim the immediate payment of the purchase price, or to cancel the sale and
retain any payment made by way of a deposit. The seller also has the legal right to sue the
purchaser for breach of contract. The remedy available to a purchaser for a latent defect is the
cancellation of the contract in terms of the doctrine of breach of the contract and an award of
damages. Consequently once it has been established that the seller was a dealer in the goods sold,
an implied warranty that the goods were free of any defect kicks in and the purchaser is entitled
to invoke the actio empti which allows a purchaser to either cancel the agreement and/or to claim
damages.[19]

Doctrine of Part Performance

Part-Performance doctrine is an equitable principle that allows a court to recognize and enforce
an oral contract despite its legal deficiencies. It provides a way around the statutory bar to the
enforcement of an oral contract. By applying the part performance doctrine, a party can establish
the existence of a contract despite the lack of any written evidence. Generally, without written
evidence a contract does not satisfy the formal requirements set by legislatures.

The following theories support the doctrine of part performance

a) Evidentiary Theory

Courts state that if acts done by a party can be explained only by reference to an agreement,
these acts unequivocally establish the existence of an oral contract.
b) Hardship or Estoppel Theory

If acts done by a party in reliance on the contract would result in hardship to such an extent that
it would be a fraud on that party were the contract not specifically enforced, the other party will
be estopped.

For the Acts of Part Performance to be justified the following should be proven;

i. Possession of the land by the purchaser;

ii. Making of substantial improvements; and/or

iii. Payment of all or part of the purchase price by the purchaser.

Doctrine of Equitable Conversion

Under the doctrine of equitable conversion, once a contract is signed and each party is entitled to
specific performance, equity regards the purchaser as the owner of the real property. The seller’s
interest, which consists of the right to the proceeds of sale, is considered to be personal property.
The bare legal title that remains in the seller is considered to be held in trust for the purchaser as
security for the debt owed the seller. But note that possession follows the legal title; so even
though the buyer is regarded as owning the property, the seller is entitled to possession until the
closing.

Equitable conversion was defined in the early English case of Fletcher v. Ashburner 1 Brown
Ch. 497, 1 Lead. Cas. Eq. 4th Am. Ed. 1118 (1784). as;

"That change in the nature of property by which, for certain purposes, real estate is considered
as personal and personal estate as real, and transmissible and descendible as such."

Equitable conversion is a doctrine of the law of real property under which a purchaser of real
property becomes the equitable owner of title to the property at the time he/she signs
a contract binding him/her to purchase the land at a later date. The seller retains legal title of the
property prior to the date of conveyance, but this land interest is considered personal property (a
right to the payment of money, rather than a right to the property. The risk of loss is then
transferred to the buyer – if a house on the property burns down after the contract has been
signed, but before the deed is conveyed, the buyer will nevertheless have to pay the agreed-upon
purchase price for the land. Such issues can and should be avoided by parties by stipulating in
the contract who will bear the loss in such occurrences. The above rule varies by jurisdiction, but
is the general rule.[20]
If the property is destroyed (without fault of either party) before the date set for closing, the
majority rule is that, because the buyer is deemed the owner of the property, the risk of loss is on
the buyer. Thus, the buyer must pay the contract price despite a loss due to fire or other casualty,
unless the contract provides otherwise. Some states, however, have adopted the Uniform Vendor
and Purchaser Risk Act, which places the risk on the seller unless the buyer has either legal title
or possession of the property at the time of the loss.[21]

Passage of Title on Death[22]

The doctrine of equitable conversion also affects the passage of title when a party to a contract of
sale dies before the contract has been completed. In general, it holds that a deceased seller’s
interest passes as personal property and a deceased buyer’s interest as real property.

1. 1. Death of Seller

If the seller dies, the “bare” legal title passes to the takers of his real property, but they must give
up the title to the buyer when the contract closes. When the purchase price is paid, the money
passes as personal property to those who take the seller’s personal property. Note that if the
property is specifically devised, the specific devisee may take the proceeds of the sale.

1. 2. Death of Buyer

If the buyer dies, the takers of his real property can demand a conveyance of the land at the
closing of the contract. Moreover, under the traditional common law rule, they are entitled to
exoneration out of the personal property estate. Thus, the takers of his personal property will
have to pay the purchase price out of their share of the buyer’s estate. However, a majority of
states have enacted statutes abolishing the doctrine of exoneration, and in those states the takers
of the real property will take it subject to the vendor’s lien for the purchase price. In these states,
as a practical matter, the takers of the real property will have to pay the price unless the testator
specifically provided to the contrary.[23]

THE RULE IN WHEELDON V BURROWS

When a landowner sells off part of his land and retains part, the conveyance will impliedly grant
all the continuous and apparent easements over the retained land necessary for the reasonable
enjoyment of the land sold. There will be no retained reservation of easements over the land sold
for the benefit of the retained land.[24]

Wheeldon v Burrows (1879) LR 12 Ch D 31 is an English land law case on the implying

of grant easements. The case established one of the three current methods by which an easement
can be acquired by implied grant.

Facts

Mr. Allen owned a piece of land and a workshop in Derby, which had windows overlooking and
receiving light from the first piece of land. He sold the workshop to Mr. Burrows and the piece
of land to Mr. Wheeldon. Mr. Wheeldon's widow (Mrs. Wheeldon, the plaintiff) built on the
piece of land, and it obstructed the windows of Mr. Burrows' workshop. In response, Mr.
Burrows dismantled Mrs. Wheeldon's construction, asserting an easement over the light passing
through Wheeldon's lot. Mrs. Wheeldon brought an action in trespass.

Judgement

Thesiger LJ held that because the seller had not reserved the right of access of light to the
windows, no such right passed to the purchaser of the workshop. So the buyer of the land could
obstruct the workshop windows with building. He said the following.

“ We have had a considerable number of cases cited to us, and out of them I think that two
propositions may be stated as what I may call the general rule governing cases of this kind.
The first of these rules is that, on the grant by the owner of a tenement of part of that tenement
as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent
easements (by which of course I mean quasi easements), or, in other words, all those
easements which are necessary to the reasonable enjoyment of the property granted, and
which have been and are at the time of the grant used by the owners of the entirety for the
benefit of the part granted. The second proposition is that, if the grantor intends to reserve any
right over the tenement granted it is his duty to reserve it expressly in the grant....

Both of the general rules which I have mentioned are founded upon a maxim which is as well
established by authority as it is consistent with common sense, viz., that a grantor shall not
derogate from his grant....

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LECTURE NINETEEN(THE COMMON LAW
DOCTRINE OF ESTOPPEL BY ACQUIESCENCE)THE
COMMON LAW DOCTRINE OF ESTOPPEL BY
ACQUIESCENCE
THE COMMON LAW DOCTRINE OF ESTOPPEL BY ACQUIESCENCE

In law, acquiescence occurs when a person knowingly stands by without raising any objection to
the infringement of their rights, whiles someone else unknowingly and without malice
aforethought makes a claim on their rights. Consequently, the person whose rights are infringed
loses the ability to make a claim against the infringer, or succeed in an injunction suit due to the
infringer's conduct. The term is most generally a kind of "permission" given by silence or
passiveness.[1]

An early creation of the courts of equity was the granting of redress in instances where one party
has suffered loss as the result of another party merely standing by whiles that loss took place, or
actively encouraging the loss. This right of redress received the authority of the House of Lords
in the decision handed down in Ramsden v Dyson (1866) LR 1 HL 129. Although the decision
is sometimes regarded as the 'modern starting point of the law of equitable estoppel, there are
clear examples of equity allowing redress in circumstances of acquiescence and, or,
encouragement, dating back to the later years of the seventeenth century.[2]

The decision in Ramsden v Dyson is now generally regarded as the foundation statement of the
equitable principle. It is significant in that it provided the maximum of precedent authority to the
principle and it contains two well reasoned, if not unshakable, statements of the principle which
are frequently cited by the present day courts and used as a foundation stone for judgments. But
apart from this the decision is not without its problems as a precedent. It was not, itself, an
application of the principle because their Lordships there found against the raising of the
necessary equity. Also the decision contained a short but highly significant dissenting speech by
Lord Kings down. This contains a statement of the principle which is presently regarded at least
by some, as a more accurate statement of the law than statements of the principle contained in
the majority speeches.[3]

Fundamental to the successful pleading of the Ramsden v Dyson principle, as indeed with any
other equitable principle, was the raising of an equity in favour of the representee. Unless, the
representee could show such an equity in his favour the legal rights of the representor prevailed.
In order to raise the requisite equity in his favour the representee had to overcome the following
assumptions. Firstly equity would not assist a mere gratuitous intervener. Any party who entered
into the land of another and even improved the property of another, could not, simply by reason
of that conduct, lay claim to a proprietary right or acquire an interest in that property. The legal
rights of the owner prevailed.[4]

Secondly, in order to enable such a gratuitous intervener to relinquish that garb and be entitled to
call equity into aid so as to enable him to obtain an interest in the property, and so prevent the
legal owner from exercising his prior legal rights, he would have to show conduct on the part of
the legal owner which was so unconscionable as to amount to what would be regarded as
fraud.[5] The fraud required in this particular instance was, of course, equitable fraud, and as
such, was deliberately left open ended and was not clearly specified in the early decisions.[6]

Acquiescence as a sufficient conduct on the part of the representor to secure the equity was
confirmed in Stiles v Cowper (1748) 3 Atk. 692; 26 E.R. 1198, where a landlord had continued
to receive rent and allow building on land which was subject to an invalid lease, and later
attempted to assert his legal title.[7]

TWO LIMBS OF PROPRIETARY ESTOPPEL

a) The Mistake Limb

The classic authority on proprietary estoppel is the decision of the House of Lords in Ramsden v
Dyson. Two limbs of proprietary estoppel emerge from this case. The first originates in the
speech of Lord Cranworth, and is generally described as the "mistake limb". The second limb,
based on expectation, derives from the speech of Lord Kings down (who dissented only on the
facts).[8]

The case of Ramsden v Dyson[i] concerned a tenant who had expended money on improving the
land he was leasing, allegedly in the belief that he was entitled to demand the grant of a long
lease. The general principle of the law, encapsulated in the Latin maxim "superficies solo cedit",
is that the owner of the land owns anything which is built on, or attached to, the land. In other
words, any improvements to land accrue to the benefit of the owner of that land. It is to this
general principle that the mistake limb of proprietary estoppel provides a limited exception.

Speaking for the majority of the House of Lords Lord Cranworth set out the relevant head of
equity which he regarded as necessary for the determination of Ramsden v Dyson as follows:

! If a stranger begins to build on my land supposing it to be his own, and I, perceiving his
mistake, abstain from setting him right, and leave him to persevere in his error, a court of
equity will not allow me afterwards to assert my title to the land on which he has expended
money on the supposition that the land was his own. It considers that, when I saw the mistake
into which he had fallen, it was my duty to be active and to state my adverse title; and that it
would be dishonest in me to remain willfully passive on such an occasion, in order afterwards
to profit by the mistake which I might have prevented. But it will be observed that to raise such
an equity two things are required, first, that the person expending the money supposes himself
to be building on his own land; and secondly, that the real owner at the time of the
expenditure knows that the land belongs to him and not to the person expending the money in
the belief that he is the owner. For if a stranger build on my land knowing it to be mine, there
is no principle of equity which will prevent my claiming the 1 and with benefit of a 11 the
expenditure made on it. There would be nothing in my conduct, active or passive, making it
inequitable in me to assert my legal rights

The trigger for this mistake limb of proprietary estoppel is the dishonesty of the landowner in
remaining "wilfully passive on such an occasion, in order afterwards to profit by the mistake
which [he] might have prevented.[9]

b) The Expectation Limb

In Ramsden, Lord Kingsdown put forward an alternative formulation of the doctrine of

proprietary estoppel. His formulation is regarded as giving rise to the "expectation limb" of
proprietary estoppel. Lord Kingsdown stated that:

If a man, under a verbal agreement with a landlord for a certain interest in land, or, what
amounts to the same thing, under an expectation, created or encouraged by the landlord,
that he shall have a certain interest, takes possession of such land, with the consent of the
landlord, and upon the faith of such promise or expectation, with the knowledge of the
landlord, and without objection by him, lays out money upon the land, a Court of equity
will compel the landlord to give effect to such promise or expectation.

This principle is that an estoppel will arise if (a) a landowner has created or encouraged an
expectation in the claimant that she is, or will become, entitled to an interest in certain land; and
(b) the claimant has acted to her detriment on the basis of that expectation.[10]

A convenient illustration of this wider principle is provided by the modern English case of
Inwards v Baker (1965) 2 QB 29. In that case, a son wished to build a home for himself.
However, the site which he was considering was beyond his means. His father suggested to him:
"Why not put the bungalow on my land and make the bungalow a little bigger"? On the basis of
this, the son proceeded to build on his father's land. Some years later, the father died, leaving his
property under an old will to other beneficiaries. Ultimately, these successors sought to eject the
son. The Court of Appeal held that, because the son had been led to believe that the bungalow
would be his home for life, the father and his successors in title would be estopped from evicting
the son. The son was therefore granted an indefinite license to occupy the land.[11]
It is interesting to note that the expectation limb involves a principle which is more wide-ranging
than that underlying Lord Cranworth's mistake limb. Although there is a tendency in the context
of the expectation limb of proprietary estoppel to speak in terms of detrimental reliance on a
"representation", it is impossible to deny that in many cases a "representation" will be
indistinguishable from a promise. This means that the doctrine of proprietary estoppel is
trespassing on the domain of the law of contract by allowing certain legal consequences to flow
from a promise which is unsupported by consideration.[12]

In addition, the expectation limb of proprietary estoppel appears to involve a far more
interventionist approach on the part of Equity. In the case of estoppel by mistake, Equity is
coming to the aid of a person who may well have been taking reasonable care to protect her own
interests. A person who makes a mistake is not consciously placing her trust in the hands of
another. However, in relation to the expectation limb of estoppel, matters are different. Persons
who rely on what they know to be a non-binding promise could, on a harsh view of the law, be
condemned to their fate on the basis that they should have known the possible consequences of
their actions.[13]

The Probanda

Although both limbs of proprietary estoppel appear to have been recognised by the House of
Lords in Ramsden v Dyson, at an early stage in the years following that landmark decision it
became common to regard Lord Cranworth's "mistake" formulation as an exhaustive statement
of the doctrine.[14] This tendency is attributable to the influence of Willmott v Barber ((1880)
L.R. 15 Ch. D. 96). In that case, Fry J restated the requirements for a claim based on proprietary
estoppel. Fry J laid out five propositions which had to be proven (the so-called five probanda) as
a prerequisite to success in a claim based on proprietary estoppel. The probanda are as follows:

(1) The claimant must have made a mistake as to her legal rights.

(2) The claimant must have expended money or done some other act (not necessarily upon the
defendant's land) on the basis of her mistaken belief.

(3) The landowner must have been aware of his own rights.

(4) The landowner must have been aware of the claimant's mistaken belief.

(5) The landowner must have encouraged the expenditure or other act of the claimant, either
directly or by abstaining from asserting his rights.

The first, third and fourth of the probanda emphasise the need for the claimant to be mistaken
about her legal rights and for the landowner to be aware of his own rights and of the claimant's
mistake. Therefore, if taken seriously, the probanda allow no room for the expectation limb. This
is because the expectation limb applies to a claimant who, although not mistaken as to her rights,
acts to her detriment on the basis of an expectation created by the defendant. Unfortunately, Fry J
(who was dealing with a case where both parties were mistaken as to their legal rights) did not
address the possibility that the expectation limb of proprietary estoppel could exist alongside the
mistake limb which he had formulated.[15]

In recent years, the English courts have moved away from a reliance on the probanda. The
decisive case was Taylor Fashions v Liverpool Victoria Trustees Co Ltd [1981] 2 WLR 576
Chancery Division. In that case, Oliver J undertook a detailed analysis of the case law and
concluded that a failure to satisfy all of the probanda was not fatal to a claim of proprietary
estoppel. In a famous passage, Oliver J explained the position as follows:

[T]he application of the Ramsden v Dyson, LR 1 HL 129 principle ... requires a very much
broader approach which is directed rather at ascertaining whether, in particular individual
circumstances, it would be unconscionable for a party to be permitted to deny that which,
knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment
than to inquiring whether the circumstances can be fitted within the confines of some
preconceived formula serving as a universal yardstick for every form of unconscionable
behaviour.

According to Oliver J, it was necessary to apply "the broad test of whether in the circumstances
the conduct complained of is unconscionable." The central emphasis is therefore on the notion of
unconscionability. The issues addressed by the probanda are simply factors which, in appropriate
cases, should be taken into account in the overall inquiry. Oliver J's views have subsequently
been approved by the Court of Appeal and by the Privy Council.[16]

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 LECTURE TWENTY (ADVERSE POSSESSION)

LECTURE TWENTY (ADVERSE POSSESSION)

LECTURE TWENTY

ADVERSE POSSESSION

Introduction

Adverse possession” is a legal doctrine that allows a person to acquire legal ownership of
property that he treats as his own, if he does so for a long enough period of time, even though the
property is not his own. In other words, a person who uses another person’s property, without
permission, for a long enough period of time, can acquire legal ownership of that property.[1]
The claim to rights and interests in relation to property on the basis of possession has been
recognized in all legal systems. Uninterrupted and uncontested possession for a specified period,
hostile to the rights and interests of true owner, is considered to be one of the legally recognized
modes of acquisition of ownership.[2]

Adverse possession is the bar against the pursuit of stale (or long dormant) claims through the
legal system and is an important concept assisting in the resolution of disputes and ambiguities
associated with interests in real property law. It is well recognised that land and other property
interests can be the subject of competing meritorious claims. The difficulty lies with
distinguishing between the just and the unjust claims and also determining when a just claim
may become unjust. Adverse possession permits the resolution of such disputes and provides
certainty of title and security of tenure in the interest of public peace and order.[3]

Adverse possession is a principle of law by which someone who possesses the property of
another person for an extended period of time may be able to claim legal title to that land,
provided he fulfills certain other criteria. It is a mechanism which has the effect of allowing a
trespasser to acquire title to land and to displace the rights of the ‘paper-owner’. It is based on
the principle of limitation of actions whereby an action in the courts becomes ‘statute-barred’
after a certain period of time. The period of limitation for possession of immovable property or
any interest based on title is twelve years. If a trespasser to a property remains in possession of
that piece of property for a continuous period of twelve years, then by the operation of the law of
limitation, the real owner’s right to that property will be extinguished and the title will pass on to
the trespasser. The time period starts to operate from the moment the trespasser takes adverse
possession of the true owner’s property.[4]

As observed by the Supreme Court of India in the case of Karnataka Board of Wakf v GOI(
2004) 10 SCC 779, in the eye of law, an owner would be deemed to be in possession of a
property so long as there is no intrusion. Non-use of the property by the owner even for a long
time won’t affect his title. But the position will be altered when another person takes possession
of the property and asserts rights over it and the person having title omits or neglects to take legal
action against such person for years together. “The process of acquisition of title by adverse
possession springs into action essentially by default or inaction of the owner.”[5]

The law on adverse possession is contained in the law of limitation Act, Cap 89; paragraph 22 of
Part I to the First Schedule to the Law of Limitation Act prescribes a limitation of 12 years for a
suit to recover land.

Grounds for adverse possession

The rationale for adverse possession rests broadly on the considerations that title to land should
not long be in doubt, the society will benefit from someone making use of land the owner leaves
idle and that that persons who come to regard the occupant as owner may be protected. The
maxim that law and equity does not help those who sleep over their rights is raised in support of
prescription of title by adverse possession. In other words, the original title holder who neglected
to enforce his rights over the land cannot be permitted to re-enter the land after a long passage of
time. A situation lasting for a long period creates certain expectations and it would be unjust to
disappoint those who trust on them. The principle of adverse possession does not operate as
simply as it sounds. In fact, there are many requirements to be fulfilled by the squatter in order to
establish his title to the property.[6]

The ‘great’ purpose of adverse possession as described by a jurist Henry W. Ballantine in his
article “Title by Adverse Possession,” “is automatically to quiet all titles which are openly and
consistently asserted, to provide proof of meritorious titles and correct errors in conveyancing”.
Another justification for the law of adverse possession is captured in the quote that possession is
“nine points of the law”. The moral justification of the law of adverse possession was graphically
stated by Justice O.W. Holmes who said

“man like a tree in the cleft of a rock, gradually shapes his roots to the surroundings, and
when the roots have grown to a certain size, can’t be displaced without cutting at his life, ”.

There are four required elements for an adverse possession to be effective:[7]

1) The possessor must have actually entered the property and must have exclusive possession
of the property;

2) The possession must be “open and notorious”;

3) The possession must be adverse to the rightful owner and under a claim of right; and

4) The possession must be “continuous” for the statutory period.

1. Actual entry and Exclusive Possession:

For this element to be satisfied, the adverse possessor must enter and reside on, or use the land
for the entire duration of the adverse possession period. In addition, the possessor must occupy
the land to the exclusion of the true owner. Possession that is shared with the true owner is not
“adverse” to the true owner, and is thus not adverse possession. The theory behind this element is
that the “true” owner of the property cannot be expected to bring an action against a possessor
who has not excluded him from the property.
 2. Open and Notorious Possession:

For the adverse possession to be effective, it must be done in a manner that is visible to
everyone. In other words, the possession must be done in such a manner that the actual owner
would notice the possession if he or she bothered to look. If the adverse possessor abandons the
land every time the true owner comes to check on the land, then the possession will not be
considered to be adverse at all, because it will not be open and notorious.

3. Hostile and Under a Claim of Right

This element requires that the possessor must enter and possess the property without the owner’s
consent and that the possessor must possess the property with the intent of remaining on the
property permanently. It does not require that the possessor actually claim that he or she has a
legal right to possess the property. It is enough that the possessor intends to remain on the
property in perpetuity. The key ramifications of this rule are that:

a) A tenant cannot claim adverse possession against his or her landlord because, by definition,
the lease allows that tenant to live on the premises. Therefore, the possession is not hostile. The
same is true for co-tenants. Since each co-tenant has a right to possess the entire property,
possession by a single tenant is not considered to be hostile.

b) An occupier cannot adversely possess property if he or she has permission from the "true
owner" to occupy the property.

c) An adverse possession is ineffective if the possessor verbally (or otherwise) concedes the fact
that the owner is the “real” owner of the property and that he or she is just the possessor. In such
a case, the possession is not considered to be hostile. For example:

4. Continuous and Uninterrupted Possession:

The last element of an adverse possession is that the possessor must have uninterrupted
possession of the land for the duration of the statutory period. Of course, this does not mean that
the possessor must be on the land for 24 hours a day, seven days a week, and 365 days a year.
Rather, this element requires that the possessor occupy the land to the degree and with the
amount of usage that the average owner would occupy the property. Of course, the degree of
possession that is considered to be continuous and uninterrupted will vary depending upon what
the property is typically used for. If the property is used as a permanent residence, then the
adverse possessor would have to live in the house as the average person would live in a
permanent residence. If the house is a vacation house, then its occasional use at sporadic times
during the year for the statutory period could be sufficient. If the adverse possessor intentionally
abandons the property for any period of time without the intent to return, the continuity of
adverse possession is lost and the adverse possession time period clock will re-start from the
beginning if he or she comes back and takes possession of the land again.[8]

Common Defenses to Adverse Possession[9]

While the following list is far from exhaustive, these defenses are very often brought in adverse
possession actions:

a) Permissive Use

If the actual owner has granted the claimant permission to use the property, the claim of
"adverse possession" cannot be deemed hostile and thus fails.

b) Public Lands

Government-owned land are exempted from adverse possession

c) Insufficient Acts

Although it is conceded that the claimant engaged in some use of the property, it is alleged that
these acts were not sufficient to amount to acts suggesting a claim of ownership.

d) Non-Exclusive Use

Although it is conceded that the claimant engaged in some use of the property, it is alleged that
others (usually the property owner) also used the property in a manner consistent with that of the
landowner.

e) Insufficient Time

Even if various elements of adverse possession were met, it is alleged that the adverse possession
did not last for the full statutory period, or that the adverse possession was interrupted by a
period of non-use.

References
James R. W. (1967), Some Problems on Leases and Licences, 1967 E.A. L. J. 246

James, R. W. (1971), Land Tenure and Policy in Tanzania, East African Literature Bureau,

Nairobi, 1971.

Fimbo, G. M. (1992) Eassays in Land Law, Tanzania, printed by the Dar es Salaam University

Press, 1992.

Riddal, J. G. (1983), An Introduction to Land Law, Third Edition, Butterworths, London, 1983.

MEGARRY’s Manual of the law of Real Property, SixthEdition, Stevens & Sons, London,

1982.

Kjekshus, H. (1977), Ecology, Control and Economic Development in East African

History, The Case of Tanganyika, 1850-1950, Heinemann, London 1977.

Corry, H., (1955), Report on Nyarubanja System in Bukoba, 1955. Reining, Priscilla C.,

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 LECTURE TWENTY ONE (CO-OWNERSHIP)

LECTURE TWENTY ONE (CO-OWNERSHIP)

CO-OWNERSHIP

Introduction

If one person owns land or property, he or she is the sole legal owner. If two or more people own
land or property they are co-owners. Where there is co-ownership of land, each legal owner
simultaneously enjoys the rights and responsibilities of property ownership. Co-ownership is the
holding of concurrent interests in the same property. It may be by way of joint tenancy or by
tenancy in common. At law, the preference was in favour of joint tenancy since this had feudal
and conveyance advantages. The rule was that if land was conveyed to two or more persons, a
joint tenancy of the legal estate was created unless either one of the unities was absent or words
of severance were employed.[1]Part vii of the Land Act of Tanzania offers an explanation
regarding co-occupancy and partition in sections 159 to 166.

Section 159 of the Act, offers the meaning of co-ownership which is similar to co-occupancy as;

(1) In this Act, co-occupancy means the occupation of land held for a right of occupancy or a
lease by two or more undivided shares and may be either joint occupancy or occupancy in
common.

(2) Where, subject to the provisions of this Act, two or more persons not forming an association
of persons under this Act or any other law which specifies the nature and content of the rights of
the persons forming that association occupy land together under a right specified by this section,
they may be either joint occupiers or occupiers in common.

There are three main ways to own real property jointly:

1. Joint Tenancy

2. Tenancy in Common

3. Tenancy by the Entirety

1. 1. JOINT TENANCY

It is a type of shared ownership of property, where each owner has an undivided interest in the
property. This type of ownership creates a right of survivorship, which means that when one
owner dies, the other owners absorb the deceased owner's interest. For example, if A and B own
a house as joint tenants, both have undivided ownership of the property, and the full right to
occupy and use all of it. If A dies, B gets sole ownership of the house, because of the right of
survivorship. It describes a situation where property, real or personal, is held in a manner which,
at law, the death of one joint owner results in the property passing to the surviving joint owner(s)
as opposed to passing to the estate of the deceased owner.[2]

Legally speaking, property held in “joint tenancy” must be owned by two or more persons in
equal proportion(s) (i.e., ½ - ½ or ⅓ - ⅓ - ⅓) with identical interests and an equal right to use the
whole of the property. Creation of a joint tenancy requires the existence at the time the property
is conveyed to the co owners and throughout their co ownership the presence of what are
described as the four unities.[3]

Two crucial features of a joint tenancy

a) Joint tenancy has to have four unities:

1. 1. Unity of Possession

Possession is common to all forms of company-ownership. It ensures that all joint tenants have
equal right to possession of the whole property and personal occupation too

1. Unity of Interest

All co-owners must have precisely the same interest in the property which implies joint rights
and joint obligations.

1. Unity of Title

Joint tenants must all derive their title from the same original source.

1. Unity of Time

The interests of the joint tenants must vest at the same time because if vesting takes place on
different dates, it does not allow for unity of time.

b) The right of survivorship (the jus accrescendi) when one joint tenant dies, the interest of
that joint tenant will pass to the remaining joint tenants.

1. 2. TENANCIES IN COMMON

Tenancy-in-common is a form of ownership whereby each tenant (i.e., owner) holds an

undivided interest in property. Unlike a joint tenancy or a tenancy by the entirety, the interest of
a tenant in common does not terminate upon his or her prior death (i.e. there is no right of
survivorship). Accordingly, tenants in common are those tenants who hold the same land
together by several and distinct titles, but by unity of possession, because none knows his own
severalty and therefore, they all occupy promiscuously. There are two essential differences
between joint tenancies and tenancies in common namely the right of survivorship and the four
unities. There is no principle of survivorship applicable to a tenancy in common. Although all
four unities can be present in a tenancy in common, only possession is a prerequisite. The share
of a tenant in common is distinct and independent from those of fellow co-owners. It follows that
if there is no right of survivorship on the death of a tenant in common and their share shall pass
under their will or according to the rules of intestacy. The shares of tenants in common do not
have to be equal but they are undivided.[4]

TENANCY BY THE ENTIRETY

A type of concurrent estate in real property held by a Husband and Wife whereby each owns the
undivided whole of the property, coupled with the Right of Survivorship, so that upon the death
of one, the survivor is entitled to the decedent's share. A Tenancy by the Entirety allows spouses
to own property together as a single legal entity. Under a tenancy by the entirety, creditors of an
individual spouse may not attach and sell the interest of a debtor spouse: only creditors of the
couple may attach and sell the interest in the property owned by tenancy by the entirety. Tenancy
by the entirety is a type of shared ownership of property recognized in most states, available only
to married couples. Much like in a joint tenancy, spouses who own property as tenants by the
entirety each own an undivided interest in the property, each has full rights to occupy and use it
and has a right of survivorship. Tenants by the entirety also cannot transfer their interest in the
property without the consent of the other spouse.[5]

Severance

The legal process of converting a joint tenancy arrangement into a tenancy in common is
referred to as “severance.” Severance is the process of separating off the share of a joint
occupier so that the concurrent interests will continue but the right of survivorship will no longer
apply. The parties will hold separate shares as occupiers in common. In joint occupancy there are
no words that imply separate un-divided shares in the property i.e. share and share alike, to be
divided amongst, between, equally, ½ to A and 1/3 to B etc.[6]

Determination of Co-ownership

In general joint occupancy and occupancy in common may be determined by partition or sale.

Partition
Where land is held by occupiers in common, it can be partitioned upon application by one or
more of the occupiers in common to the registrar. Such application must be made on the
prescribed form and has to be consented by all occupiers in common. However, where it is not
possible to get consent of the other co-occupiers an occupier in common can apply for partition.
Also where an order has been made for the sale of an undivided share in the land by court decree
any person in whose favour the order has been made can apply for partition. Upon such
application the applicant and the co-occupiers in common must be heard.[7]

In the case of OMARY MOHAMED v AWADH ABDALLAH 1992 (HC) [Reported]

The plaintiff and the defendant in this case are cousins. Their mothers are full sisters. They
jointly bought Plot No. 8, Bloc 46, Barabara ya 8, Ngamiani, Tanga Municipality and
constructed, jointly, a house on it. There had been an old house on the plot, which had belonged
to their mothers. They demolished the old house and constructed their present house in its place.
Construction commenced in 1974 and was completed in 1979.

On completion of construction of the new house the plaintiff and the defendant divided between
themselves rooms in the house and they each had equal portions in the house. They (the parties)
are now involved in a wrangle over the house. The plaintiff in his plaint prays that it be sold, at a
public auction, and the proceeds be divided equally between them, or, alternatively, any of the
parties purchase the share of the other by paying him shs. 750,000/= and any one party whose
share is purchased should vacate the house "the soonest."

Kyando J Held:

(i) In the circumstances of the case the defendant was not responsible for the conflict which arose
in relation to the occupation and use of the house;

(ii) The fairest method, for which the parties also agreed, was the division of the house in terms
of its value and to give the parties an option of purchasing the other's share.

Sale

Sale can arise in the following circumstances: - Where (i) the land cannot be partitioned, (ii)
partition will adversely affect the proper use of the land, (iii) the applicant for partition or one or
more occupiers in common require the land be sold. In any of such cases the land can be sold
and proceeds be divided.[8]

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  LECTURE TWENTY TWO (LEASES)

LECTURE TWENTY TWO (LEASES)

LEASES

Introduction

Lease is a contractual agreement by which one party conveys an estate in property to

another party, for a limited period, subject to various conditions, in exchange for
something of value, but still retains ownership.[1] A lease contract can involve any
property that is not illegal to own. Common lease contracts include agreements for
leasing real estate and apartments, manufacturing and farming equipment and
consumer goods such as automobiles, televisions, stereo and appliances.[2]

The distinguishing feature of a leasehold interest is the right to exclusive possession

and use of real property, for a fixed period of time, held by the lessee (or “tenant”).
The lessor (or “landlord”), having parted with this right to exclusive possession,
merely holds the basic title (the “reversion”) during the existence of the lease. Hotel
guests, licensees and employees may all be privileged to use a given space under
certain contractual conditions, but since none of these has an exclusive right to
possession, they are not governed by the laws regulating the relationship of landlord
and tenant.[3]

In Street v Mountford [1985] UKHL 4, Lord Templeman laid down three

necessary components which need to be present for a tenancy to exist. First, there
must be exclusive possession. In residential property this means that the landlord does
not provide either attendance or services. Secondly, there must be consideration in the
form of a premium or periodical payments. Thirdly, there must be a grant of the land
for a fixed or periodic term. There may be an express grant or one may be inferred
because the owner of the land accepts periodical payments from the occupier. If these
three features are present there will be a tenancy.

A lease is an oral or written agreement that creates and governs, by express or

implied terms, a landlord-tenant relationship. A lease has two characteristics, each of
which has its own set of rights and obligations: [4]
 1. a conveyance by the landlord to the tenant of an estate in real property
covering the premises leased (which creates “privity of estate” between the landlord
and tenant); and

2. a contract between the landlord and tenant which governs both the
landlord’s delivery and maintenance of the premises and the tenant’s possession of,
use of, and payments for the premises (which creates “privity of contract” between the
landlord and tenant).

ESSENTIALS OF A LEASE

According to the House of Lords case of Street v Mountford [1985] UKHL 4, a lease
is the grant of a right to the exclusive possession of land for a determinate term less
than that which the grantor himself has in the land. This definition identifies three
essential elements: The definition of a lease identifies three essentials of a lease
without which no lease or tenancy can be created. The three essentials are: exclusive
possession, determinate term, and defined premises.[5]

1. Exclusive Possession

Exclusive possession is an essential ingredient of a lease; without exclusive

possession there can be no lease. Exclusive possession is the right to use premises to
the exclusion of all others, including the landlord himself. If the occupier has no right
to exclusive possession of the premises then his right to use the premises cannot
amount to a lease, although it may be some lesser right, such as a licence or possibly
an easement. However, the fact that a person had been given exclusive possession is
not conclusive proof that he has a lease, for it is also possible to have a licence or
certain other rights in land, without exclusive possession.[6]

in Appah v Parncliffe Investments Ltd [1964] 1WLR 1064, in which the ‘landlord’
had reserved the right to come into the premises as and when he chose to empty
meters and change linen, the arrangement was held to be a licence, since the occupier
did not have exclusive possession.

2. Determinate Term
The period of a lease must be defined or capable of being defined i.e. the term must
have a beginning and a certain ending. In Harvey v. Pratt347, it was held that it is
enough that these requirements are satisfied before the lease takes effect even if they
are not agreed upon when the lease is executed.[7]

According to Street v Mountford [1985] AC 809, to create a lease the grant must be
for a certain period of time. This means there must be an identifiable start date and
there must be certainty as to the duration of the lease.

3. Defined Premises

No lease can be created unless the property is concretely defined or capable of being
defined. The rule is that no lease can be created where the frontiers of the property
cannot be identified. In Heptulla Brothers Ltd. v. Jambha Jeshangbhai Thakore (1957)
EA 358, the court explicitly stated that no tenancy could be created where the
premises intended to be let out could not be ascertained with sufficient precision.[8]

Apart from the three mentioned important elements of lease agreement, the following
ingredients are also important;

a) Parties – There must be a landlord and a tenant. Or you can have joint landlords
or joint tenants, but there has to be at least one of each.

b) Property – This has to be physical land. It can be up in the air, like a flat on the
fourth floor, but it has to be affixed to land. That’s why you can’t have a tenancy of a
boat (which is just a license).

c) Covenant of Quiet Enjoyment- This is a term which is implied into all tenancies
whether or not it is actually written down in the tenancy agreement.

d) Rent- Whilst Street v Mountford [1985] AC 809, refers to the requirement of

rent to create a tenancy this is not always strictly enforced: However, absence of rent
may be indicative that no tenancy was intended.

LEASES under the land Act, 1999 of Tanzania

Leases under the Land Act of Tanzania, 1999 are covered under part IX in sections 77
to sections 110. Section 77(1) of the Act provides this;

Unless otherwise provided for, the Provisions of sections 77 to 110 of this Part
shall apply to all leases, other than leases governed by customary law, made or
coming into effect after the coming into Application of this Part operation of this
Part, of this Act.

CLASSIFICATION OF LEASES

Leases can be classified as follows:

1. Reversionary lease: A lease which is supposed to commence at a future

date e.g. where a lease was made in 1996 to commence in 2026.

2. Periodic tenancy/lease: Where in any lease the term is not specified and
no provision is made for the giving of notice to determine the tenancy, the lease shall
be deemed to have created a periodic tenancy.[9] This is a tenancy from e.g. week to
week, month to month or year to year. It is perpetually renewable until terminated by
the issuance of a notice of determination of the tenancy.

3. Tenancy at will: it arises when a person allows another on his land in

the understanding that he may leave at any time or be asked to leave at any time it also
arise where a lesee of al land belonging to another authorizes a third party to occupy
the land at his will or pleasure . Tenancy at will, also known as estate at will, is a
tenancy agreement where a tenant occupies property with the consent of the owner but
without an agreement that specifies a definite rental period or the regular payment of
rent. A tenancy at will is a property tenure that can be terminated at any time by either
the tenant or the owner (landlord), and it exists without a contract or lease and is
unspecific in duration or the exchange of payment. A tenancy at will arrangement is
desirable to tenants and owners wishing to have the flexibility to change rental
situations easily and without breaking a contract.

4. Tenancy at Sufferance: An agreement in which a property renter is

permitted to live in a property after a lease term has expired, but before the landlord
demands the tenant vacates the property. If a tenancy at sufferance occurs, the original
lease conditions must be met, including the payment of any rents. Otherwise, the
tenant can be evicted at any time without notice. A tenancy at sufferance, also termed
"estate at sufferance" or "holdover tenancy", arises when a tenant who has a lawful
possession of a property (for example, a lease) holds over without the owner's
consent. The only difference between a tenant at sufferance and trespasser is that the
tenant entered into possession in a legal manner but has now overstayed his or her
welcome.[10]

LEASES AND THE INTERESE TERMINI DOCTRINE

Interesse Termini is a Latin term meaning, interest of term or end. It is a lessee’s right
of entry into a leased property. An Interesse terminus is also a lessee’s interest in real
property before taking possession. An interesse terminus is also referred to as an
interest. It gives the lessee a claim against any person who prevents the lessee from
entering or accepting delivery of the property.[11] In Byrd Cos. v. Birmingham
Trust Nat'l Bank, 482 So 2d 247 (Ala. 1985), it was held that when a leasehold
estate for a term for years to begin in future, it is created a present interest vests,
called an interesse termini, although not an interest in possession, until the lessee
enters into possession. Hence, interesse termini thus applies in two situations, where
the term stated in the lease has commenced but the lessee has not taken possession,
and where there is a lease to take effect in the future.

At common law, the rule was that a lessee had to enter into possession before he was
considered to have acquired an estate. Thus a lease was perfect upon entry. This
requirement was abolished by the English 1925 Law of Property Act. According to
the Land Act, 1999 and the Land Registration Act, if the commencement of the lease
is more than 5years such a lease must be registered as an encumbrance in the land out
of which it has been created.[12] Under this type of a lease the tenant acquires no
actual estate in the land until he has taken possession during the term of the lease. He
is just left with interest in the term (interesse termini).

CREATION OF LEASES

A lease may be made either by

(a) An express grant or

(b) An agreement for a lease

In an express grant, the lessor or lessee must agree on all the terms of the transaction,
there must be sufficient memorandum in writing or an act of part performance.

What constitutes sufficient part performance is dependent on the peculiar

circumstance of each case. In Rawlinson v Ames (1925) Ch 96 the Defendant and the
Plaintiff orally agreed to take a lease of a flat. The Plaintiff requested that some
alterations to be made to the flat and the Defendant made frequent visits to the flat
while the alteration was been made and suggested additional alterations which was
made by the Plaintiff. The Defendant subsequently repudiated the contract relying on
the absence of a written memorandum. It was held that the alterations made
constituted sufficient acts of part performance by the Plaintiff. A lease for more than 3
years is at law unenforceable unless it is evidenced in writing but in equity such a
lease could be treated as an agreement for a lease which is enforceable by an action
for specific performance.[13]

DOCTRINE OF WALSH V LONSDALE

Where a tenant takes possession of a land under an oral agreement for more than three
years, acquires an enforceable right to call for the execution of a deed in favour of the
tenant. As far as his rights and liabilities are concerned, he is held to in the same
position as if he had a deed of lease.[14]

In Walsh v Lonsdale (1882) 21 Ch.D 9 the Defendant agreed to grant the plaintiff a
lease of a mill for 7 years at an agreed rent. The lease was also to contain such
stipulation in an earlier lease at a fixed rent made payable yearly in advance. The
plaintiff was let in to possession and paid rent quarterly not in advance, for two years
and a half. The Defendant then demanded one year’s rent in advance and put in a
distress. The Plaintiff instituted proceedings for damages for illegal distress,
injunction and specific performance. It was held that the Plaintiff’s held an interest
similar to the position of a grantee of a lease and under the terms of a lease, failure to
pay a year’s rent in advance on demand would have earned a distress.

The doctrine of Walsh v Lonsdale (1882) was created, allowing equity to regard as
done that which ought to be done, or more simply, creating an equitable equivalent of
a formally defective but otherwise legal lease

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LECTURE TWENTY THREE

Introduction

The first thing to emphasise is that a lease agreement falls in the same category as
another contractual arrangement between parties and the general rules of contract will
apply. The statute provides for what would in any even be the basic minimum so that
the rights and obligations to a leasehold arrangement are such that you cannot dilute
them through your own agreement. You cannot take the basic minimums as spelt out
in the statute. You can only add and supplement but cannot derogate. Even where
parties fail to provide for those rights and obligations the statutory obligations and
rights will come into operation. The implied rights and obligations whatever is a right
to the tenant is an obligation on the landlord and vice versa.

A tenant having a leasehold grant is entitled to quiet possession of the premises so it is

incumbent on the landlord to ensure that the tenant has quiet enjoyment of the lease
premises as long as the tenant is making good on his obligations including paying
rent, he is entitled to peaceful occupation of the premises and that is an obligation on
the landlord. The sense of quiet enjoyment is that there should be no interference
from persons claiming there should be no disturbance.

The court in Keraira V. Vandyan 1953 Vol 1 WLR 672 held that, the landlord will
have breached this particular covenant if in an effort to get rid of the tenants he
removes windows, doors and disconnects electricity. In Jones and Lavington
(1903)1KB 253 the court held that the landlord could not incur any liability with
regard to this particular right where the culprit was not the landlord but the superior
landlord.

Implied obligations of the land lord (Rights of the Tenant) [1]

a) Quiet Enjoyment

The landlord is required to ensure that his tenant has peaceful or ‘quiet enjoyment’ of
the leased premises. The covenant has nothing to do with noise-free enjoyment of the
demised premises, but impliedly guarantees that the tenant shall be immune from the
exercise of adverse rights over the land. The essence of quite enjoyment is that there
should be no interruption from the landlord or persons claiming through him i.e.
assignees or legal representatives.
b) Non-derogation from the grant

Where the landlord has undertaken to grant the tenant a lease for a specific purpose,
he must not do acts inconsistent with that purpose which may render the leased land
unfit/materially less fit for the specific purpose i.e. using adjoining land or
neighboring land of which he is a proprietor or lessor in derogation from the applied
purpose.

Bowen LJ in Birmingham, Dudley and District Banking Co. v. Ross (1888) 38 Ch D

295 at 313 summed up this obligation succinctly when he stated:

‘…A grantor having given a thing with one hand is not to take away the means of
enjoying it with the other’.

In Aldin v Latimer Clark Murhead and Co (1894) 2Ch 437, land was let for use as a
timber yard and included a shed used for drying timber and therefore requiring a free
flow of air through it. The landlord built on the neghbouring land he owned in such a
way as to obstruct the free floor of air and thus prevented the timber merchant from
using the land for the purpose for which he had leased it. The landlord’s action
amounted to breach of his covenant not to derogate from his grant.

c) Fitness for Habitation

Traditionally at common law, there was generally no implied guarantee by the

landlord as to the fitness of the subject matter of any letting. The broad rule was
caveat emptor i.e. buyer beware. However, this degree of legal abstention is now
qualified by a number of exceptions (arising both at common law and by statute) of
which impose on the landlord various kinds of duty in relation to the physical
condition of the premises leased.[2]

d) Duty to Repair
The landlord has an obligation to ensure that the leased property e.g. building is in a
‘proper state or repair.’ For instance he must keep the roof, all external and main walls
and main drains, common parts and common installations and common facilities
including common passages and walkways in a proper state of repair. This covenant is
fundamental to the lease of a building or part of a building.[3] In Warren v Keen
(1954) 1QB 15 it was stated that the tenant must do the little jobs about the place
which a reasonable tenant would do. He must not damage the house but if it falls into
disrepair through wear and tear or lapse of time or for any reason not caused by him
the tenant will not be liable to repair.

e) To pay all rates, taxes, dues, and other outgoings payable in respect of the land
leased

This is also a crucial covenants implied in leases that the land lord undertake to pay all
outgoings relating to the leased premises.

1. Implied Duties of the Tenant (Rights of the Landlord)

a) Obligation to Pay Rent

The tenant must pay any reserved rent by the lease at the time and the manner
specified. Failure will lead to termination of the lease by the landlord although he
must give a notice of intention to terminate.[4]

b) Obligation to Pay Rates and Taxes

The tenant is under an obligation to pay all rates and taxes except those for which the
landlord is liable.[5]

c) Obligation to Repair Leased Premises

Where a whole building or a dwelling house is leased unfurnished, the tenant is

obliged to keep the whole premises in repair (both internal and external repairs).
Where part only of a building or where a dwelling house is let furnished, the tenant is
liable only for internal repairs. Repair in this context is defined as such repair as a
prudent owner would reasonably do, depending on the age, character and locality of
the building.

d) Not to commit waste

The tenant is required to use the land in a sustainable manner and according to
conditions imposed by the lease OR in the right of occupancy, from which the lease
was created including not to cut down, injures or destroys any living tree (s) on the
land unless the purpose of the lease cannot be carried out without such acts. In
Marsden v Heyes (1927)2KB 1 it was held that the tenant must use the premises in a
tenant like manner.

e) Obligation Not to Sublease, Charge or Transfer

A tenant must not transfer, charge, sublet or otherwise part with possession of the
leased premises or any part thereof, unless the landlord agrees in writing. The
landlord’s consent should not be unreasonably withheld. In the case of Chanly v Ward
(1913) 29 TLQ, the court stated that the landlord must show a solid and substantial
cause for withholding his consent. The court also stated that the onus to of proving
that the consent has been unreasonably withheld is on the tenant and that it is not
necessary for the landlord to prove that the conclusions which led to the refusal of
consent were justified, if they were conclusions which might be reached by a
reasonable man in the circumstances.[6]

f) Covenant to permit the lessor to enter to inspect (or repair)

The tenant is required to allow the landlord at all reasonable times to enter personally
or through agents, to inspect the condition of the leased land/premises and carry out
repairs. However, in doing so the landlord must not unreasonably interfere with the
occupation and use of the land/premises demised. He must also give a reasonable
notice.[7]

ENFORCEMENT OF OBLIGATIONS UNDER A LEASE

Having identified the rights and obligations of parties to a lease, it is now prudent to
consider the effect of these rights and obligations upon non-compliance or breach on
the part of either party.

a) Enforcement by a Landlord

A landlord may enforce a breach by a tenant in any of the following ways: distress for
rent, by forfeiture of the lease, action to recover arrears and injunction.

(i) Distress for Rent

Distress is the right to remove certain goods or chattels from the possession of the
tenant in order to compel him to pay the rent due. Kevin Gray captures well this
remedy thus, ‘distress is an ancient common law remedy, which entitles the landlord,
in appropriate circumstances, summarily to seize goods found on the demised
premises, sell them up and recoup from the proceeds of sale any arrears of rent owed
by the tenant.

(ii) Action for Recovery of Rent Arrears

This action may not be brought where the landlord has already distrained, unless the
seized goods or chattels have already been sold and found to be of inadequate value.
(iii) Action for Damages

Damages may be awarded by the court where a landlord proves breach by the tenant
of any covenant other than a covenant respecting payment of rent.

b) Enforcement by a Tenant

It is open to the tenant to institute proceedings against the landlord for an injunction
and/or damages. In certain cases, it is also open to the tenant to repudiate the
agreement altogether i.e. where landlord fails to carry out repairs.

TERMINATION OF LEASES AND CONSEQUENTIAL EFFECTS

A lease may be terminated in any of the following manner

(i) Termination by Notice: Essentially, a notice to vacate the premises is required

where the lease is for a fixed term.

(ii) By surrender of the lease to the landlord in the manner it was granted: A
lease or tenancy may be determined by a surrender of the tenant’s interest to his
immediate landlord. If the landlord accepts surrender, the tenant’s term of years
merges forthwith in the landlord’s reversion and is extinguished. e.g. if the lease was
granted by deed, it should be surrendered in like manner

(iii) By effluxion of time: A lease or tenancy for a fixed term automatically

terminates on the expiry of the stipulated period without any requirement that the
tenant should be given any form of notice to quit. Similarly, when an event upon
which the lease is expressed to come to an end has occurred then the lease terminates
automatically.

(iv) By service of a valid notice to quit on the tenant by the landlord

LECTURE TWENTY FOUR (EASEMENTS)

Introduction
Part XI of the land Act, 1999 offers explanations on easement from sections 143 to
158.An easement is a legal right to use another's land for a specific limited purpose. In
other words, when someone is granted an easement, he is granted the legal right to use
the property, but the legal title to the land itself remains with the owner of the land.
Most commonly, easements are granted to utility companies to run power lines and
cable lines. However, you may also grant an easement to your neighbor if your
property is in the way of his access to a road, or to anyone else who needs to have a
legal right to access your land.[1]

Easements frequently arise among owners of adjoining parcels of land. Common

examples of easements include the right of a property owner who has no street front to
use a particular segment of a neighbor's land to gain access to the road, as well as the
right of a Municipal corporation to run a sewer line across a strip of an owner's land,
which is frequently called a right of way.[2] An easement is a non possessory interest
in another's land that entitles the holder only to the right to use such land in the
specified manner. It is distinguishable from a profit a prendre that is the right to enter
another's land and remove the soil itself or a product thereof, such as crops or
timber.[3]

The “holder” of an easement right, or the party that is benefiting from the easement, is
referred to as the “dominant tenant”. Likewise, the property benefiting from an
easement is referred to as the “dominant estate” or “dominant tenement”. The party
“burdened” by the easement is referred to as the “servient tenant”. Likewise, the
property burdened by the easement is the “servient estate” or “servient tenement”.[4]

Classifications and Terminology

Easements and profits always involve at least one estate, the estate which is burdened
by the interest. This burdened estate is called the servient estate. If the interest
benefits only a particular person, and not another estate, it is said to be in gross, either
an easement in gross or a profit in gross. Where the easement or profit benefits
another estate, rather than a particular person, the benefited estate is called the
dominant estate. An easement or profit which benefits another estate in land is an
easement appurtenant or a profit appurtenant, that is, it is appurtenant to the
benefited estate and will pass with a conveyance of the benefited estate.[5]

Positive and negative easements

A right of way and a right to lay pipes are examples of "positive" easements, as
they involve the right to use the other person's land in a particular manner. By
contrast, a right of access to light and air is an example of a "negative" easement,
because it restricts the other person's freedom in using the land (in this case
restricting the owner from building in a way that would interfere with light or air).
The law is generally reluctant to grant negative easements, and the only types that
have been recognised are access to light and air, a right of support of buildings, and
certain water rights.[6]

"Legal" versus "equitable" easements[7]

An easement may be binding either as a "legal" or "equitable" easement. A legal

easement, which is the most common, is one that is registered on the legal title to the
property over which the easement has effect. If an easement is not registered in this
way, it is an equitable easement.

"Equity" is a system of law created by the courts that supplements strict legal rights
with principles of fairness and justice. An equitable right is generally inferior to a
legal right. In the area of easements, the distinction means that while a legal easement
binds all subsequent owners, an equitable easement binds a subsequent owner only if
he or she was aware of the easement at the time of the sale.

Corporeal rights – those things that are tangible e.g. Land

Incorporeal rights – those things that are intangible e.g. Easements and other legal
rights
NATURE OF EASEMENT

An easement is a right enjoyed by the owner of one piece of land to carry out some
limited activity (short of taking possession) on another piece of land.[8] Easements
are nowhere defined in English law. Most types of easement can be described
functionally, as rights to do something on another’s land. Megarry and Wade
introduce them by saying: [9]

The common law recognised a limited number of rights which one landowner could
acquire over the land of another; and these rights were called easements and profits.
Examples of easements are rights of way, rights of light and rights of water

In order to assess the validity of an easement or of any other interest in land, we have
to look both at its substantive characteristics and at the way in which it has been
created. For the creation of legal interests in land the following characteristics are
necessary for the validity of an easement, as laid down by the decision in Re Ellen
borough Park [1956] 1 Ch 131.

1. There must be a dominant tenement and a servient tenement[10];

2. The easement must accommodate the dominant tenement;

3. The dominant and servient tenements must be owned by different

persons; and

4. The easement must be capable of forming the subject matter of a grant.

1. There must be a dominant tenement and a servient tenement

No person can possess an easement otherwise than in respect of land in amplification

of his enjoyment of some estate or interest in a piece of land. Traditionally it has been
said that there is “dominant land” and “servient land”, while more modern usage
refers to benefited and burdened land. We use both sets of terms.

2. The easement must accommodate the dominant tenement

The requirement is that the right must be of some practical importance to the benefited
land, rather than just to the right-holder as an individual: it must be “reasonably
necessary for the better enjoyment” of that land. The requirement means that the two
plots of land must be reasonably close to each other, even if not actually adjoining.
When it is said that the easement must “accommodate” the dominant land, this means
that there must be some direct beneficial impact on the land itself. The easement
should not exist only for the personal benefit of the owner. This generally means that
the dominant land will be situated next to the servient land. In Hill v Tupper (1863)
159 ER 51 it was held that an exclusive right to put pleasure boats on a canal was not
an easement, the right did not “accommodate” the land, rather it only benefitted the
business of the owner of the right.

3. The dominant and servient tenements must be owned by different

persons

At first sight, the rule simply states the obvious: no-one needs an easement over his or
her own land. But the corollary of the rule is that no-one can create an easement
between two separate plots of land, both in his or her own ownership, before selling
them; and another consequence of the rule is that if the dominant and servient land in
respect of an easement come into common ownership and possession, the easement is
extinguished. A person cannot have an easement over the persons own land. Since an
easement is a right, it is not possible to have a right to do something over land you
already own.

4. The easement must be capable of forming the subject matter of a

grant

The easement must be clear and certain, and must not be a right merely for
amusement. Finally, the easement must be capable of forming the subject matter of a
grant. This is because an easement is a registrable property right and therefore must be
capable of being granted by deed, even if it has not been so granted. Therefore, all of
the necessary legal formalities must be capable of being complied with, for example:

 Both parties must have capacity both to grant and acquire the legal right.
 The easement must be clearly defined. A right to a “beautiful view” is too
vague to be an easement;
  Whilst it is technically possible to create a new type of easement not
previously recognised by law, the court will approach such claims cautiously;
 Generally, the easement should not involve expenditure of money by the
servient owner;
 The easement must not be so extensive so as to put the servient owner out of
possession of his land. For example, in Grigsby v Melville [1972] 1 WLR 1355
an alleged right to store goods in a cellar was rejected because the right
amounted to exclusive use of the small cellar space.

TYPES OF EASEMENTS[11]

1. Easement Appurtenant

Easements are classified as "appurtenant" or "in gross." Easements classified as

"appurtenant" are said to "run with the land," which means they are part of the formal
ownership of the land. For instance, if a neighbor, Sam is granted an easement known
as an easement appurtenant to move his car in and out of the neighbor's driveway,
when Sam sells his property, the new owner also has the limited right to continue to
have access to a neighbor's driveway. In addition, both Sam and future property
owners can use the neighbor's driveway in only the limited manner arranged between
the underlying land owner and original grantee of the easement. In this example, the
neighbor, known as Joe, granted neighbor Sam an express (formally spelled out)
easement which provided Sam with the limited right to use the driveway to move his
car. Neither Sam nor future owners can use the driveway for other purposes such as
playing basketball with his kids. A title search by a prospective owner of the
underlying property would reveal an easement appurtenant.[12]

2. Easement in Gross

An easement in gross is a personal easement that does not transfer with the property.
For instance, if neighbor John grants Tom access to the beach by crossing over John's
property, when Tom sells his land, the new owner is not legally entitled to cross
John's property. The new owner does not have an easement to get to the beach
through John's land. A title search would not show an easement in gross. If you are
considering a real estate transaction that includes an easement or are considering
creating an easement, it is best to get advice from a real estate attorney.[13]
CREATION OF AN EASEMENT

An easement can be created in four ways; by statute, express grant or reservation, by

implication, and by prescription. The most straightforward method of creating an
easement is by express grant. This occurs when the owner of the servient tenement
actually gives the easement to the owner of the dominant tenement.

1) By statute

Occasionally, an Act of Parliament may determine that a local authority, a

corporation, or even a private individual shall be entitled to the benefit of an
easement.

2) By express grant

There are a number of ways in which an easement can be created. The first is by an
express grant by the servient owner to the dominant owner, or by the express
reservation of the right when the dominant owner sells part of his land to the servient
owner. An expressly granted or reserved easement will only be a legal interest in land
if it is created by deed and, in respect of registered land, completed by registration.

3) Implied grant

The most common application of the doctrine of an 'easement of necessity' arises

where land has been sold but for some reason no access to a public road is available.
In Wheeldon v Burrows (1879) 12 Ch D 31 the Court considered an application for
an implied reservation of a right to light arising from the sale of land. What has
become known as the rule in Wheeldon v Burrows is set out as follows:

On the grant by the owner of a tenement of part of that tenement as it is then used and
enjoyed, there will pass to the grantee all those continuous and apparent easements
(by which, of course, I mean quasi easements), or, in other words, all those easements
which are necessary to the reasonable enjoyment of the property granted, and which
have been and are at the time of the grant used by the owners of the entirety for the
benefit of the part granted.

In the case of Corporation of London v Riggs (1880) 13 Ch D 798 the Court

considered whether a right of way of necessity in favour of a landlocked piece of land
over the surrounding land is a general right “for all purposes” or whether it is limited
to the uses to which it had been put at the time when the action first arose.
Easements of necessity are implied when the owner of the land disposes of land and
retains land which is landlocked. Such easements arise under strict conditions: where
there has been a severance and the easement is absolutely necessary for practical
access. Such an easement arises from the actual or implied intention of the parties.

4) By Prescription

Prescription signifies the acquisition of a right by long use e.g. where a person has
enjoyed a right of way for many years. The rationale for prescription is a subtle one.
The essential point is that the fact of long use of the right by the owner for the time
being of the dominant tenement, gives rise to a presumption that a grant of the right
was actually made. Consequently, the law of prescription is sometimes known as the
law of “presumed grant”.

THE EXTINGUISHMENT OF EASEMENTS[14]

Extinguishment is the termination, cancellation, or discharge of a legal right.

Extinguishment of easement is the termination of an easement by abandonment of
use, merger of dominant and servient estates, release, etc.There are several means
whereby extinguishment of easements may currently take place:

1. 1. Extinguishment by written release

Easement may be extinguished by written methods such as by deeds and agreements.

An easement or profit, whether created expressly, impliedly or by prescription, can be
impliedly released. Implied release occurs where the right to exercise the easement is
abandoned or where there is an excessive use of the right.

1. 2. Extinguishment by misuse

An easement is for a specific purpose. If the specific purpose of the easement is

clearly established, and then the use becomes greater than the originally intended to
the extent of overburdening the servient estate; or if the easement is subsequently used
for the interference with the proper enjoyment of the remaining servient estate or
original easement, then the easement may be extinguished.
 1. Abandonment

An easement is abandoned where there is some act or omission on the part of the
owner of the benefited land accompanied with an intention to abandon (that is,
relinquish) the right. The intention to abandon is difficult to establish:[15]

Abandonment of an easement or of a profit à prendre can only … be treated as

having taken place where the person entitled to it has demonstrated a fixed
intention never at any time thereafter to assert the right himself or to attempt to
transmit it to anyone else.

1. 4. Reverse prescription

Easement may be extinguished by a method known as “inverse” or “reverse”

prescription. This method requires the elements required to establish title to be present
for the statutory time period, in detriment to the continued and proper use of an
easement.[16]

1. 5. Merger of ownership

Merger of ownership is a rather common method by which an easement can be

extinguished. The concept is that when the dominant estate becomes united with the
servient estates there is a confusion of rights and the easement may become
extinguished.

1. 6. Elimination of the original purpose

Since easements are created for a specific purpose, it stands to reason that if that
purpose for which the easement was created is eliminated, then the easement will be
extinguished.

1. 7. Abandonment

An easement can rarely be extinguished by abandonment. However, a court may find

abandonment if it can be proven that the holder of the easement intended to abandon
the easement and engaged in conduct that supported such an intent. It's important to
emphasize that both intent and conduct substantiating the intent must be present.
Sometimes failure to use the right for long enough period of time is sufficient to
establish the intent to abandon, but it depends on the circumstances. For example, if
you hold an easement in gross for hunting on a parcel of land, missing a season or two
of hunting on the property probably doesn't rise to abandonment, but not using the
hunting ground for ten continuous hunting seasons and letting your deer stand fall
apart during that time may be long enough to infer intent to abandon.

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LECTURE TWENTY FIVE (PROFITS À PRENDRE AND

LICENSE )
Introduction

A non-possessory interest in land is a term of the law of property to describe any of a

category of rights held by one person to use land that is in the possession of another.
Under common law, profit comes under non possessory interest. Profit a prendre the
right of a person to enter onto the land owned by another person and removes an item
or items previously agreed upon. Right to take from another’s land (gravel, crops,
timber, fish, game), property right over the land –right to use the land for a particular
purpose (don’t own the fish in his pond, have the right to come over his land and fish
in the pond) A ‘benefit to arise out of land’ is an interest in the land, therefore,
immovable property. A Profit a prendre is not revocable in the sense of a license; it
can be terminated at any time upon reasonable notice and can be “gross”: doesn’t have
to tie between two pieces of land.[1]

A Profit a prendre is an interest in land”, this creates an interest in land and gives the
right to take something off someone else’s land including wildlife, minerals or timber.
It can also be characterized as a right to extract some form of natural produce. E.g.
oil/natural gas. Like an easement, profits can be created expressly by an agreement
between the property owner and the owner of the profit.[2]
Profit a prendre is a similar to a license since both permit use of another’s land for
specified purpose. But the Profit a prendre is not revocable like a license which is
generally terminable at any time upon reasonable notice. More is required. The nature
of Profit a Prendre is to remove something from the land. The major difference
between license and Profit a prendre is license to use and right to take is also, a license
will not be enforceable against third parties.[3]

Types of Profit

a) Several or in common

Whether a profit is classified as “several” or in “common” depends upon whether the

servient owner is excluded from exercising a right of the same nature as the profit. A
several profit excludes the servient owner, who cannot exercise such a right, whereas
a profit of common includes the servient owner, who can exercise such a right. [4] The
land over which a profit of common exists is classified as “common land”. If all
profits of common subsisting over that land are extinguished or released, the land will
then cease to be common land.

b) Profits appurtenant

A profit can be appurtenant or in gross. A profit appurtenant can be used only by the
owner of the adjacent property. A profit appurtenant is a profit which is several or in
common, attached to land, for the benefit of certain other identified land, by the act of
the parties. A profit appurtenant should be in some way connected with the enjoyment
of the right of property in the dominant tenement, and should be limited by the needs
of the latter.

c) Profits appendant

Profits appendant are annexed to land by operation of law. They probably only exist
in the form of commons of pasture, and are also known as commons appendant.

d) Profits pur cause de vicinage

A right pur cause de vicinage arises by custom where two plots of common land, with
rights of pasture over them, adjoin and animals are allowed to pass from one plot to
the other. Profit pur cause de vicinage is the profit out of the right of landowners over
common land. It is the right to allow animals grazing common land to stay onto
adjoining common land. Such a right generally comprises the rights of pasture,
fishing, right to take turf and animals. Profit pur cause de vicinage refers to profit
arising when the holders of adjoining commons have allowed their cattle to stray on
each other's lands. A claim for this profit fails when one of the commoners fences off
the common or has driven off the other commoner's cattle in the past.

e) Profits in gross

Profits in gross are not attached to an estate in the dominant land and it is unnecessary
for the person who is granted the profit to have any interest in land other than the
profit itself. Profits in gross are proprietary rights that can be independently registered
with their own title at Land Registry.

LICENSE

A licence is usually a short-term right to occupy a property for a particular purpose,

and it does not give any right to exclusive occupation. A licence is permission,
making it lawful for a property to be used by a person who is not the legal owner.
Therefore, existence of such permission makes lawful what would otherwise be a
trespass. It does not create or grant any interest in the land to the licensee.

A licence is normally created where a person is granted the right to use premises
without becoming entitled to an exclusive possession of them. In practice, most
commonly licences operate as to allow for the property to be used for a specific
purpose and for a defined period of time.[5] Where the licencee oversteps the ambit of
the licence, his status will therefore be that of trespasser.

The grant of licences

A licence may be express or implied in accordance with the way the permission was
granted. An everyday-life example of implied licence is in the case of a shopkeeper in
the invitation to customers to enter his premises to do business. In contrast express
licences govern more specific situations where the permission has been expressly
directed towards a particular individual. An example is where owner invites guests for
dinner or to stay in a room on his property. The licence governs only the specified
period of the stay and any re-entry after that period without further permission would
constitute trespass.[6]

It is important to note that a person cannot grant a licence to himself nor to himself
jointly with another. Therefore, it must be granted by an owner of the property who is
different from the licensee.

The effect of a licence

Whenever a licence is granted, it will be expected to give minimal rights to the

licensee. Therefore, he has no interest in the land and the licence establishes no way
of accruing such. It merely prevents him from being a trespasser and no more.
However, in certain situations where the licence is contractual as granted under a
contract, the agreement could identify certain rights given to the licensee. Further, in
some cases difficulties exist in determining whether a person is a contractual licensee
or a lessee. Whenever, such issue arises, those are resolved through looking at the
substantive terms of the agreement and not by looking at labels or terminology used.
If a contractual licence is established it provides considerably smaller rights to the
licensee were a lease to be found in place.[7]

Lease v Licence

It is often important to establish whether a lease or a licence is held, because the

holder of a lease will have considerably more rights than the holder of a licence. In
Street v Mountford (1985) Ac 809, Lord Templeman said that where exclusive
possession is granted of premises for a term at a rent, then prima facie, a lease is
granted. He warned against 'sham' agreements in which leases are disguised as
something else - usually licences. In Street v Mountford, although a 'licence' was
granted and the landlord reserved the right to enter the room to inspect it, maintain it
and read meters, it was held that in reality the agreement was a lease because the
tenant had exclusive possession.[8]

References

James R. W. (1967), Some Problems on Leases and Licences, 1967 E.A. L. J. 246

James, R. W. (1971), Land Tenure and Policy in Tanzania, East African Literature Bureau,

Nairobi, 1971.
Fimbo, G. M. (1992) Eassays in Land Law, Tanzania, printed by the Dar es Salaam University

Press, 1992.

Riddal, J. G. (1983), An Introduction to Land Law, Third Edition, Butterworths, London, 1983.

MEGARRY’s Manual of the law of Real Property, SixthEdition, Stevens & Sons, London,

1982.

Kjekshus, H. (1977), Ecology, Control and Economic Development in East African

History, The Case of Tanganyika, 1850-1950, Heinemann, London 1977.

Corry, H., (1955), Report on Nyarubanja System in Bukoba, 1955. Reining, Priscilla C.,

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LECTURE TWENTY SIX (INTRODUCTION TO

MORTGAGES)
INTRODUCTION TO MORTGAGES

Introduction

A mortgage involves the transfer of an interest in land as security for a loan or other
obligation. It is the most common method of financing real estate transactions. [1] The
mortgagor is the party transferring the interest in land. The mortgagee, usually a
financial institution, is the provider of the loan or other interest given in exchange for
the security interest. Normally, a mortgage is paid in installments that include both
interest and a payment on the principle amount that was borrowed. A mortgage
security represents various things to various people, depending on their economic
circumstances and their particular wants and needs. A mortgage may represent an
opportunity for a young couple to enter the real estate market and purchase a home.
To a bank, it may mean the generation of profit from the lending of money secured by
real property. Regardless of wants or needs, a mortgage is, in substance, a contract to
borrow money in exchange for the promise to repay with interest, coupled with the
granting of a security interest in the borrower’s real property.[2]

The idea of a mortgage is founded on very ancient Roman law, Mohammedan law,
English common law and Hindu law. Under the Roman law, the first aspect of the
mortgage institution to develop was the fiducia. Essentially, it was a fiduciary
relationship between a lender and a borrower. Property was given to the person
lending in return for a loan. Upon default, the same was forfeited to the lender
regardless of its value. The second limb was the pigmus. This one entailed a transfer
of possession but without the element of forfeiture as in the fiducia. Upon default, the
property was merely sold and not forfeited. The third one was the hypotheca. This one
merely entailed a pledge without delivery of possession but the creditor had the power
of sale which he could exercise upon default. However, he was required to account for
the proceeds from the sale.[3]

Under the Mohammedan law, the idea of interest is alien/offensive to this religion.
Accordingly, they developed the Bye-Bil-Wafa which is equivalent to the English
usufructuary mortgage where the borrower would pledge his property to the lender
and promise to pay the debt but the lender had the right to take rent from the property
without accounting for it until such a time when he fully recovered the principal. In
common law, the mortgage institution was originally characterized by a pledge of
property to a lender coupled with transfer of possession only and not title. Eventually
this developed into what is currently known as the English mortgage which is
basically a conveyance of the property with a proviso known that the mortgagee will
re-convey the property in question to the mortgagor upon the payment of the
debt/principal. It is noteworthy that the historical pattern of the English law of
mortgage, security interests in land have been created by means of the manipulation of
existing estates and interests in the land of the borrower of money.[4] This practice has
brought about the consequence that the law of mortgage is heavily marked by fiction.
As Maitland said, the mortgage transaction is ‘one long suppressio veri and suggestio
falsi. Lord Macnaghten declared in Samuel v. Jarrah Timber and Wood Paving Corpn
Ltd442 that ‘no one…by the light of nature ever understood an English mortgage of
real estate.’

Security Interests in Land

As previously stated, the basic form and substance of the early common law mortgage
contains two essential elements, the first being the sealed promise to repay the loan
and the second the transfer of title to the lender, conditional upon the borrower’s right
of redemption. This meant that, upon the borrower repaying the full amount of the
debt to the lender, in accordance with the terms of the mortgage, the lender would
have to give the borrower his title back.[5]

Initially, the practice was that a borrower, upon defaulting in repaying the loan, had to
forfeit the land which he had conveyed as security for the loan to the lender.
Consequently, he would lose the land regardless of its value, which was quite harsh.
Equity intervened to remedy these harsh provisions of common law, guided by the
principle that ‘once a mortgage, always a mortgage’.

The principle was interpreted by the chancery courts to mean that the basic right of
the lender was his money (the principal) and that his interest and right in the land was
only a security for the loan. By further construction, the courts developed the rule that
failure to repay the loan on the agreed date did not extinguish the borrower’s interest
in his land. Accordingly, a default in repaying the loan did not necessarily have to
cause the borrower to forfeit the land to the lender.

By applying this principle, the courts of equity developed the equity of redemption
and the equitable right to redeem. The first limb gave the mortgagor a general right to
redeem his property on or before the date of redemption. The equitable right to
redeem gave the borrower a right to redeem the property long after the expiration of
the agreed date of redemption. It is in view of these equities that the court in Santley
v. Wilde [1899] 2 Ch 474 observed that, ‘the essential nature of a mortgage is that it is
a conveyance of a legal or equitable interest in property, with a provision for
redemption, i.e. that upon repayment of a loan or the performance of some other
obligation the conveyance shall become void or the interest shall be reconveyed.
The essential nature of a mortgage is that it is a conveyance of a legal or equitable
interest in property, with a provision for redemption, that is, that upon repayment
of a loan or performance of some other obligation, the conveyance shall become
void or the interest shall be re-conveyed.

The concept of security in land

In a lending - borrowing transaction, a creditor may be willing to rely solely on his

debtor’s promise to fulfill his contractual obligation of paying the debt. This is a
common practice in Tanzania where lenders advance unsecured credit relying solely
on the promise to pay back. The issuance of unsecured credit is common especially
where a small sum of money is involved (small scale loans). However, where a huge
sum of money is involved creditors do want something more than a mere promise to
repay the money, they may demand and accept securities.[6]

The word “security” means an interest which the debtor confers on the creditor in an
item of property owned by himself or, by arrangement, in the property of some third
party such as a surety. The arrangement in the property of the third party may be in
the form of a guarantee or an indemnity. The arrangement in the property of the third
party can also be in the form which the borrower could provide but had to be provided
by a third party. The important fact is that the interest acquired by a creditor must
confer on him a right to satisfy the debt out of the proceeds of the property in
question.[7]

Security can be personal or real. Personal security consists of the contract of

guarantee, whereby the guarantor promises to answer for the obligation of the debtor
should the debtor default. Real security gives the creditor rights over property charged
as security. The property may be real, such as land, or personal.[8]

Reasons for the preference of land as against other properties as security for a
loan

1. Landed properties are more stable.

 2. The value of land appreciates than the others, particularly in times of
inflation.

3. Land is immovable and we can go to the land and inspect it physically.

4. It is easier for banks and other mortgagees to enforce their security in

the case of landed properties than other properties.

Mortgage and related transactions

1. A mortgage and a pledge

A pledge is a Bailment or delivery of Personal Property to a creditor as security for a

debt or for the performance of an act. Sometimes called bailment, pledges are a form
of security to assure that a person will repay a debt or perform an act under contract.
In a pledge one person temporarily gives possession of property to another party.
Pledges are typically used in securing loans, pawning property for cash, and
guaranteeing that contracted work will be done.[9]

2. A mortgage and a lien

The right to retain the lawful possession of the property of another until the owner
fulfills a legal duty to the person holding the property, such as the payment of lawful
charges for work done on the property. A mortgage is a common lien. In its widest
meaning this term includes every case in which real or personal property is charged
with the payment of any debt or duty; every such charge being denominated a lien on
the property. In a more limited sense it is defined to be a right of detaining the
property of another until some claim be satisfied. The right of lien generally arises by
operation of law, but in some cases it is created by express contract. There are two
kinds of lien; particular and general. When a person claims a right to retain property,
in respect of money or labor expended on such particular property, this is a particular
lien.[10]

1. 3. A mortgage and a charge

A charge is less easy to define. In distinction from a mortgage, the creditor does not
obtain either legal or beneficial title to the charged asset. But what he does obtain is
an equitable proprietary interest in the asset by way of security. In Re Bank of Credit
and Commerce International [1998] AC 214 at 226, Lord Hoffmann recognized the
difficulty of providing an exhaustive definition. He contented himself with describing
a charge as being a proprietary interest granted by way of security without a transfer
of title or possession. It is also common to describe a charge as the appropriation of an
asset in discharge of a liability. An example of such a description is that given by
Peter Gibson J in Carreras Rothmans v Freeman Mathews Treasure [1985] 1 Ch
207 at 227, He said that a charge is created ‘by an appropriation of specific property
to the discharge of some debt or other obligation without there being any change in
ownership either at law or in equity ...’[11]

4. A mortgage and a sale

A mortgage is not a sale. In Owoniboys Technical Services Ltd v. Union Bank of

Nig Ltd (2003) SCNQR 58, the court pointed out that “ once a mortgage, always a
mortgage; there must be no clog on the equity of redemption.” The law does not
divest the mortgagor of his title in the property; he remains the owner, whilst the
mortgagee is the custodian of the property as a form of security to ensure repayment
of the mortgagor’s indebtedness. But it is pertinent to note that while a mortgage is
not a sale; the mortgagee reserves the right in some instances to sell the mortgage
property where the mortgagor defaults in his obligations under the mortgage.

Creation of mortgages

There are, at common law, two broad types of mortgages, namely, legal and
equitable.

a) Legal mortgage

This is a kind of mortgage created pursuant to statutory provisions and usually by

Deed. A legal mortgage occurs when the owner gives legal title of property to a
creditor to secure payment of the owner's debt. In a typical mortgage, once the debtor
pays off the debt, legal title to the property will revert to the original owner. [12] A
legal mortgage is exactly what it sounds like -- it's a security instrument that meets all
of your state's laws. Legal mortgages have all of their blanks filled in with correct
information and are signed in the right places. They're also recorded according to the
laws and regulations of the county in which the property is located. Legal mortgages
are binding documents that, without a doubt, lock you into making your loan
payments or facing foreclosure.[13]

Advantages of legal mortgage

1) It is easier to enforce a legal mortgage. The equitable mortgagee must obtain a

court order before he can sell or take possession of the property or foreclose or
appoint a receiver/manager.

2) A legal mortgagee without notice of the equitable mortgage takes priority over the
equitable mortgagee

3) It is easier to commit fraud in the case of equitable mortgage than in legal

mortgage; the borrower who has deposited the original title deeds with a bank may
obtain a certified true copy of the Deed from the Registry for other fraudulent
purposes.

Equitable Mortgage

Courts of equity evolved to redress injustices caused by legal courts' strict

adherence to the law. Courts of equity thus recognize "equitable" mortgages,
which occur when a transaction does not fulfill all legal requirements of a
mortgage, but still looks and operates like a mortgage; in other words, property
is offered to a creditor to secure debt.[14]Mere deposit of title deeds with a bank
with a clear intention that the deeds should be retained as security for a loan is
one of the methods of creating equitable mortgage.
 There are two legal consequences of the deposit of title deeds as security for a
loan

a. There is an implied agreement by the mortgagor to execute a legal mortgage in

favour of the mortgage.

b. It amounts to part performance.

And based on the principle in Walsh v Lonsdale (1882) 21 Ch D. 9, to the effect that
equity looks as done that which ought to be done, where the mortgagor is in default of
payment of the loan, the court will, in an action by the mortgagee, compel the
mortgagor to execute a legal mortgage in favour of the mortgagee. In Russel v Russel
(1783) 1 BRO CC 269, it was held that a deposit of title deeds of property for the
purpose of security is not only evidence of an agreement to mortgage the property but
also a sufficient act of part performance which makes the agreement enforceable.

The equity of redemption

Historically, a mortgage given as security for a loan took the form of a conveyance to
the lender of the borrower’s legal title. Upon repayment of the loan, the mortgagee
reconveyed legal title to the mortgagor. If the mortgagor failed to pay on the due date
(the contractual date of redemption), the mortgagee’s title became absolute at law. At
this time, however, the equitable right to redeem arose.[15]

The equity of redemption refers to the right of a mortgagor in law to redeem his or her
property once the debt secured by the mortgage has been discharged. The equity of
redemption grew in time to be such a favorite with the courts of equity, and was so
highly cherished and protected, that it became a maxim, that “once a mortgage always
a mortgage.” The object of the rule is to prevent oppression, and contracts made with
the mortgagor, to lessen, embarrass, or restrain the right of redemption, are, regarded
with jealousy, and generally set aside as dangerous agreements, founded in
unconscientiously advantages assumed over the necessities of the mortgagor.[16]

The doctrine was established by Lord Nottingham as early as 1681, in Newcomb v.

Bonham 1 Vernon, 7 (1681),; in that case the mortgagor had covenanted, that if the
lands were not redeemed in his lifetime, they should never be redeemed; but the
chancellor held, that the estate was redeemable by the heir, notwithstanding-the
agreement; and though the decree in that case was subsequently reversed, it was upon
special circumstances, not affecting the principle. The same general doctrine was
pursued in Howard v. Harris, (1681), 1 Vern. 33. Howard mortgaged land. The
mortgage deed contained a proviso that the mortgagor and his heirs male might
redeem. Howard conveyed the land, subject to the mortgage, to an assignee, who was
not his heir. It was held that, the assignee may redeem. And a mortgagor who redeems
is entitled to get his land back free from all restrictions.

The maxim is "once a mortgage, always a mortgage. This maxim is applied in two
ways -

1) Equity will not allow any "clog" on the equity of redemption.

This means that any provision in the mortgage deed which attempts to deprive the
mortgagor of his right to redeem absolutely and at any time is void.

2) If a transaction is really a mortgage, though it is carried out in the form of a sale,

equity will treat it as a mortgage, and will not allow the mortgagor to be deprived of
his equity of redemption.

The rule against clogging or fettering the equity of redemption relates to this equitable
right. Lord Parker described the rule against clogging the equity of redemption in the
following terms:

The rule may be stated thus: the equity which arises on the failure to exercise the
contractual right cannot be fettered or clogged by any stipulation contained in
the mortgage or entered into as part of the mortgage transaction.[17]

A mortgage therefore could not contain a clause that conferred on the mortgagee an
option to buy the mortgaged property.[18] Similarly, a clause which allowed the
mortgagor only a limited time period within which to redeem the mortgage was void
as a fetter on the mortgagor’s right.[19] Clauses which conferred a collateral
advantage on the mortgagee, such as a mortgagor’s promise to buy specified goods
only from the mortgagee, were also regarded suspiciously.[20]

Rights of the Mortgagor and mortgagee in mortgage transactions

The essence of taking a mortgage security is to give the mortgagee an assurance of

having property to fall back on upon failure of the mortgagor to meet his contractual
obligation on the date fixed for payment of the mortgage debt. The method of
enforcement of mortgage is legal or equitable. The following methods of enforcement
are recognized by law.[21]
 1. Enforcement of covenant to repay

2. Entering into possession

3. Sale of mortgaged property

4. Appointment of a Receiver

5. Foreclosure of the equity of redemption (has been abolished in Tanzania

)

1. Enforcement of the covenant to repay

A covenant to repay is a necessary one in a mortgage agreement, and where it is

omitted, it remains implied, since in equity, the receipt of money carries with it the
obligation to repay in the absence of a covenant to repay.[22]

1. 2. Entering into possession

A legal mortgagee is entitled in law to enter into possession by virtue of his legal title.
The right arises immediately after the execution of a mortgage deed, except such right
has been contracted out by himself under the mortgage Agreement. According to
Harman L.J in Four Maids Ltd v.Dudley Marshall (Properties) Ltd (1957) Ch.317,

The right of the mortgagee to possession in the absence of some contract has
nothing to do with the default on the part of the mortgagor. The mortgagee may
go into possession before the ink is dry on the Mortgage unless there is something
in the contract, express or by implication whereby he has contracted himself out
of that right. He has the right because he has a legal term of years in the
property.

As a result of the mortgagor’s right to possess the mortgaged property, neither the
mortgagee nor his Agent can commit trespass.
The mortgagee has the obligation to be diligent in collecting rents and profits and be
liable to the sums not recovered due to his negligence or willful default. Where he is
in physical occupation, he is liable for occupation rent. He is obliged to keep the
mortgaged property in a state of repairs which cost may be met from the rents and
profits collected; and he is liable for deterioration of the property where it is left to
degenerate into a state of disrepair. The mortgagee may charge only to the extent of
reasonable improvements which enhances the value of the property, but not extra
ordinary one made without the consent of the mortgagor.[23]

1. 3. Sale of Mortgaged Property

A mortgage instrument may provide for the Mortgagee’s power of sale and stipulate
conditions for the exercise of that power, so that except the mortgagee complies
strictly, the sale shall be ineffectual. In exercising the power of sale, the law requires
the mortgagee to act in good faith, and in the absence of fraud, any unfair dealing with
the mortgaged property or collusion with the purchaser, resulting in gross undervalue.
The case of Aodhcon LLP v Bridgeco Ltd [2014] All ER (D) 50 (Mar) considered the
mortgage’s duty to take reasonable care to sell a mortgaged property for the best price
reasonably obtainable

A mortgagor may bring an application for an Order of Interim or Interlocutory

injunction restraining the mortgagee from exercising his power of sale on the
following grounds:

a) Where the power of sale has not arisen or become exercisable;

b) Where the mode of sale contemplated by the mortgagee deviates from the mode
prescribed by the mortgaged instrument;

c) Where the amount claimed by the mortgagee is excessive

d) Where prevailing circumstances give rise to estoppels -for instance, where the
mortgagee has caused the mortgagor to believe in a set of facts upon which he has
acted, equity will restrain the mortgagee from enforcing the power of sale under the
mortgage.
e) Where mortgage is a fraud or the mortgage deed is not executed by the
mortgagor, and

f) where the mortgagee sells at an undervalue

1. 4. Appointment of Receiver

This remedy is open to both the legal and equitable mortgagee. The legal mortgagee
may appoint

a Receiver where he cannot go into physical possession (e.g. due to the existence of
binding leases) for the same reason as he goes into possession himself, such as where
the security is in danger of being squandered by the mortgagor, or that being in urgent
need of his capital, he is anxious to intercept the profits and apply them to the
discharge of the mortgage debt.[24]

Rights of the mortgagor

The mortgagor has the following rights: Right of ownership, right of sale; and the
equitable right of redemption.

1. 1. Right of Ownership

Where the mortgagor is in possession, he remains the true beneficial owner of the
property in the eyes of equity, and can therefore grant a lease of the property, take
rents and profits. The mortgagor is not liable to account for the rents and profits
derived to the mortgagee, and he can accept surrender of leases .These rights
notwithstanding, the mortgagor’s possession is precarious for; he is the mortgagee’s
tenant and therefore, not entitled to any notice of termination. The mortgagee may
evict the mortgagor by taking out a summons to recover possession.[25]

1. 2. Sale by Mortgagor

One fundamental principle in the law of mortgages is that the real owner of the
mortgaged property in equity is the mortgagor and the interest of the mortgagee in the
property is the security for credit given to the mortgagor. Therefore, a sale of the
mortgaged property by the mortgagor is far from being fraudulent and cannot be void,
even though the purchaser takes the legal estate subject to the mortgage. The
mortgagee remains protected. The most effective way of giving good title to a
purchaser is by him paying off the mortgagee, and paying the mortgagor the
difference between the value of the property and the amount of the loan repaid, while
the property is then conveyed to such purchaser jointly by the mortgagor and
mortgagee.[26]

1. 3. The Equity Right of Redemption

This has been defined as the right of the mortgagor to recover the security by
discharging his obligations under the mortgage, although the time fixed by the
contract for the performance of those obligations has passed, and even though under
the express terms of the agreement, the security may be stated to be the absolute
property of the mortgagee. This right is inherent in any mortgage contract and cannot
be waived or contracted out by agreement. Failure to repay the mortgage debt on the
contract date extinguishes the mortgagor’s right to redeem at law, but equity implies a
condition giving the mortgagor a continuing right to redeem which may exercise
before it is destroyed by Foreclosure, sale, release or lapse of time.[27]

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 LECTURE TWENTY SEVEN (MORTGAGES UNDER THE LAND ACT...

LECTURE TWENTY SEVEN (MORTGAGES UNDER

THE LAND ACT, 1999)
MORTGAGES UNDER THE LAND ACT, 1999

INTRODUCTION
Before the Land Act, 1999 came into force in May 2001; there was no single piece of
legislation which provided for the creation of mortgages or charges of land in the
country. We relied on the English law. The law which was supposed to provide for
dealing in property, that is the Land (Law of Property and Conveyancing) Ordinance
(Cap. 114), did not proceed to provide for the manners of creating instruments of
disposition. It simply applied in the country the law and practice of mortgage which
were in force in England on the first day of January, 1922. The said English laws were
to apply in the like manner as they applied in England. As a result of this provision,
the pre 1922 English law relating to mortgage became applicable in the country.[1]

The Land Act, 1999 has an enormous impact on the law and practice of property.
Apart from the fact that it is the main source of law in the overall administration of
land matters, it names other laws which are to be applied in its implementation.
Section 180(1) of the Act provides this;

Subject to the Provisions of the constitution and this Act, the law to be applied by the
courts in implementing, interpreting and applying this Act and determining disputes
about land arising under this Act or any other written law shall be

(a) The customary laws of Tanzania- and

(b) The substance of the common law and the doctrines of equity as applied from time
to time in any other countries of the Commonwealth which appear to the courts to be
relevant to the circumstances of Tanzania.

The focus of this lecture therefore will be the analysis of the Land Act, 1999 and
subsequent amendments by the Land (Amendment) Act, 2004 on mortgages and the
Mortgage Financing (Special Provisions) Act, No. 17 of 2008.

Mortgages under the land Act, 1999

Part X of the land Act, in sections 111 to 142 offer extensive explanations about
mortgages and other related issues. However, the land Act, 1999 was amended in
2004 by repealing Part X of the Act, and substituting for it the following new Part X.
The amended provisions have abandoned the plain language which was initially used
by the Land Act, 1999. It has now employed specific terms. The Land Act, 1999
before the 2004 amendment used terms “borrower” and “lender” to signify mortgagor
and mortgagee respectively. This use of expression resulted in difficulty especially
where the borrower as the person who borrows was not the mortgagor that is the
person who executed the mortgage. The amended provisions have rectified that
difficulty by employing proper expressions – borrower, mortgagor, and mortgagee.
The amended provisions have also added the definitions of mortgagor and mortgagee
to supplement the definitions of borrower and lender which existed before the
amendment.[2]

As to forms of mortgages, the amended provisions have changed the forms of

mortgages capable of being created in the country. As originally enacted, the Land
Act, 1999 provided for the possibility of creating ordinary mortgages, small
mortgages, customary mortgages, informal mortgages, and a form of mortgages
referred to as lien by deposit of certificate of title. After the 2004 amendment, the
creation of small mortgages is not specifically provided for in the Act. In principle it
is no longer possible to create a small mortgage, although in practice a small mortgage
can be created where a small sum of money is involved.[3]

The amendment has also introduced or sanctioned the creation of a third party
mortgage. The other forms of mortgages such as ordinary mortgages, customary
mortgages, informal mortgages and lien by deposit of certificate of title are
retained.[4] Section 114(1) of the amendment has offered explanations concerning
validity of a mortagage of a matrimonial home including a customary mortgage of a
matrimonial home. In this aspect, any document or form used in applying for such a
mortgage shall be valid only if is signed by, or there is evidence from the document
that it has been assented to by the mortgagor and the spouses or spouses of the
mortgagor living in that matrimonial home.[5] Or any document or form used to grant
the mortgage shall be valid only if is signed by or there is evidence that it has been
assented to by the mortgagor and the spouse or spouses living in that matrimonial
home. Therefore, a spouse cannot mortgage or sell a matrimonial home unless the
other spouse consents or a court has authorized the mortgage or sale of the home.

In the case of Mtumwa Rashid v Abdallah Idd and Salum Omari, [6]the court stated as
follows;

Where the matrimonial home is jointly owned by the spouses, there can be no
basis whatsoever for so limiting the rights of the non-consenting spouse who, like
the other spouse, owns the matrimonial home in his/her own right. -Since it is
common ground that Idd Ally knew that the matrimonial home was jointly
owned by Salum Omar and Mtumwa Rashid, then it is clear that both the seller
and the purchaser negotiated the sale secretly in order to deprive Mtumwa
Rashid of her ownership of the matrimonial home. Such conduct amounted to
fraud and the resulting sale was obviously tainted. -In the result the purported
sale by the parties and the purported consent by the Commissioner for Lands to
such sale were void in law with consequences that Salum Omar did not pass title
to Idd Ally, the purchaser, under the transaction.

Section 114(2) of the amendment Act vested the responsibility for a mortgagee to take
reasonable steps to ascertain whether the applicant for a mortgage has a spouse or
spouses. However, this responsibility has been repealed by part II of the Mortgage
financing Act, 2008 through section 8. It shall therefore be the responsibility of the
mortgagor to disclose that he has a spouse or not and upon such a disclosure the
mortgagee shall be under the responsibility to take reasonable steps to verify whether
the applicant for a mortgage has or does not have a spouse.

An applicant will commit an offence if gives false information to the mortgagee in

relation to the existence of a spouse or any other third party and upon conviction shall
be liable to a fine of not less than one half of the value of the loan money or to
imprisonment for a term of not less than twelve months.[7]

Forms of mortgages under the Land Act, 1999

The following are the forms of mortgages under the Land Act, 1999.

1. Ordinary mortgage

The ordinary (formal) mortgage is the main form of mortgage under the Land Act,
1999. It is a form of mortgage which any occupier of land under a right of occupancy
or lease can execute by mortgaging his interest in the land or a part thereof to secure
the payment of a debt or some other obligations. This power is contained in section
113 (1) of the Land Act, 1999

2. Informal mortgage

Another form of mortgage capable of being created under the Land Act, 1999 is an
informal mortgage. Section 113 (5) (a) provides that nothing in this section shall
operate to prevent a borrower from offering and a lender from accepting a written and
witnessed undertaking, the clear intention of which is to charge the borrower’s land
with the repayment of money or money’s worth obtained from the lender. An informal
mortgage is in fact a charge which is employed to carry out a mortgage transaction.
No special form is provided and that means the parties may devise a simple document,
using simple and clear words charging the property for the payment of money.[8]

3. Lien by deposit of documents

Before the enactment of the Land Act, 1999 the deposit of documents would result in
the creation of an equitable mortgage. Under the Land Act, 1999, an act of deposit of
documents would convey a legal title in the property. This new form of mortgage is
called a lien by deposit of document. This form of mortgage accords with section 64
(1) of the Land Registration Act which requires a depositee of a certificate of title
with the intention to create a lien to give a notice to the Registrar of land of such
deposit.

4. Customary mortgage

Customary mortgage is recognized in Tanzanian land laws. Section 115(1) of the land
amendment Act, 2004 recognises it by offering the following information.

The creation and operation of customary mortgages of land shall, subject to the
provisions of this section, continue to be in accordance with the customary law
applicable to the land in respect of which the customary mortgage is created.

It is important to note that customary law is not uniform due to variations of customs
and traditions of tribes. The difference in customary laws and practices means rights
and burdens imposed by customary mortgages will depend on the locality in which
the mortgage transaction took place. However, these different forms of customary
mortgages may have some common traits. As a result it is possible to assume that a
particular established customary mortgage practice represents general customary
mortgage practices in the country.[9]

5. Third party mortgage

A third party mortgage is a mortgage executed to secure a debt of another. In this
form of mortgage there are three parties involved the mortgagee (lender), the
borrower and the mortgagor. The possibility of creating a third party mortgage is
important because of some peculiar facts associated with borrowing and borrowers in
Tanzania. For instance, having a suitable security alone does not guarantee a grant of
a credit facility. A potential borrower must show evidence of their ability to repay the
loan. Now the need to balance the demand for borrowing against the lack of suitable
securities necessitated third party mortgage. To a certain extent, a third party
mortgage is a way of sharing good securities. The arrangement ensures that the
borrower gets the credit facility he needs and the lender the suitable security he
demands.[10]

Mortgage of a matrimonial home

A mortgage of a matrimonial home is not a discrete form of mortgage, but rather a

distinct mortgage created using a matrimonial home. It can be an ordinary mortgage
or an informal mortgage or a mortgage by deposit of document or a customary
mortgage executed using a matrimonial home.

Rights of parties under a mortgage

A mortgage is a contract. The agreement to lend money is a simple contract

transaction. This makes the general principles of contract such as that a man should
abide by his contract applicable. In addition, some contractual remedies may be
available to parties under a mortgage.[11] However, a mortgage of land shall take
effect as a security only. Section 116(1) of the land amendment Act, 2004 provides
this;

On and after the date of the commencement of this Act, a mortgage shall have
effect as a security only and shall not operate as a transfer of any interests or
rights in the land from the mortgagor to the mortgagee but the mortgagee shall
have, subject to the provisions of this Part, all the powers and remedies in case of
default by the mortgagor and be subject to all the obligations that would be
conferred or implied in a transfer of an interest in land subject to redemption.
Mortgagee’s remedies

Section 126 of the land amendment Act, 2004 offers for the remedies available where
the borrower defaults. The following remedies may be exercised,

a) Appoint a receiver of the income of the mortgaged land;

b) lease the mortgaged land or where the mortgaged land is of a lease, sub-lease the
land;

c) enter into possession of the mortgaged land; and

d) Sell the mortgaged land, but if such mortgaged land is held under customary
right of occupancy, sale shall be made to any person or group of persons referred to in
section 30 of the Village Land Act, 1999.

Remedies Available to Mortgagor

The Mortgagor can do the following;

a) Apply to the court to re-open the mortgage/revise the terms of the mortgage.
Application for revision of the terms is possible if the mortgage was obtained by the
following ways:- (a) fraud, deceit or misrepresentation by mortgagee, (b) in a manner
which is unlawful or contain a provision which is unlawful, (c) through undue
influence by a 3rd party and mortgagee had notice of it.

b) Discharge the mortgage by paying the sum due (redeem the property)-Right of
redemption

Tacking

The owner of an immovable property may mortgage his property to others for
securing the repayment of the loans advanced or to be advanced. Doctrine of Tacking
is a special doctrine which arises in certain type of transaction during the mortgage. In
this doctrine, the owner of an immovable property can mortgage his property to other
for securing the different advances made. Here the same property is mortgaged again
and again.
For example A may mortgage his immovable property with B for a loan. He can
mortgage the same property to other people for loans from such persons. He can again
mortgage the same property subsequently with B for a fresh advancement of money.
Here the rule of priority in case of realisation rests with B; but only for the first
advancement he made. He can claim the second advancement after the claims of other
persons.

Consolidation of mortgages

The right of a mortgagee who has taken mortgages on two or more properties from the
same mortgagor to require the mortgagor to redeem all of the mortgages or none,
provided that the contractual date of redemption (see power of sale) for all of them
has passed. The right arose because it was considered unfair to a mortgagee to have
one security redeemed when another, given by the same mortgagor, might be
inadequate to secure that loan

LECTURE TWENTY EIGHT(PROBATE AND ESTATE

ADMINISTRATION)
PROBATE AND ESTATE ADMINISTRATION

INTRODUCTION

When a person dies, someone has to deal with their affairs. This is called
'administering the estate'. If the person who has died leaves a will, it will usually name
one or more people to act as the executors of the will - that is, to administer their
estate. If you are named as an executor of a will you may need to apply for a grant of
probate. A grant of probate is an official document which the executors may need to
administer the estate. It is issued by a section of the court known as the probate
registry.[1]

If there is no will (known as dying intestate) the process is more complicated. An

application for a grant of letters of administration (an official document, issued by the
court, which allows administrators to administer the estate) will need to be made. The
person to whom letters of administration is granted is known as the administrator. The
administrator is the person who has the legal right to deal with the affairs of the
person who has died, and is determined by a set order of priority. The administrator
will usually be a close relative of the person who has died, if there is one. There may
be more than one person who has an equal right to do this.[2]

The probate and administration of estate in Tanzania is covered under the probate and
Administration of estates Act, Cap 352.

What is probate?

Probate is a legal proceeding to administer certain kinds of property (called probate

property) owned by someone who has died (the decedent), and to see that claims,
expenses and taxes are properly paid, and that the remaining estate is distributed to
those entitled to receive it under the decedent’s will or Tanzanian law. Probate
property is all property titled in the decedent’s name alone. It is distributed only
under the decedent’s will or according to the law. A probate proceeding takes place in
the probate court of the county where the deceased property owned lived. If the
deceased also owned real estate in another state, additional proceedings may be
necessary in that state.[3] Section 2(1) of the Act defines "probate" as the copy of a
will, or, in the case of an oral will, a statement of the contents thereof, certified under
the seal of the court, with a grant of administration to the estate of the testator.

Administration of estates

Administration of estates is a process that involve the collection of the assets of a

deceased person, payment of the debts and distribution of the surplus to the
persons/beneficiaries entitled by the personal representatives of the deceased ie his
executors if any appointed otherwise his administrators.[4] The executor on the other
hand is the person to whom the execution of a will ie the duty of carrying it into effect
is confined by the testator. Therefore the executor is duty bound to (a) bury the
deceased (b) proof the will ie getting it approved by a grant of probate by a court of
law.[5]

Why is probate necessary?

Probate is necessary to give the executor or administrator legal authority to deal with
the decedent’s probate assets. The executor or administrator has the authority and
duty to take control of and safeguard the assets of the decedent’s estate. Probate then
provides a process for the payment of outstanding debts, taxes and the expenses of
administration, and for the distribution of the remainder of the estate to the
beneficiaries and heirs.[6]

What does probate involve?

Probating an estate requires the appointment of a person to conduct the administration
of the estate. If there is a will, this person usually is named in the will and is called an
executor. If there is no will or no person is named in the will, this person is appointed
by the probate court and is called an administrator. The executor or administrator
may be an individual, a bank or a trust company.

The executor or administrator takes care of the following tasks:

1. caring for all property of the decedent

2. Receiving payments due the estate, including interest, dividends and

other income;

3. Collecting debts, claims and notes due the decedent

4. Determining the names, ages, addresses and degree of relationship of all

heirs

5. Determining the names, ages and addresses of all beneficiaries, if there is

a will

6. Investigating the validity of all claims against the estate and paying all
outstanding obligations

7. Planning for taxes and preparing and filing estate tax returns when
required;

8. Carrying out the instructions of the probate court pertaining to the estate
and distributing the assets of the estate to the heirs.

The probate court judge and support staff supervises the work of the executor or
administrator. These actions may require the preparation and filing of numerous legal
documents, the provision of notices, hearings in court, an appraisal of the assets of the
estate, an inventory of the assets, completion of final income tax returns and possibly
gift and estate tax returns, an accounting of funds, final transfer of all assets to
beneficiaries, termination of the probate proceeding, and discharge of the executor or
administrator by the probate court. Because of the complexity of these procedures,
the assistance of an attorney usually is needed.[7]

What does it mean when someone dies “intestate”?

Dying intestate simply means that a person died without a will spelling out how his or
her property (called an estate) is to be distributed.[8]

Duties of an administrator or executor

Remember, if a person dies with a will, the powers granted to the executor in the will
empower the executor to perform tasks without the permission of the Court while an
administrator must request permission of the Court to perform tasks such as to transfer
tangible personal property (furniture), to transfer motor vehicles or to sell real estate.
Some duties of an administrator are similar to those of the executor of a will.

The basic duties of an administrator and an executor are:

1. Inventory and appraisal. The administrator must identify and

determine the fair market value of all financial assets and property that were owned by
the decedent at the time of death.

2. Collecting assets. The administrator must collect all assets of the

decedent. This is very important (especially to prospective heirs) because it is these
assets that will be distributed to the heirs after debts and taxes have been paid.

3. Payment of debts and expenses.

4. Distribution of assets.

Minors and persons of unsound mind

Section 23 of the Act explains that Probate or letters of administration shall not be
granted to any person who is a minor or of unsound mind.

Petition for letters of administration[9]

Application for letters of administration shall be made by petition, stating;

(i) the date and place of the deceased's death;

(ii) the family or other relatives of the deceased, and their respective residences;

(iii) the right in which the petitioner claims;

(iv) the amount and nature of assets which are likely to come to the petitioner's
hands;

(v) that diligent search has been made, and no valid will has been discovered; and

(vi) Whether any proceedings for the grant of letters of administration, or otherwise
for the administration of the estate, have been commenced before any other court or
authority, whether within Tanzania or outside it.

In addition to these particulars the petition shall further state, when the application is
to a District Delegate, that the deceased at the time of his death had a fixed place of
abode within the jurisdiction of such Delegate.

Caveats against grant of probate or administration

(i) Any person having or asserting an interest in the estate of the deceased may
enter a caveat against the probate grant or letters of administration.

(ii) A caveat may be entered with the High Court or, where the deceased at the time
of his death had his fixed place of abode within an area for which a District Delegate
has been appointed or application for probate or letters of administration has been
made to a District Delegate, with that District Delegate.

(iii) Immediately on a caveat being entered with a District Delegate he shall send a
copy thereof to the High Court.

(iv) Where a caveat lodged with the High Court discloses that the deceased at the time
of his death, has his fixed place of abode within an area for which a District Delegate
is appointed, the Registrar shall send a copy thereof to that District Delegate.

(v) A caveat shall remain in force for four months after the date upon which it was
lodged (unless sooner withdrawn) but, subject to the provisions of section 59, may be
renewed

Revocation of grants and removal of executors[10]

The grant of probate and letters of administration may be revoked or annulled for any
of the following reasons;

1. That the proceedings to obtain the grant were defective in substance;

2. That the grant was obtained fraudulently by making a false suggestion,

or by concealing from the court something material to the case;
 3. That the grant was obtained by means of an untrue allegation of a fact
essential in point of law to justify the grant, though such allegation was made in
ignorance or inadvertently;

4. That the grant has become useless and inoperative;

5. That the person to whom the grant was made has willfully and without
reasonable cause omitted to exhibit an inventory or account in accordance with the
provisions of Part XI or has exhibited under that Part an inventory or account which is
untrue in a material respect.

Where it is satisfied that the due and proper administration of the estate and the
interests of the persons beneficially entitled thereto so require, the High Court may
suspend or remove an executor or administrator (other than the Administrator-General
or the Public Trustee) and provide for the succession of another person to the office of
such executor or administrator who may cease to hold office, and for the vesting in
such person of any property belonging to the estate.

In the matter of an application for revocation of grant of the letters of administration

between Joseph Mniko and others versus Daud Mahende Kichonge[11], the high
Court revoked the grant of letters of administration of the estate of the late Faustine
Mniko Mahende to the respondent due to his failure to comply with the mandatory
provision of law regarding the administration of the deceased's estates namely S.107
of the Probate ad Administration of Estate Aft [ Cap 352 R.E 2002] which requires
among other things that an executor or administrator should exhibit in court an
inventory within six months from the date of the grant of probate and letters of
administration.

Laws governing probate and administration of estate in Tanzania

The law governing succession in Tanzania (Mainland) is diverse as are the

communities making up our society. There are four competing legal systems with
which a deceased’s estate may be administered especially when one dies without
leaving a will. These systems’ of laws are statute law, customary law, Islamic law and
Hindu law. The connecting factor to any of these legal systems gives rise to a problem
to internal conflict of laws leading to the question of choice of law in the distribution
of a particular deceased person’s estate.[12]

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LECTURE TWENTY NINE (CONFLICT OF LAWS ON

PROBATE AND ESTATE ADMINISTRATION)
CONFLICT OF LAWS ON PROBATE AND ESTATE ADMINISTRATION

The Law governing succession in Tanzania (Mainland) is diverse as are the

communities making up our society. There are four competing legal systems with
which a deceased estate may be administered especially when one dies without
leaving a Will. These systems of laws are Statute Law, Customary Law, Islamic Law
and Hindu Law. The connecting factor to any of these legal systems is ethnicity,
religious affinity or race. The multiplicity of legal systems gives rise to a problem of
internal conflict of laws leading to the question of choice of law in the distribution of
a particular deceased person's estate.[1]

1. Statute law

The relevant law is the Indian Succession Act of 1865 which was made applicable to
Tanzania by the Indian Acts (Application) Ordinance, Cap.2. Under section 24, a man
is considered to die intestate in respect of all property of which he has not made a
testamentary disposition which is capable of taking effect.[2]

There are two types of intestacy:

(i) Total Intestacy-

(a) Where a person dies without leaving a Will at all; or

(b) A person dies leaving a defective Will, for example, where the said Will is not
attested according to the law; or

(c) May occur by a Will be coming in - operative for example where a legatee
predecease the executor (intestacy on the beneficial interest but not as to a legal
estate).
(ii) Partial Intestacy - this may occur where only a part of the beneficial interest is
disposed of.

Where a person dies intestate such property devolves upon a wife or husband or upon
those who are of the kindred of the deceased. Succession to such an estate is affected
according to the following basic rules prescribed by the Indian Succession Act, 1865:

Section 27 provides that; “Where the intestate has left a widow, if he has also left any
lineal descendants, a of his property shall belong to his widow and the remaining b
shall go to his lineal descendants: ... if he has left no lineal descendants, but has left
persons, who are of kindred to him, one of his property shall belong to his widow, and
the other shall belong to those who are of kindred to him ... and if he left none who are
of kindred to him the whole of his property shall belong to his widow".

Section 28 provides that:

"Where the intestate has left no widow, his property shall go to his lineal descendants
or to those who are kindred to him but not being lineal descendants, according to the
rules herein contained; and where he has left none who are of kindred to him, it shall
go to the Crown (State)".

Section 29 and 30 provide that:

"The rules for the distribution of the intestate's property after deducting the widow's
share (if he has left a widow) amongst his lineal descendants, are; where the intestate
has left surviving him a child or children, but no more remote lineal descendants
through a deceased's child, the property shall belong to his surviving child. If there be
only one, or more shall be equally divided among all his surviving children".
The above rule also applies where the intestate is survived by no children but
grandchildren and great grandchildren. The deceased's father, mother, brothers and
sisters, inherit only where there are no lineal descendants surviving him. They share
half of the estate where there is a widow surviving. The husband surviving his wife
has the same rights in respect of her property, if she dies intestate, as the widow has in
respect of her husband's property, if he dies intestate.[3]

The Indian Succession Act, 1865 does not apply to the estate of a deceased Moslem. It
applies to Christians and all those of European origin. Illegitimate children are
excluded from inheriting their fathers' estate, but they may only inherit from the estate
of their deceased mothers. The main consideration in this Law is the welfare of the
deceased's immediate family members and dependants. The Law is more inclined
towards equality of division among the heirs of the same degree. It does away with the
distinction between male and female children of the deceased. They inherit equal
shares.[4]

2. Customary law

Customary Law may be defined to mean that law which is written, declared or
unwritten but is recognized by the community as having the force of law. It is
applicable to African members of the Community irrespective of their religious
affiliation. In Tanzania (Mainland) there are as many Customary Laws as there are
tribal groupings. The Customary rules of testate and intestate Succession are
embodied in the Local Customary Law (Declaration) Order (No.4) of 1963 and they
apply to all local Communities in the Districts where the declaration was specifically
extended. It is noted that these rules apply only to patrilineal communities which are
80% while matrilineal communities which are 20% in Tanzania (Mainland) are
excluded.[5]

The main heirs of the deceased estate are 10 in number; children (sons and daughters),
grand children, brothers, sisters and their children, father, paternal uncle and aunts,
husband or wife. Where the deceased leaves a son or sons and daughters, they will
inherit all of his property exclusively. Rules 27 and 28 provide that a widow has no
share in her husband's estate if there are issues of the union and the husband cannot
inherit from his wife who dies intestate, unless the wife left no children or any
member of her own family.[6]
Illegitimate children are excluded from inheriting their father’s estate, but they will
inherit from the estate of their mother who dies intestate. Furthermore illegitimate
children will only inherit if legitimized in the second degree if they are males and in
the third degree if they are females. However illegitimate children will also inherit
where there is a will of the deceased father.[7]

The presumption by the present laws on the applicability of Customary Law is that all
members of the African tribal Communities apply customary rules of
Succession/Inheritance irrespective of where they happen to be, places of origin and
their religious beliefs. More often than not this has given rise to conflict and therefore
choice of law applicable.[8] And the two tests regarding choice of law have been
established to harmonise the situation. The tests are;

1. The mode of life test; and

2. The intention of the deceased.

In deciding to apply state law or customary law, courts have been employing the
mode of life test to make that choice. This test finds its root in the Judicature and
Application of Laws Act, Cap.358. The case of RE INNOCENT MBILINYI, [1969]
HCD No.283 explains how this test has been applied by courts. The deceased was a
Ngoni married to a Chagga woman under Christian marriage rites. Both were staying
in Dar es Salaam. The deceased had left Songea when he was still of tender age, about
7 years. Innocent died intestate and the matter was brought before the High Court to
determine which law was to apply in the administration of deceased's estate. The
widow argued that statutory law should apply in administration of the deceased estate
so that she could benefit.

In the High Court, Georges, C.J. (as he then was) held that: "the deceased had
abandoned the customary way of life in favour of what may be called a Christian and
non-traditional way. There is satisfactory evidence that he was to a large extent
alienated from his family and that his children had no connection whatsoever with
them." Therefore statutory law was held to apply.
In the case of ABDALLA SHAMTE Vs MUSSA [1972] HCD N.9, a presumption
was made to the effect that in the case of an African living in the villages or rural
areas, the law applicable to the administration of his estates is Customary Law rather
than Statutory Law.

3. Islamic Law

Islamic Law is linked with the Mohamedan beliefs in that it is embodied in the Quran
Surat-l-Baqaro (S.II), Surat Nisaa (S.iv) and Surat-l-Maida (S.V) and is in no way
influenced by changes in the society. Majority of Muslims in this country are Sunni of
Shafii School of thought a Islamic Law is often equated or confused with customary
law, consequently giving rise to conflict of laws. There are conditions imposed by
statutory provisions in-order to determine at what point Islamic Law should be
applicable for a given deceased person's estate. Those conditions include marriage,
way of life, (what one professed and practiced at the date of his/her death) and the
intention of the deceased person at the time of his/her death as to the law to be applied
in the administration of his/her estate.[9]

Under Islamic Law, a non-moslem is not entitled to inherit the estate of a deceased
Moslem even where for example a Moslem is married to a non-moslem wife. A
Moslem cannot inherit from a non-moslem by birth. Illegitimate children have no
entitlement to inheritance.[10] When an African is also a Moslem, there is a problem
as to which law is applicable between Customary Law and Islamic Law. The tests
which are used in making the choices are the written, oral declarations acts intention
or manner of life of the deceased. This test is basically founded in the probate and
administration of estates Act [Cap.352 R.E.2002] which now incorporates the
provisions of the administration (small estates amendments) Ordinance, Cap.30 in its
part VII, provides the test for the application of Muslim law to the estate of a deceased
native Muslim.

Spry, J. in the case of HUSSEN MBWANA VS. AMIRI CHONGWE, Civil Appeal
No. 1 of 1963 (T) (unreported) stated that:
"I hold therefore there are two systems of law which may apply in African Muslims
Community, religious law in matters peculiarly personal such as marriage, and
customary law which may apply in all spheres of life."

Sir Ralph Windham added that,

it cannot be held that while the rights of an African Moslem wife at and during her
marriage are to be governed by Muslim law, her rights of inheritance upon her
husband's death are to be governed by her tribal custom, which may give her no such
rights.

4. Hindu Law

Hindu Law is the law applicable mainly to Wills of persons who profess the Hindu
religion. However the law applies in certain cases to those of such descendants who
have not abjured that religion.[11]

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LECTURE THIRTY (UNIT TITLES, CONDOMINIUMS

AND COOPERATIVES)
UNIT TITLES, CONDOMINIUMS AND COOPERATIVES

Introduction
Tanzania has recently witnessed gigantic changes in the nature or form of ownership
of land with the enactment of unit titles Act (UTA), 2008[1] together with its
regulations. I.e. Unit titles regulations, 2009.

Unit title owners own a defined part of a building, such as an apartment, and share
ownership in common areas such as lifts or drive ways. These changes of law have
brought some legal issues in the land registration Act that regulates registration of
interests in land in mainland Tanzania. It is the requirement of the Act that, if the
owner of a right of occupancy wants to have his title partitioned such a partition must
be done vertically and not horizontally. This position converges with the famous
common law maxim “CUJUS EST SOLUM EJUS USQUE AND COELUM” means
He who possesses the land possesses also that which is above it.

With this conception the division of any right of occupancy could only be effected
vertically to allow the holder thereof to hold the same upward to the sky. In this case it
can easily be stated that, land registration Act, should be amended to accommodate
the changes brought by the Unit titles Act.

The meaning of unit titles

Unit title is a type of property ownership where home owners own a defined part of a
building such as an apartment, generally known as a unit. They also have shared
ownership, as tenants in common, of common areas such as lifts, lobbies or
driveways.[2] Section 5 of the UTA, Unit property is defined to include a single
building or several buildings comprising a section of a unified project or site together
with all the land that is part of the property. The Unit property may be in a variety of
physical or structural forms of residential properties but the UTA lists four types: [3]

1. High – Rise Structures

2. Rows

3. Terraces

4. Buildings in Cluster forms

Other names for unit title are "stratum estate" or "strata title”. Unit Titles are termed
differently in different countries, for Example in UK is referred as Common Hold
while in USA, Canada and Dubai it is referred as Condo. In Tanzania we refer it as
Unit Title Property. Unit Title can be apartment blocks, townhouses and suburban
flats. They can be used for residential and commercial purposes, including office
blocks, industrial or retail complexes and shopping malls.
As a form of ownership, unit title is similar to other property in that it can be bought
and sold, or leased or mortgaged. But unlike other forms of title, it is made up of three
components:

 ownership in the particular unit

 an undivided share in the ownership of the common property
 an undivided share in the ownership of the units if the unit plan is cancelled

The unit owners own the common property as "tenants in common". This means that,
when a unit owner dies, the share of that owner passes to his or her estate and
therefore according to his or her will. This is in contrast with ownership as "joint
tenants", whereby an owner's share passes to the other owners if he or she dies. Each
owner's share in the common property is proportional to their "unit entitlement".

The Unit owner is assumed to own an undivided share of the common area known as
a “fractional share” which is equal to the relative size of his individual unit vis-à-vis
the area owned by others. Under Section 6(2) of the UTA the law defines how this
fractional share is determined:

“The relative size of each of the fractional shares with reference to the
aggregate of all the fractional shares shall be determined as the quotient of the
physical area of the co-owners Unit divided by the aggregate physical area of all
Units of the Property and the sum of all fractional shares shall equal one, after
rounding for minor discrepancies”

The determination of the fractional share is important as it forms part of the unit
owner’s property and, although undivided, it goes with the unit in all cases even in the
event of disposition. In this model each unit owner contributes to the maintenance of
the common property proportionate to the relative size of what he owns vis-à-vis the
other co-owners. The calculation of each individual owner’s obligation to the
Association is based on what is known under the UTA as the ‘unit factor’ defined as
“a proportional share of a common area as determined by the ownership of individual
units in the unit property”. Similar to ‘fractional shares’ the unit factor has the
purpose of determining the Unit Owner’s weight in the decisions of the Association
and, in addition, to determine his contribution to the funds of the association.[4]

Why Unit Title

  The first aim is to facilitate urban live hood and planning of towns. This
includes good residential infrastructures, access to shops and smooth running
of the business and easy access to offices. In one way this is indirect way of
reducing trafficking jams.
 It facilitate housing Finance such as Mortgage and Lease.
 It is easy and less expenses for government to organize and facilitate provision
of social services example sewage, electricity hospital etc.
 This is because under the unit title over 100 families for example people are
centred in one place therefore simple for provision of social service. This is
different from the current social-economic life whereby people are scattered
and each day the city is expanding, for example Dar es Salaam city; people
have extended up to Bagamoyo and other interior parts therefore it is hard
for the government to provide all the basic social services needed
 It is helpful to catch up with the designing, planning and archetype system; a
good example is taken from Dubai.
 The unit title property is supported by separate legislation and is often
preferred as a stronger or more definitive title in populated urban like Dar es
Salaam, Arusha, ,Mwanza and other growing cities.
 Property Management issues are controlled by the established by laws,
Constitution and association which is legally registered.
 Height limits of the building are easily managed because the developer of unit
title has to send the proposal for approval before the project.
 It gives individual ownership of the buildings and private open spaces, with
common ownership being limited to the nominated common areas, such as
driveways, play grounds, and air spaces above the units.

Solve your own legal issue cost effectively with these DIY document

Why the Unit Title was delayed to be introduced in Tanzania[5]

1. The laws were silence on the issue of Unit Title because of the common
law principles governing land law that is ad coelum rule (that ownership land is
below and up to the core above up to the sky ) and quicqud Plantatur solo, solo
credit (what is fixed to the soil belong to it ) . Therefore it was impossible for
someone to own Unit Title. Despite the introduction of the Unit Titles the land laws
are not in harmony and good changes are waited to sort out the anomalies.

2. The Land Registration Act [R.E 2002] (Cap 334) under Section 53 and
83 allows division and partition of the parcel to run vertically only. It was impossible
for the vendor to transfer or divide the parcel both vertically and horizontal something
which the Law under Unit Title allows.

3. And lastly under Section 22 of the Land Act which provide for the
incidence of the right of occupancy, the section was silent on the issue of Sub Title or
Unit Title ownership.

CONDOMINIUMS AND COOPERATIVE

Both condominiums and cooperatives are legal formats for "unit ownership", that is,
the ownership of a physically defined portion of a larger parcel of (usually improved)
real property. In the majority of cases, the "unit" is a residential apartment in a
multifamily housing project.[6]

The condominium

Condominium is defined as a single, individually-owned housing unit in a multi-unit

building. The condominium owner holds sole title to the unit, but owns land and
common property (elevators, halls, roof, stairs, etc.) jointly with other unit owners,
and shares the upkeep expenses on the common-property with them. Unit owner pays
property taxes only on his or her unit, and may mortgage, rent, or sell it just like any
other personal property.[7] The term can also be defined as a form of property
ownership involving multiple unit dwellings where a person owns his or her
individual unit, but the common areas are owned in common. All members share in
the costs and maintenance of the common areas. A perfect example of a condo is a
large apartment building where you own your individual apartment, but also share in
the maintenance of the building's roof, hallways, lobby, elevators, driveway,
landscaping, pools, fitness center, and other amenities.[8] Owners of condos receive a
deed for their unit just like if they bought a house. They also own their unit in fee
simple, which is the least restrictive form of real estate ownership recognized by law.
Just like owners of a detached home, a condo owner generally has the right to sell and
use the unit as they see fit, unless there are covenants restricting such use or transfer.
The main benefit of the condominium property model is that it allows a group of
individuals to share the greater benefits of cost sharing and cooperative management
over joint-property that if such assets were individually held and managed it would be
overly burdensome to any one individual.

What are the advantages of buying a condominium?

There are many advantages to condominium living. Some of these are:

1. It is more economical, generally, than comparable non-condominium

housing.

2. It enables people of moderate and middle incomes to own their own

homes.

3. It makes private ownership possible in areas where land values would

ordinarily make this too expensive.

4. It eliminates some of the problems of upkeep and maintenance often

associated with home ownership, since the cost of maintenance is shared and is
usually the responsibility of the condominium corporation through its property
management.

5. It allows ownership in a multi-unit property with each owner paying his

or her separate realty taxes and mortgage.

6. It gives the owners a right, in different ways, to participate in decisions

which affect their homes

7. Enhanced security features in some condominium units. You’ll also have

peace of mind while you’re on vacation knowing that your neighbours are close by.

Cons of Condominium Ownership

1. You may not be able to decide when maintenance and repairs get done

2. You may have to pay for amenities that you might never or rarely use

3. Less privacy in some condominium units and possibly more noise

4. Possibility of special assessment charges for unexpected repairs

5. Like most communities, a condominium attracts individuals with a

variety of personalities. It can sometimes be a challenge to reach a consensus

6. Less space in some condominium units

 7. Possible restrictions on things like noise levels, parking, pets, smoking
and even the style and colour of things like doors and window coverings

How to Develop Unit Title Property in Tanzania[9]

The Law and regulation provide for necessary steps and requirements for someone to
develop the Unit title. Section 4 of the Unit Title Act, provides the avenue for
developer to create units so that the real estate developed can be co-owned. For that
reason under the normal procedure if someone would like to develop Unit title
Property for the purpose of selling the units or mortgage the units the following steps
provided under the Unit title Regulation 2009 are vital;

 Application to the registrar for registration of Unit Plan, developer will fill
Form No 3
 Developer when applying for the Unit Plan has to make sure he attach the
following; a Certificate of registered Land Surveyor Form No 10A, a Certificate
from a Local government authority Form No 10 B and Certificate of a
registered Architect.
 The developer will proceed with the building process until it is done. When the
developer finishes the building he will advertise the Sale of each Unit if wishes
to do so.
 Application to the registrar of land to register each Unit, by Form No 4
 Issuance of Certificate of a unit Form No 5 which is same as Certificate of title
under the normal right of occupancy.
 Last stage is for owners to register their association and to employ Managing
Agent of the Unit property. Normally Managing Agent can be a Company
registered under Company Act.
 Having done with selling all the units and each Unit having its own Title, then
the developer is no longer liable or own the properties but rather the
association of the owner will be managing the properties by employing
professional person “ Managing Agent”

References

James R. W. (1967), Some Problems on Leases and Licences, 1967 E.A. L. J. 246
James, R. W. (1971), Land Tenure and Policy in Tanzania, East African Literature Bureau,

Nairobi, 1971.

Fimbo, G. M. (1992) Eassays in Land Law, Tanzania, printed by the Dar es Salaam University

Press, 1992.

Riddal, J. G. (1983), An Introduction to Land Law, Third Edition, Butterworths, London, 1983.

MEGARRY’s Manual of the law of Real Property, SixthEdition, Stevens & Sons, London,

1982.

Kjekshus, H. (1977), Ecology, Control and Economic Development in East African

History, The Case of Tanganyika, 1850-1950, Heinemann, London 1977.

Corry, H., (1955), Report on Nyarubanja System in Bukoba, 1955. Reining, Priscilla C.,

Glossary
Definition
Concept

Adjudication The process of authoritatively determining the

existing rights and claims of people to land.
Adjudication should not alter existing rights or
create new ones but instead should establish
what rights exist, by whom they are exercised,
and to what limitation.

Adverse possession Gaining access to land by acquiring legal rights

through possession for a prescribed period of
time.

Alien To convey or transfer unrestricted ownership

of something, usually land, from one person to
another.

Assignment A transfer, typically in writing, of right, title,

or interest in property (real or personal)
Convey/Conveyance The act (or documentation of the act) of
transferring legal title in a piece of property
from one party to another.

Customary tenure The tenure usually associated with indigenous

communities and administered in accordance
with their customs as opposed to statutory
tenure usually introduced during the colonial
periods.

Deed A written agreement conveying real

property (land) from one person to another, or
transferring title, in exchange for a specified
term called the consideration

Easement Right held by one property owner to make use

of the land of another for a limited purpose, as
right of passage.

Estate The degree and duration of an individual’s

interest in a tract of land. The type of estate
may have genealogical significance—see Fee
Simple, Fee Tail (Entail), and Life Estate.

Fee Simple Absolute title to property without any

limitation or condition; ownership of land that
is inheritable.

Fee Tail An interest or title in real property that

prevents the owner from selling, dividing, or
devising the property during his lifetime, and
requires that it descend to a particular class of
heir, typically lineal descendants of the original
grantee

Freehold Land owned outright for an indeterminate

duration, rather than leased or held for a
specified period.

Inheritance The right to transfer property to one’s heirs

Land administration The set of systems and processes for making

land tenure rules operational. It includes the
administration of land rights, land use
regulations, and land valuation and taxation.
Lease A contract conferring possession of land, and
any profits of the land, for life or a certain
period as long as the terms of the contract (e.g.
rent) continue to be met. In some cases the
contract of the lease may allow the lessee to
sell or devise the land, but the land still reverts
to the owner at the end of the specified period.

Mortgage A mortgage is a conditional transfer of

property title contingent on repayment of a
debt or other conditions. If conditions are met
within the specified period, the title remains
with the original owner.

Partition The legal process by which a parcel or lot of

land is divided between several joint owners
(e.g. siblings who jointly inherited the land of
their father upon his death). Also called a
“division."

Regularisation The process of bringing informal property

rights into a formal, legal system of land
administration. It usually includes the steps of
adjudication, titling and land registration.

Reversion The process used by some states to recover

property from a holder for reasons such as the
failure to pay property taxes or to use rural
land for agricultural purposes within a
stipulated time. Such property may be
allocated to new parties by the state. It is also
used to describe a lessor’s interest in the land
after the term of a lease has expired.

Tenure security The certainty that a person’s rights to land will

be protected.

Torrens System An alternative to the title-search approach

which guarantees good (indefeasible) title to
those titles registered in the system

Use right, usufruct The right to use the land. A holder of a use
right may not have the right to sell the
property, etc.
 References

James R. W. (1967), Some Problems on Leases and Licences, 1967 E.A. L. J. 246

James, R. W. (1971), Land Tenure and Policy in Tanzania, East African Literature Bureau,

Nairobi, 1971.

Fimbo, G. M. (1992) Eassays in Land Law, Tanzania, printed by the Dar es Salaam University

Press, 1992.

Riddal, J. G. (1983), An Introduction to Land Law, Third Edition, Butterworths, London, 1983.

MEGARRY’s Manual of the law of Real Property, SixthEdition, Stevens & Sons, London,

1982.

Kjekshus, H. (1977), Ecology, Control and Economic Development in East African

History, The Case of Tanganyika, 1850-1950, Heinemann, London 1977.

Corry, H., (1955), Report on Nyarubanja System in Bukoba, 1955. Reining, Priscilla C.,