Tension between customary right of occupancy and granted right of occupancy by Johnson Yesaya

MEANING OF LAND

A word “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. This is provided under section 2 of  Land Act[1].

It can thus be noted that although land includes surface and subsurface, it does not include minerals such as Gold, Diamond, Tanzanite, Copper etc. The reason of this is somehow historical. At common law mines and minerals below the surface of the earth moved with the ownership of soil above except Gold and Silver which were vested in the crown by virtue of royal prepagative. In Tanganyika the colonial masters vested all mines and minerals in the state and that has been the trens to date.

Even after attaining her independence this concept was retained and all resources continued to be public property vested in president including minerals. With this interpretation however, land includes all that permanent attachment to the land. A building for instance cannot be taken in isolation from the land on which it is built and vise versa. For objects other than buildings their degree of attachment determines whether they form part of the land or not. As it has been observed above the degree of annexation and the purpose of annexation vital in deducing whether an object forms of the land or not.

Also, a term land has been defined by many other academia as follows;

       Land is any part of the earth’s surface not covered by a body of water ; the part of the earth’s surface occupied by continents and islands.

       In law we can define land as part of the surface of the earth that can be owned as a property, and everything annexed to it, whether by nature or by the human hands.

MEANING OF LAND LAW

It is a body of doctrines which govern the ownership of, commercial transfer and the use of land. It focuses on relationship 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. Ownership refers to the physical size of land owned or possessed. Interest include rights enjoyed by a person not the owner of land and are binding on subsequent holders or owners of the land eg leases, mortgage etc. Restrictions are the limitations or statutory regulation of certain forms of disposition of land or interests in land . The machinery of the law is how to deal with disputes over land (procedures). Land law therefore address all these aspects.

           There has been a confusing discussion about which is the best and most acceptable right of land occupancy between Customary Right of Occupancy ( CRO) and Granted Right of Occupancy ( GRO), There is a lot of provision (statute provision) and other laws which help to explain the matter of occupancy;

CUSTOMARY RIGHT OF OCCUPANCY ( CRO)

“ Means” a right of occupancy created by means of the issuing of a certificate of customary right of occupancy under section 27 of Village Land Act[2] and include deemed right of occupancy.

Deemed right of occupancy on the other hand means the tittle of a Tanzanian citizens of African descent using or occupying land under and in accordance with customary law. It can be acquired under customary law through inheritance, clearing a virgin land, gift, inheritance and held by villagers. It is important to be borne in mind that the tenure that applies in villages is customary tenure. Such tenure include rights allocated by village councils as it shall be dealt in this chapter and deemed rights which are not allocated by the village council. Such rights are more informed and can be acquired through the means stated above. A discussion on the application procedure will thus forcus on the rights granted by the village council as the custodian of village land and not deemed right of occupancy one may however decide to obtain a certificate of customary right of occupancy for this deemed right. Customary Right of Occupancy is provided under section 2 of Village Land Act[3].

In Tanzania, Customary Right of Occupancy is the right of ownership of land under Customary law. A person can inherit land from his father, and he can be owner of that land according to the customary laws. Also we have a term called customary land, This is the land which is owned by indigenous community and administered in accordance with their customs, as opposed to statutory tenure usually introduced during the colonial periods. Common ownership is one form of customary land ownership.

GRANTED RIGHT OF OCCUPANCY

In Tanzania “granted right of occupancy” means, a right to own land according to national law and statute provisions. Such rights are granted rights of occupancy and derivative rights. Both rights are available to non- citizens individually or where they form majority in the shareholders of a body of cor-poration provided such grant is for investment Act 1997. The law also provide room for partial transfer of interests by a citizen for purposes of investment approved under the Tanzania investment Act, 1997 in a joint venture to facilitate compliance with development conditions. Non citizen can not be allocated a land for any other purpose than investment. If an application for a right of occupancy or derivative right, which is made by a non citizen or a foreigner company, is for residential purposes, use of such land shall be secondary or ancillary to the investment approved under the Tanzania investment.

PROCEDURES OF GRANTED RIGHT OF OCCUPANCY

Granted right of occupancy is provided under section 24 of Land Act[4], also provide a lot of procedures to be followed to acquire granted land as follows,

     1.Application for a right of occupancy shall be: ( submitted on prescribed form and accompanied by a photography ) accompanied by the prescribed fee, signed by the applicant or a body authorized representative or agent of the applicant, sent or delivered to the commissioner or an authorized officer, contain or be accompanied by any information which may be prescribed or which the commissioner may in writing require the applicant to supply;

     2.The commissioner may require an applicant to submit information relevant to that application, additional to that already submitted with the application, and shall not be obliged to determine the application until that additional information has been submitted or a satisfactory explanation provided as to why it is not practical or possible to submit that additional information and other procedures.

     3.where application is for a right of occupancy in reserved land , the commissioner shall refer that application to the official or the public body having jurisdiction over that reserved land and shall take account of any representations that such official or such public body shall make on that application.

    4.where an application is for a right of occupancy the development of which in accordance with the application will have, in the opinion of commissioner, a substantial effect on the activities and services provided by the local authority in the area where the land the subject of the right of occupancy is situate, the commissioner shall refer that application to that local authority and shall take account of any representations made by that local authority on that application.

     5.Any official to whom or public body or local authority to which an application is referred under subsection (3) or (4) may make any such representations on that application within twenty days of the receipt of that application.

     6.The commissioner shall maintain a register of applications in the prescribed form which shall be available to inspection by the members of the public at reasonable times during office hours.

STATUS OF GRANTED RIGHT OF OCCUPANCY

The incidents define the granted rights of occupancy as to be granted by the president, in general or reserved land, of the land which has been surveyed, has to be registered under the land registration Act[5] to be valid and indefeasible, for a period of up to but not exceeding 99 years, at a premium, for an annual rent, subject to conditions, liable to revocation and liable to compulsory acquisition by the state for public purposes subject to the prompt payment of compensation. The granted right of occupancy does not confer water rights, rights over the forest, foreshore, mineral rights, and the rights to extract gas.

TENSION BETWEEN CUSTOMARY RIGHT AND GRANTED RIGHT OF OCCUPANCY

A customary right of occupancy is in the every respect of equal status and effect to a granted right of occupancy. This is provided under section 18(1) of the Village Land Act[6], This provision equalize between customary right of occupancy and granted right of occupancy,

It is worth noting that a customary right of occupancy is in every respect of equal status and effect to a granted right of occupancy and is;

1.      Capable of being allocated by a village council to a citizen, family of citizens, a family of citizens, a group of two or more citizens whether  associated together under any law or not, a partnership or a corporate body the majority of whose members or shareholders are citizens.

2.      In village land or reserved land

3.      Capable of being of indefinite duration

4.      Governed by customary law in respect of any dealings, between persons residing in or occupying and using land.

5.      Is subject to any conditions which are set out in section 29 or as may be prescribed and to any other condition which the village council having jurisdiction over that land shall determine.

6.      It may be granted subject to a premium and an annual rent, which may be varied from time to time.

7.      It is capable of being assigned to a citizen or a group of citizens, having a residence or place of business in the village where the land is situate, or a body corporate the majority of whose share holders or members are citizens having a place of business in that village.

The following cases decided by court, help to prove the equality of the two rights of occupancy ( Granted Right of Occupancy and Customary Right of Occupancy).

National Agricultural and Food Corporation vs Mulbadaw Village Council and Others.[7] In this case about 26,000 acres of land in the Basotu Ward, which  land included the area in dispute between the litigants, was occupied by the Kilimo Dept. from 1968-1969.   Nafco succeeded to the land occupied by Kilimo and entered into occupation of it in 1969, the area being reduced to 22790 acres.  Nafco was offered a Right of Occupancy over the said 22790 acres in January, 1973 for 99 years. But Nafco had occupied the land in dispute from 1969 onwards, although no wheat was planted until 1979. The first plaintiff, Mulbadaw Village Council and another 66 villagers all of the same area, in the Basotu Ward, Hanang District, had filed a case in the High Court against the National Agricultural and Food Corporation (hereafter called Nafco) claiming general and special damages for trespass by Nafco over their lands and destruction of  crops and huts.  The High Court awarded the 1st plaintiff Shs.250, 000/- as general damages and all the other. plaintiffs a global sum of Shs.1,300,000/- as general damages and a sum of Shs.545,600/- as special damages to all the villagers.  The Judge also made a declaration that the area of 8125 acres in dispute belongs to the plaintiffs as claimed and ordered Nafco to cease its trespass forthwith.  Nafco appealed.

The court stated that;

…an administrative unit did not necessarily imply that the land within its administrative jurisdiction was land belonging to it. The village council could acquire land only by allocation to it by the District Development Council under direction 5 of the Directions under the Villages and Ujamaa Villages (Registration, Designation and   Administration) Act, 1975..…those villagers who had testified had customary tenancies or what are called deemed rights of occupancy…had to establish that they were natives before a court could hold that the were holding land on a customary tenancy.  The 4 villagers had not established that they were in occupation on the basis of customary tenancies. They were thus not "occupiers" in terms of the Land Ordinance.

Metthuselah Paul Nyagwaswa vs Christopher Mbote Nyirabu.[8] In this case the appellant had purchased an un-surveyed piece of land held under customary law. The sale was approved by the CCM chairman and ward secretary.  The peace included the land under dispute.  Subsequently the respondent obtained a right of occupancy over the disputed land.  Before the respondent could build thereon the appellant started to build on it claiming that he was the rightful owner of the land. He prayed for an injunction to restrain the appellant from entering or remaining on the said plot and for damages.

The High Court gave judgment in favor of the respondent with costs.  It found that the respondent was the legal owner of the disputed Plot and that the right of occupancy issued to the respondent was obtained legally and without fraud. The appellant had trespassed on the respondent's plot and that the right of occupancy issued to the respondent extinguished all prior rights and interests of the appellant in the said plot.  It awarded damages to the respondent in the sum of Shs.287, 200/=. The appellant appealed.

The Court of Appeal had the following to say that… under the Land Ordinance there were two system rights of occupancy. One is created by a direct grant of public land by the President in terms of section 6 of Cap 113, the other one is that of a person holding land in accordance with native law and custom.…right of a holder of a right of occupancy by virtue of native law and custom was not extinguished and he thereby becoming a "squatter" on an area being declared a planning area.…the appellant's interest in the land which derived from native law and custom, was not compulsorily register able, and by virtue of section 33 (1) (b) of Cap 334 the right of the respondent vis-a-vis the appellant was not indefeasible and unimpeachable in the circumstances… rights to land  held in a registered village could only be transferred with the approval of the Village Council... the sale to the appellant, for lack of approval, was void and of no effect.  The appellant had not acquired any right or title to any land.  There was thus no right to be extinguished.

In Suzana Kakubukubu and Two Others vs Walwa Joseph Kasubi and The Municipal Director of Mwanza[9] the plaintiff held about 5 acres of land under the deemed right of occupancy. Due to poor health she invited relatives to live on it while she was staying in Dar es Salaam. In 1984, a survey was done on the piece of land resulting in two farms - Farm 2 and Farm 3. While Farm 2 was allocated to the plaintiff, Farm 3 was allocated to the first defendant. Compensation in respect of Farm 3 was worked out and paid to those who were occupying it. Later the plaintiff came to know about the survey and allocation of Farm 3 to the first defendant. She, joining her children, sued the first defendant and the Municipal Director of Mwanza arguing that they were the lawful owners of Farm 3    notwithstanding the compensation paid to third parties for the un-exhausted improvements. 

The Court held that…the first plaintiff had a deemed right of occupancy over the  land in dispute in terms of section 2 of the Land Ordinance, Cap 113, before the survey, as she had inherited it from her father…a deemed right of occupancy was not extinguished upon an area being declared a planning area...the Tanzania law on Land and Land Tenure would have to await the necessary legislation… deemed right of occupancy was surrendered upon  payment of the compensation.

In Mwalimu Omari And Another. vs Omari A. Bilali[10] the appellant Mwalimu Omari occupied unsurveyed area at Magomeni.  It was later on surveyed and it formed two plots; Plot No. 60 and Plot No. 61. Plot No. 61 was given to Mwalimu Omari. Before the plot got surveyed Mwalimu Omari had given the area (now Plot 60) to his in-law (name not given in the record) who in turn sold it to the first defendant Ahmed Banguo. Banguo, however occupied this unsurveyed land which had nothing except for a toilet and some little cassava. So, when the area got demarcated into two plots, Plot No. 60 and Plot No. 61, Mwalimu got Plot 61 and the plaintiff was offered Plot No. 60. Dissatisfied with allocation Mwalimu Omari went to court.

The Court held that… when an area has been declared to be township or minor settlement, title under customary law, and the granted rights of occupancy cannot co-exist. Title to urban land depends on grant.…once an area is declared an urban planning area, and land is surveyed and given plots, whoever occupied the land even under customary law would normally be informed to be quick in applying for rights of occupancy. If such person sleeps on such a right and the plot is given to another, the squatter, in law, would have to move away and in law, strictly would not be entitled to anything.

In 1992 the Regulation of Land Tenure was enacted to provide specifically for extinction of customary tenure[11]  without compensation[12]  and ousted the jurisdiction of courts.[13]

In the case of Attorney General v Lohay Akonaay and Joseph Lohay[14] the respondents, father and son, had acquired land rights under customary law recognized as deemed rights of occupancy under section 2 of the Land Ordinance (Cap.113) over 20 acres in Mbulu District, Arusha Region, which they had cleared in 1943. They occupied and used the land until they were dispossessed during 'Operation Vijiji' under the Villages and Ujamaa Villages Act, 1975. They successefully sued for the recovery of that land and regained possession of it in 1990 under a Court decree. An appeal against that judgment was still pending in High Court when the Regulation of Land Tenure (Established Villages) Act, 1992, was passed. The effect of this Act was to extinguish customary rights in land acquired before 'operation Vijiji' in 'an established village', to prohibit the right to compensation for such extinction, to oust the jurisdiction of the courts, terminate relevant court proceedings and prohibit the enforcement of any relevant court decision. Proceedings under the 1992 Act were to be instituted only in local land tribunals. The respondents then petitioned the High Court alleging breaches of their fundamental rights and obtained a declaration from the High Court that the 1992 Act was invalid for inconsistency with the Constitution in that its provisions violated the petitioners' rights of equality before the law, of freedom from deprivation of property without fair compensation, and of access to the courts to protect their rights.

The Court ordered the offending Act to be struck out of the statute book. The Attorney General appealed to the Court of Appeal on the grounds that these holdings were erroneous, that customary land rights were not forms of property protected by the Constitution and that although certain sections of the 1992 Act violated the Constitution the whole Act could not be invalidated on that ground alone.

The Court said that “the historical background shows that the overriding legal concern of the British authorities, no doubt under the influence of the Mandate of the League of Nations and subsequently of the Trusteeship Council, with regard to land, was to safeguard, protect, and not to derogate from, the rights in land of the indigenous inhabitants. This is apparent in the Preamble to what was then known as the Land Tenure Ordinance, Cap 113 which came into force on 26 January, 1923. The Preamble reads: 

      'Whereas it is expedient that the existing customary rights of the natives of the Tanganyika Territory to use and enjoy the land of the Territory and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves their families and their posterity should be assured, protected and preserved;

      And whereas it is expedient that the rights and obligations of the Government in regard to the whole of the lands within the Territory and also the rights and obligations of cultivators or other persons claiming to have an interest in such lands should be defined by law. Be it therefore enacted by the Governor and Commander-in-Chief of the Tanganyika Territory as follows....' ”

The Court of Appeal held inter alia that;

… customary or deemed rights in land, though by their nature are nothing but rights to occupy and use the land, are nevertheless real property protected by the provisions of art 24 of the Constitution. It follows therefore that deprivation of a customary or deemed right of occupancy without fair compensation is prohibited by the Constitution. The prohibition of course extends to a granted right of occupancy. What is fair compensation depends on the circumstances of each case. In some cases a reallocation of land may be fair compensation. Fair compensation however is not confined to what is known in law as unexhausted improvements. Obviously where there are unexhausted improvements, the constitution as well as the ordinary land law requires fair compensation to be paid for its deprivation. Where there are no unexhausted improvements, but some effort has been put into the land by the occupier, that occupier is entitled to protection under Article 24(2) of the Constitution and fair compensation is payable for deprivation of property…the section of the law that purported to exclude access to the courts was unconstitutional.

Generally, both Customary Right of occupancy and Granted Right of Occupancy are considered the same by the law, this can be proved by the provision as per section 18(1) of the Village Land Act no 5 cap 114 of 1999, which provide that, customary right of occupancy have all respect the same as granted right of occupancy.

                                                           BIBLIOGRAPHY

STATUTES

LAND ACT NO 4, CAP 113 OF 1999 AND IT’S AMENDMENTS

VILLAGE LAND ACT NO 5, CAP 114 OF 1999 AND IT’S AMENDMENTS

BOOKS

DR. W R Tenga and Mr. Sist J Mramba, Manual on Land and Conveyancing in Tanzania, 2008

James R. W and Fimbo G.M Customary Land Law of Tanzania: A source Book (1973) at 302

Middleton J. Land Tenure In Zanzibar ( Colonial Research Studies No. 33 publisher, Her Majesty’s Stationary Office, (1961) at 16

Land Tenure System and Land Reform In Zanzibar (1830-1979) MA, UDSM (1978) at 20

Onalop, Land Law and Conveyancing In Kenya, Heinermann Law Books Nairobi (1986)

WEBSITES                                                    
http;//www.thestudentroom.co.uk.                                http;//en.wikipedia.org/wiki/unitary_state.                                                  http;//www.room85.com                                                                                       http;//wiki.answers.com.

---

[1] Land Act no 4 of 1999

[2] Village Land Act, No 5 Cap 114, 1999

[3] Village Land Act No 5, Cap 114 of 1999

[4] Land Act No 4 Cap 113 of 1999

[5] Land Registration Act, Cap 334

[6] Village Land Act, No 5, Cap 114 of 1999

[7] (1985) TLR 88

[8] (1985) TLR 103

[9] (1988) TLR 119

[10] (1990) TLR 9

[11] The Regulation of Land Tenure (Established Villages Act) section 3

[12] Ibid section 4

[13] Ibid section 5

[14] (1995) TLR 80