Land as a Human Right: A History of Land Law and Practice in Tanzania

Chapter Four - Land Delivery Systems: Disposition of Land or Interests in Land

Chapter Four Land Delivery Syetems: Disposition of Land or Interests in Land … There is now no freehold tenure in Tanzania. All land is vested in the Republic. So land held under a right of occupancy is not a freely disposable or marketable commodity like a car. Its disposition is subject to the consent of the superior and paramountlandlordasprovidedintherelevantLandRegulations. - Court of Appeal of Tanzania -553 553 Nitin Coffee Estate Ltd and 4 Others v United Engineering Works Ltd and Another [1988] TLR 203 (CA). 134 LAND AS A HUMAN RIGHT This chapter discusses the process involved in the disposition or transfer of interest in land. Although the definition of disposition is very broad under the Land Act,554 the discussion in the chapter is confined to a few forms of disposition, namely, sale, lease and mortgage. Land Transfer by Sale Sale and the History of Sale of Land in Tanzania The term “sale” as used in relation to a right of occupancy means a transfer of an interest in or over land subject to the conditions attached to a granted right of occupancy555 . The term “sale” is often used interchangeably with other terms such as transfer or conveyance. As it is noted in Chapter Two above, the pre-colonial societies never knew the commercialization of land. Each member would access land and continue to occupy it as he needed it. The question of land being seen as a commodity in the market may, therefore, be traced along some historical developments. Before the new land law in the form of the two Land Acts, the holder’s power to dispose land by sale was customarily and statutorily controlled and, therefore, somewhat restricted. As regards control under customary law, the records show, for example, that there was clan control over the sale of the clan land556 under the natives laws of many, if not all, customary communities in Tanzania. That is to say, under the customary law, clan land was supposed to be sold to a clan member, and not to a stranger (non clan member). The occupier of a clan land could only sell the land to a non clan member if none of his clan member was able to purchase the land, and after seeking the consent and approval of the other clan members. It means that if a clan land was sold to a stranger without the consent of the clan elders, it stood to be redeemed by the owner or by any other clan member if the owner could not redeem it. The case of Nicolaus Komba v Kondrad Komba557 supports this fact. This kind of restriction was intended to promote social harmony by discouraging intruders from occupying clan land. Until today, 554 See section 2 of the Act. 555 The definition of the term is provided for under section 2 of the Land Act as amended by Land (Amendment) Act No.2 of 2004. 556 The concept of clan land was defined by Mwalusanya J (as he then was) in the case of Jibu Sakilu v Petro Miumbi (1993) TLR 75 (HC) to mean a “land that has been inherited successfully without interruption from the great grandfathers or from a grandfather by members of the same clan.” 557 [1988] TLR 172 (HC). CHAPTER FOUR 135 this remains the position of the customary law of the Haya because, according to Cory and Hartnoll558 , it is a rule that a man must inform his nearest paternal relatives before he undertakes any transaction over the land with an outsider559 , and that should the relatives concerned not be so informed then they have the right to invalidate the sale by bringing an action against the vendor, who must return the purchase price he received or allow his relatives to do so if he cannot get the money himself.560 Originally, the customary law required a legal action to nullify the sale to be instituted within three months of the date on which the relatives first heard of the sale.561 However this was later modified by the Customary Law (Limitation of Proceedings) Rules, 1963562 which provides for the limitation period to be 12 years563 . Statutory limitation, on the other hand, was at different levels depending on the nature of the land involved. To begin with, section 11 (1) of the Land (Law of Property and Conveyances) Ordinance564 provided that a disposition of land belonging to a native in favour of...