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Land according
to The Land
Act includes 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.
Customary land is land
which is owned by indigenous communities and administered in accordance with their customs, as opposed to statutory
tenure usually introduced during the colonial
periods.
Land tenure is the
name given, particularly in common law systems, to the legal regime in
which land is
owned by an individual, who is said to
"hold" the
land.
Customary land tenure refers to
a system of
holding land through
customary laws, it
is how land
is held.
In practice, customary land holding systems are popular
amongst the population since pre-colonial era, colonial era and
even after independence particularly away from
the towns. Within
the land office practice, however, recognition of customary right of occupancy is doubtful.
As stated before, customary right of occupancy (customary land tenure) is doubtful.
This can be proved
on how courts
of
law address the customary
land tenure. As long
as the customary land
tenure is concern
the following are five (5) remarkable court
decisions on how
courts of law
addresses customary land
tenure;
Firstly,
the case
of Mwalimu Omari
And Another v
Omari A. Bilali,
(Brief facts of
the case) At Magomeni there was an
area
which, at first,
for sure had
not been surveyed.
Mwalimu Omari occupied
this area (he
occupied the whole
of it). Thereafter
he gave the
portion of land
to his in-law
who in turn
sold it to Ahmed Banguo
(the 1st defendant)
Then, somehow it was decided by whatever
official it was to survey
this area. So
the area got surveyed and two
plots came out of it; Plot No. 60 and Plot
No. 61. Plot No. 61 was given to Mwalimu Omari
and the plaintiff
was offered Plot
No. 60. Facts indicates
that Mwalimu Omari and
Ahmed Banguo, occupied this unsurveyed land under the
so called customary
land tenure. Mwalimu Omari, it appears had wished the plot
to have been given to Banguo, therefore sued
to recover the plot
of land given
to the plaintiff(who
by that time
had been granted
a title/documents issued
by the Ministry
of land to
occupy the conflicting
plot of land).
The learned
magistrate decided on
favour of the
plaintiff on the
basis that(inter alia) squatters in
the eyes of
the law cannot
equate themselves to
any person holding
a title under
right of occupancy
even where the
squatter occupies land
under customary law.
As long as
Mwalimu Omari’s case
is concern, I
am of opinion
that courts of
law consider the
customary right of
occupancy inferior to the granted right
of occupancy and
where the conflict
between the customary
right of occupancy
and the granted right of occupancy arises, the
granted right prevails
over the customary
land tenure.
Secondly; the
case of Attoney General
v Lohay Akonaay
And Joseph Lohay
(Brief facts of
the case) ; The respondents (Lohay Akonaay
and Joseph Lohay),
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
of 1975. They
were allocated another
piece of land
within the same
village. The respondents were
apparently not satisfied
with this reallocation
and it was
for the purpose
of recovering their
original piece of
land that they
instituted the legal
action before the
court.
In this
case the court
inter alia held
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
provisions of the
constitution; therefore deprivation of
a customary or
deemed right of
occupancy without fair
compensation is prohibited
by the constitution. Under this
case the court recognizes customary land tenure (customary rights
of occupancy) and
addresses that such
rights must be
adhered to. When arguing
the case The
learned Trial Judge
stated that “I have already
noted earlier on that
the petitioners legally
possess the suit land under
a customary land tenure
under section 2 of the Land Ordinance CAP. 113.
They have not in this application sought any special
status, rights or
privileges and the
court has not
conferred any on the petitioners. Like all other law abiding
citizens of this country,
the petitioners are equally
entitled to basic human
rights including the right
to possess the deemed rights of occupancy
they lawfully acquired pursuant
to article 24(1) of
the Constitution and section
2 of the Land
Ordinance, CAP 113”.
Thirdly; the
case of Metthuselah Paul
Nyagwaswa v Christopher
Mbote Nyirabu;
(Brief facts of the case) In this case
the appellant had
purchased an unsurveyed
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 favour
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
(including the
customary right of occupancy) and interests
of the appellant in
the said plot.
Fourthly; the
case of Suzana Kakubukubu
and Two Others
v Christopher Mbote
Nyirabu and The
Municipal Director of
Mwanza. (Brief
fact of the
case) 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 Dares 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 (Mr. Christopher Mbote
Nyirabu). 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
unexhausted improvements. One of
the
strongest issues argued in court
was whether or not payment of compensation
for
unexhausted
improvements to the holder
of a deemed
right of occupancy
or his agent
or representative extinguishes that right.
In this
case the court
held that payment
of compensation to a holder of a deemed right of occupancy
(customary land tenure)
or to his agent or
to his representatives extinguishes that right.
Again the court
in this case
prove that the
so called “deemed
rights of occupancy”
is inferior to the granted
rights of occupancy.
Lastly; the
case of National Agricultural
and Food Corporation
v Mulbadaw Village
Council and Others. (Brief
fact of the
case) ; In this
case it was
stated before the
court that about
26,000 acres of
land in the
Basotu Ward, in
Hanang District which
land included the
area in dispute
between the litigants,
was occupied by
The Kilimo Department
from 1968-1969. The
National Agricultural and
Food Corporation (hereafter
called 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
NAFCO claiming general
and special damages
for trespass by NAFCO over
their lands and
destruction of crops
and huts. The
High Court awarded
the first 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.
In this
case (During appeal
stage) upon failure
of 4 villagers
to establish that
they were in
occupation of the land (land in dispute)
on the basis
of customary tenancies
the court inter alia
held that 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.
Conclusive Remarks
Most of
us believe as
in faith that
we still hold
land on the
so- called customary land
tenure. We do
not wish to
accept the fact
that our population
is fast urbanizing
and fast doing
away with tribal
customs and traditions.
But it is increasingly becoming
apparent that we
cannot have customary
land tenure system
in urban areas.
Though recognition
of customary land
tenure is questionable, many
Tanzanians (particularly those
who resides in
rural areas) are
still holding land
in customary rights
of occupancy because
until now there are
just few granted
rights of occupancy
given to people
resides in rural
areas.
Furthermore; most
of our land
is not yet
surveyed, not only
rural areas which
are almost not
yet surveyed but
also some of
urban areas (municipal
and District land)
are not yet surveyed too.