28 Customary Land Law in Tanzania

Deemed right of occupancy - detailed notes – Dr.
RWT
Page 1 of 154
2.2 THE DEEMED RIGHT OF OCCUPANCY
2.2.1 INTRODUCTION
(a) Definition – S.2(1) Cap.113

(b) Application of Customary Law
Cases: 1. MTORO BIN MWAMBA v. AG. (1952) 2

TLR 327
2. MUHENA BIN SAID v. REGISTRAR OF

TITLES (1949) 16 EACA 79
3. METHUSELAH PAUL NYAGASWA v.

CHRISTOPHER MBOTE NYIRABU Civ.
App. No. 14 of 1988
4. MOHAMED NYAKIOZE v. SOFIA D/O

MUSA (1971) HCD n. 413
5. NAFCO v. MULBADAW VILLAGE

COUNCIL & ORS C.A.3 OF 1980
Statutes: S. 9 JALO, 1961.

S.37 MCA, 1964
Cf; Land Act 1999 (#4/99)
Village Land Act 1999 (#5 /99)
Deemed right of occupancy - detailed notes – Dr. RWT
Page 2 of 154
Circulars: Govt. Civ. No. 12 of 1941

Govt. Civ. No. 4 of 1953
Articles: A. A. Oldaker “Tribal Customary Land Tenure

in Tanganyika” 47/48 TNR 117 – 144 (1957)
2.2.2 LIMITATION ON THE APPLICATION OF

CUSTOMARY LAW IN LAND
A. Urban Land
A. Land Registered Under cap. 334
B. Flora/Fauna Conservation
B. Preserved/Specified/Planning Areas
C. Land alienated for Village Councils
2.2.3 ACQUISITION OF LAND RIGHTS AT CUSTOMARY

LAW
2.2.4 RECENT DEVELOPMENTS

Page 3 of 154
6.1 ACQUISITION OF LAND AT CUSTOMARY LAW
(J & F. Part IV, Chpt. X-XV)
In the classic case of MTORO BIN MWAMBA V. A.G. (1952) 2TLR

327 an expert witness, one Hija bin Pembi, claimed that there were only
three modes of acquiring land “all over Tanganyika even among the
Pagans”. He told the Court:
There are three ways of acquiring ownership in Land: (1) by

cultivation (2) by purchasing and (3) by inheriting from one’s
elders. Nobody’s permission is necessary in order to acquire
ownership by any these three ways. (j & F p. 15 and p. 295).
Today matters are more sophisticated. Anthropological studies have

reported a diverse complex of customary tenures, ranging from strict
communal to increasingly individualistic. These provide for various
methods of land acquisition.
James and Fimbo list various modes of land acquisition and these include
– (1) clearing virgin land (forest, bush, etc) – (2) allocation by local
authorities – (3) purchase, (4) gift.
They introduce other novel modes of land acquisition such as (5)

customary foreclosure which includes therefore acquisition by way of
mortgage (J & F p. 314; also # Jacob Tibifukula v. David Justimia
(1968) HC n. 134). Other modes are by way of (6) judicial recognition
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(e.g. Judicial Sales, J & F pp. 330-358), and (7) statutory recognition
(e.g. enfranchisement in Tanzania an Land adjudication in Kenya – see J
& F pp. 365-380 for Tanzania’s case). Finally they discuss (8)
inheritance in a separate part (J & F pp. 165-292). Concepts of
“Prescriptive Title” in judicial decisions and statutory limitation have
played their role in granting right of use to otherwise trespassers.
Writers such as James and Fimbo (see Chpt. 10) claim that in earlier
times permanent rights over land could not be acquired by purchase or
similar means since:
i) there was no scarcity of land;
ii) the pattern of cultivation was shifting and was done

essentially for subsistence.
[An argument that could be fairly controverted see: Helge

Kjekshus, Agricultural Patterns and Systems. Fimbo/76/13. He
indicates that the Customary Pombe Party, large Dowries, etc.,
never indicated a subsistence kind of existence – in so far as it
means bare survival – normal surplus was usually produced in
agricultural communities].
James and Fimbo claim that landed rights which were the basis of
exchange through sales came about with:
i) the introduction of permanent crops which do not mature for

several years.
Page 5 of 154
ii) The commercialization of agricultural production (coffee,

coconuts, bananas, sisal, etc.)
iii) The improvement of more durable buildings (non “mbavu za

mbwa” kind of structures).
iv) The increase of population in some areas led to land scarcity

due to overpopulation and alienation by way of sale gained
credence over time, e.g. Chagga and Haya.
The improvement thing to note from James and Fimbo’s discussion is

that no single factor worked alone. Permanent crops have not been a very
recent innovation. The interlacustrine areas have been based on the so-
called “banana culture” deriving this characteristics from the perennial
banana plant. In the coastal areas coconut growing has had a long
tradition. But whilst in Bukoba and Moshi the tendency was to
individualise land over time the same did not happen in the coastal areas.
What appears to be primary is the second point which James and Fimbo
do not seem to emphasise. That is,
commercialisation/exchange/commoditization was the basic process
which brought about increasing exchangeability of land and its
marketability. The march of the capitalist mode of production since pre-
colonial times has increasingly individualised the tenure conditions; and
market oriented modes of acquiring land have increasingly become
prominent.
Page 6 of 154
Within the capitalist mode all the factors of production are commoditized.
Land is not an exception. Sales and mortgages are part of the market
system. The Tanzanian peasants though formally holding land under the
supposedly communal land tenure are producing their agricultural
products under capitalist laws of motion, consequently, market forces,
affect proprietary, interests with regard to land.
We shall consider each mode of acquisition briefly.

Page 7 of 154
SECTION 5
ALIENATED LANDS: LIMITATIONS ON THE APPLICATION
OF CUSTOMARY LAW
Readings:
1. James, R.W., Land Tenure and Policy in Tanzania, pp.

95-112
2. James, R.W. & Fimbo, M.G., Customary Land Law of

Tanzania: A Source Book (EALB, 1973) Chpt. 2 pp 30-
64.
3. Japhet, N.K. and Seaton, E., The Meru Land Case (EAPH,
1967)
4. Wright, I.M.: “The Meru Land Case” (1966) TNR 137.
Statutes:
1. The Land Ordinance, Cap. 113 S. 2, 3
2. Town and Country Planning Ord. Cap. 378.
3. Township Ord., Cap. 101
4. Minor Settlements Ord. Cap. 102

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5. Land Acquisition Act, 1967 (No. 7 of 1967)
6. Public Land (Preserved Areas) Ord. Cap. 338 (1954 No. 12)
(as amended by Act No. 28 of 1965).
7. Forests Ord. Cap. 389 (1957)
8. Fauna Conservation Ord. Cap. 302 (1951)
9. The Local Government (Urban Authorities) Act, 1982,

No. 8 of 1982 [Under S. 110 repeals the Urban Counsels
(Interim Provisions) Act, 1978 (11); Urban Wards
(Admin) Act, 1976 (10), Municipalities Ord. Cap. 105].
Cases:
1. Abdallah Chapila v. Mwinyigoha & Ors. (1965) LCCA

D/30/65 in James & Fimbo, pp 54-64
2. Mohamed Nyakioze v. Sofia d/o Musa (1971) C.A.

D/89/71.
3. Peter Mashauri v. R. in J & F, p. 47.
4. James Bita v. Idd Kambi (1979) L.R.T. n. 9.
1. GENERAL STATUS OF ALIENATED LAND

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The history of alienation of land by the government from its lawful

owners has a long history. In the colonial days the Germans used
outright force, tricks, and legislation to effect alienation. The
British used statues to achieve the same. The Land Ordinance,
according to Lyall, was so worded that the colonial state could
alienate land belonging to natives almost at will.
The history of the definition of the Right of Occupancy as provided

by Section 2 of Land Ordinance confers a deemed Right of
Occupancy on a native or native community lawfully “using or
occupying land in accordance with native law and custom”.
There has been extensive controversy concerning the exact nature

of the deemed Right of Occupancy. The tenure structure of such a
right is solely determined by Customary law.
It appears that the rather vague definition of the African’s tenures

was a deliberate act on the part of the colonial state. Even the
courts aided in conforming the imprecise nature of African titles.
On the nature of this deemed right of occupancy in this regard
James notes:
Its nature is a matter of conjecture for the decisions of

the courts during the colonial era postulate that unless a
grant can be provided, a customary-law title gives no
more than permissive occupation to the inhabitants of
Tanzania (p. 97)
Page 10 of 154
These decision are MUHENA BIN SAID v. REGISTRAR OF

TITLES (1949) 16 E.A.C.A. 79 and Mtoro bin Mwamba v. A.G.
(1952) 2 TLR 327. Due to this kind of interpretation, i.e. the
Deemed Right of Occupancy is merely permissive. The 1953
Circular tried to provide a comprehensive statement on the status
of land occupied by Africans. (See para 10 of the Circular). In the
case of land alienation the circular re-emphasized the need to
consult native authorities before the exercise is carried out. This
was basically followed the spirit of the 1950 amendment of the
Land Ordinance whereby S. 6(1) of the Ordinance was made to
read:
6(1) The President may, where it appears to him to be

in the general interests of Tanganyika, grant
rights of occupancy: Provided that before any
such grant is made of any public land in an area
over which a native authority has been
established, such native authority shall be
consulted. (See Ord. 5 of 1950)
On this statutory duty to consult the 1953 Circular reiterated under

its para 9:
It must, however, be understood that this obligation to

consult the Native authority does not imply an
obligation to obtain its consent before the allocation of
land is recommended, although it goes without saying
that the views of the Native Authority would receive the
Page 11 of 154
fullest consideration by the Governor and only in

exceptional circumstances would land be “alienated” in
the face of opposition by the Native Authority and then
only with the approval of the Secretary of State.”
This directive had the effect that a statutory duty to consult was not
taken as an obligation to obtain consent, thus making the interests
of the colonial state superior. Paradoxically, this provision is still
included in the Land Ord. notwithstanding all the amendments
since independence. Furthermore, the MERU LAND CASE (see:
Japhet & Seaton The Meru Land Case (EAPH, 1967) and Wright
“The Meru Land Case” (1966) T.N.R. 137) indicated clearly that
British interests were superior and native rights could be
disregarded at any time. The Meru were forced by the colonial
government to move from their land in the early 50’s despite
opposition from Native Authorities. Hence Lyall’s oft quoted
observation is pertinent that:
One cannot escape the conclusion that the Land

Ordinance was an exercise in cynicism, appearing to
grant rights to the African population over their land
while in reality vesting complete legal control in the
colonial administration. Any actual security that the
Africans had was a result of the colonial Government
adopting a policy of exploitation by means of peasant
cultivation, a policy adopted due to political and
economic, not legal considerations”. [A.B. Lyall, Land
Page 12 of 154
Policy in Tanganyika 1919-1932, LL.M dissertation.

UDSM, 1973, p. 12].
Whenever land was alienated certain consequence followed, as

regards the former occupants and the new ones, Rights which must
be considered. According to the 1953 Circular the fact that the
Governor’s consent was given for native occupation of all public
land had to be assumed except for land held under the Granted of
Occupancy and also for land under the following categories:
A. Public Land in Urban Areas : for example in Townships,

Minor Settlements and Trading Centres. Africans in such
land, when such land is alienated for urban expansion, were
assumed to be expropriate and their ownership extinguished.
Para 12 provided for this, and Appendix 1 of the 1953
Circular provided for compensation procedures.
B. Land set aside for the Government use: e.g. Government

Buildings; agricultural or veterinary farms; railway reserves,
aerodromes, etc.
C. Land alienated by Statute: e.g. Game Reserves, Forest

Reserves, Public highways, sleeping sickness areas, etc. etc.
D. Land Mining claims or Leases.

Page 13 of 154
E. Alienated Land which has become available for public use

after acquisition of a subsisting Freehold or revocation as
expiry of the Lease.
F. Land under categories A. B. C. or D, which has become

available for pubic use through cancellation of Minor
Settlement, abandonment of an aerodrome, declassification
of forest reserve, or some like means.
Under para 11 of the Circular land under category E and F could be

returned back to the Africans through a recommendation of the Provincial
Commissioner of the area – not through the Africans. And even if the
land is returned to Africans by the Governor (under consideration of S.5
of the Land Ord.)
“Such occupation (was to) be subject to control of the

Governor in order to ensure proper utilization of the land”
(para 11).
We are going to consider briefly the effect of such alienation in each

category as the statutory structure stands today. Before doing so it is
important to consider two points.
First, the exercise of land alienation was manifestly unfair and the
Independence government has tried to redress situations where Africans
felt that they had a right to alienated land. The procedures are laid don in
the Land (Settlement of Disputes) Act, 1963 (Cap. 524). According to
James (p. 99-100) a number of orders have been made under the
Page 14 of 154
enactment and most affect Tanga Region – particularly in Lushoto. [For

a thorough treatment of this Statute see J. & F. pp. 35-42].
Second, it is important to note that customary law titles have continued to

exist despite the uncertainties that go along with the permissive nature of
the deemed right of occupancy. During the colonial period the Order-in-
Council 1920 provided that all courts had to be guided by “native law so
far as it is applicable and is not repugnant to justice and morality, or
inconsistent with any Order-in-Council, or Ordinance.”
The provision was carried on under the Judicature and Application of

Laws Ord. Cap. 453 (No. 57 of 1961) where S.9 provides for the
application of customary law and the repugnancy clause in abolished.
Even under the Land Ordinance apart from the provisions of SS 4-6
which refer to the natives of Tanganyika S. 13 of the L/O provides:
S.13 The devolution of the rights of an occupier upon death

shall be regulated, in the case of a native, by the
provisions of sections 18 and 19 of the Administration
(small Estates) Ord., Cap. 30 or ….
Provided that the aforesaid Ord. Shall not apply to the

devolution of the rights of any native using or occupying
land in accordance with native law or custom and
without having otherwise obtained a right of occupancy
under this Ordinance. In such a case the devolution of
the rights of a native occupier upon death shall be
Page 15 of 154
regulated by the native law and custom existing in the

locality in which the land is situated (Ord. 7 of 1928).
Thus the devolution of landed property on death, amongst natives

occupying land according to customary law, is to be guided by the same
law.
2. CATEGORIES OF ALIENATED LANDS
2.1 Land Held Under the Granted Right of Occupancy
[URBAN LAND EXCEPTED]
The major category of land removed from the domain of

customary law (i.e. alienated land) is under the Granted
Right of Occupancy. Through the operation of the Freehold
titles (Conversion) and Govt. Leases Act, 1963, Cap. 523
and the Government Leaseholds (Conversion to Rights of
Occupancy) Act, No. 44 of 1969 the former Freeholds and
the Government leaseholds became Rights of Occupancy by
early 1970. As we have noted already in the introductory
discussion the Land Ordinance did not protect the African
from indiscriminate alienation notwithstanding provision
which ‘aimed’ at protecting native interest.
Page 16 of 154
Once a Right of Occupancy is granted its tenure is regulated

by its own provisions and subordinate legislation thereunder
(e.g. The Land Regulations of 1948). There is case law,
however, that indicates that in certain cases customary law
may still govern disputes arising thereby as between the
parties inter se.
MOHAMED NYAKIOZE v. SOFIA D/O MUSSA (1971)

C.A. D/89/71
HCD NO. 413
Facts: Mohamed (the Applicant) and Sophia (the

Respondent) were married for a period of seven years under
Islamic land and were later divorced. A dispute arose, after
the divorce, about the ownership of a house and a cupboard
which Sophia alleged was given to her by Nyakioze as a gift
during marriage. Nyakioze instituted proceedings in the
Primary Court of Magomeni District claiming the possession
of the cupboard and the house. The plot of land was held
under a Right of Occupancy from year to year. The grant
was obtained in the name of Sophia. It was accepted that
when the plot was acquired there was a small hut which
Nyakioze demolished to erect the house – the subject matter
of the case. The house was valued at Tshs. 7,000/=. Sophia
throughout paid the site-rent. It was also proved in the
Primary Court that Nyakioze obtained the plot, built the
house, etc, for Sophia. The PC found for Sophia and ordered
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Nyakioze to surrender the house and the cupboard to her.

Nyakioze appealed to the District Court of Dar Es Salaam.
The District Court:
- Nyakioze contested that the Primary Court lacked

jurisdiction to entertain the matter since:
(a) The pecuniary jurisdiction of the PC was less

than Tshs. 7,000/= which was the value of the
house.
(b) That the plot of land on which the house stood

was granted under the Land Ordinance.
The learned DM held that the PC lacked pecuniary jurisdiction in

relation to the house. But in the case of the cupboard upheld its
judgement. He then dismissed the appeal with costs. This he did
after noting that the house was however built on an unregistered
plot. Which impliedly meant has it not been for the pecuniary
limitation the PC had jurisdiction.
Nyakioze (The D/Appl.) appealed to the High Court.
Grounds of Appeal:
i) The PC had no jurisdiction to deal with the House.

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ii) The DC after setting aside the PC’s decision on the House
erred in dismissing the Appeal with costs without handing
over the house to Nyakioze pending Sophia’s substantiation
of her claim in Court of Competent jurisdiction.
High Court’s Decision: (Per Onyiuke, J.)
-(a)- On Pecuniary Jurisdiction of the PC, the question should be

“to what extent the Civil Jurisdiction of a PC is restricted to
the amount or value of the subject matter”. S. 14(1) MCA
(Similar to the present S. 18(1) of MCA 1984 (2)) provides
that the Islamic or Customary law the jurisdiction of the PC
is unlimited (vide S. 14(1) (a) (i)) read together with S.15(1)
which provides for order and awards the PC can give; it is
clear that in cases of Customary Law its jurisdiction is
unlimited. It is only in cases of statutory law that the
Primary Courts are limited (vide S. 14(1) (a) (ii) – presently
S. 18 (1)(a)(ii) – limits to shs. 20,000/=). The fact that the
house was valued at shs. 7,000/= did not restrict the PC,
provided the case fell under Customary law of Islamic Law.
-(b)- The Applicant’s (Nyakioze’s) Counsel (Raithatha),

contended that although the PC was not limited to the value
its jurisdiction was ousted by a proper reading of S. 14(1)(a)
and S.57 of MCA which provided that the PC has no
jurisdiction to land obtained under the L/O Cap. 133 or
registered under the LR/O Cap. 334.
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The Court held that under S. 14(1)(a) the proviso thereunder

excepted land registered under Cap. 334. According to S. 27
of Cap. 334 all grants (after 1st June, 1954) have to be
registered provided that the Registrar shall not register a
certificate of occupancy in respect of a R/O for a term of
5 (five) years or less or from year to year or for a period
less than a year.
The Land Ordinance under SS. 2, 4, 6 and 9 provides that it

is quite possible for a Certificate of Occupancy to be issued
to a person whose title to the use and occupation of land is in
accordance with Native Law and Custom.
Where the grant of R/O is for more than 5 years then it has to
be registered under Cap. 334 (S. 27). But as long as the R/O
is far less than 5 years it may be within the purview of
Islamic or Customary Law and thus within the Jurisdiction of
the PC.
Section 57 MCA, 1963 does not oust the jurisdiction of the

PC to entertain proceedings relating to the R/O granted under
the L/O it merely states that proceedings relating thereto
need not be commenced in a PC.
-(c)- Held therefore – that since this claim related to a house

erected on land held under a grant of a R/O from year to year
the PC has jurisdiction to deal with it. The claim involves a
consideration of the rights of the Plaintiff/Respondent (i.e.
Page 20 of 154
Sophia) to a house given to her by her husband to whom she

was married under Islamic Law and the law applicable to the
case is Customary Law and/or Islamic Law. The High Court
upheld the PC’s decision but directed that the D.C consider
how much Sophia should reimburse Mohamed Nyakioze for
“advancing” her money to “build” her house.
The case argues that there is a possibility of Customary Law

operating in the domain of the granted right of occupancy. Strictly
speaking even the R/O for 5 years or year to year and less is
already part of alienated lands the title to such land is not
customary. What a dispute arising on a R/O over unregistered land
can be guided by Customary Law in Court proceedings. [cf.
Fimbo’s paper pp. 20-24 cf. Asha Mohamed v. Zainab Mohamed
overriding in consideration non-registration under Cap. 334.
METHUSELAH NYAGASWA Vs. CHRISTOPHER MBOTE

NYIRABU
Page 21 of 154
Civil Appeal No. 14 of 1989
The position seems to have changed from that in Nyakioze's case
Facts: Plot 130 Mbezi Beach is granted to Nyirabu in 1978.

When he was in the process of erecting a building Nyagaswa came
in and claimed the area as his. Nyagaswa stopped Nyirabu from
continuing with his plans. Nyirabu sought the assistance of his
advocate who wrote to Nyagaswa to stop plans of building.
Nyagaswa ignored the advocate’s letter and continued to build.
Nyirabu went to the District Court and sought an injunction against
Nyagaswa. He obtained it, but Nyagaswa also ignored it.
In the High Court Nyirabu claimed for the suit premises and
damages being the difference of the value his house would have
cost in 1980 (shs. 280,000/=) and what it would have cost when the
suit was begun in 1983 (shs.487,200/=). The damages were shs.
374,000/= plus costs.
It was found as a fact that Nyagaswa was granted the plot under
Customary Law in 1978; that CCM Chairman and Ward Secretary
attested to the Transfer:
HC: - Where Customary Law applies in Urban Areas –

James p. 101
- Compensation
Page 22 of 154
2.2 Land Registered Under the Land Registration Ord. Cap.

334
Once land is registered under Cap. 334 it is removed from

the domain of Customary Law. Under S. 27 of that
Ordinance it is provided:
S. 27 Every grant of public land for every

Certificate of Occupancy made or issued after
the coming into force of this Ordinance shall be
delivered to the Registrar who shall thereupon
register the estate therein comprised in the name
of the Occupier.
Provided that the Registrar shall not register a

Certificate of Occupancy in respect of a R/O:-
(a) for a term of 5 years or less unless such

right of occupancy contains an option
whereby the occupier may require the
President to grant him a further term or
terms which together with the original term
exceeds 5 years; or
(b) from year to year or for periods of less

than a year whether or not such R/O
includes an initial fixed term, unless such
initial fixed term exceeds 4 years.
Page 23 of 154
Once land is registered under the Act it is, strictly speaking,

individualised. It can be mortgaged, leased, sold, etc. Land is
completely commoditized under the Act and therefore out of the
purview of Customary Law. In standard accounts of Customary
tenures lands is taken to be held under Usufructuary Rights and
its devolution is controlled by Customary systems of tenure where
communal or group ownership is decisive.
2.3 Forest Reserves and Fauna Conservation Areas
 Readings:
Fimbo, G. M. " Land Administration in a Specified Area: The
Ngorongoro Conservation Area." In G. M. Fimbo Essays in
Land Law Tanzania [DUP, 1992, DSM] PP.51
These areas are provided for under the Forests Ord. Cap. 389
(1957) and the Fauna Conservation Ord. Cap.302 (1951). In the
Land Legislation of Tanzania ‘where an area is gazetted by the
government as a game or forest reserve, the area ceases to be
considered as tribal land and its use will thenceforth be regulated
by the statutory provisions and not by rules of customary land
tenure’ (J & F. p. 42). Such land is referred to as alienated land i.e.
land outside the sphere of customary land tenure.
Page 24 of 154
A. FORESTS ORDINACE, CAP. 389 (1957)1
Part II of the Ordinance deals with the creation of Forest reserves:
- S.5 – Deals with the declaration of a Forest Reserve.
- S.6 – Deals with the requirements necessary for declaration

of an areas as a Forest Reserve. Especially the recording of
various rights existing before the declaration.
- The section provides for the procedure of encouraging those

who have rights to voluntarily surrendering them (Sub. S.
(8)) and are entitled to compensation (Sub. S. (9)).
Those who do not surrender their rights have to get a “permit” to

use the Land by Chief Conservator under S. 8.
- S.9 – Restricts the creation of new rights in an areas

intended for reserves.
- 9(2) “no right in relation to land in such area shall be

capable of being created or existing except by or
under a grant under S.6 or S.11 of the Land
Ordinance”.
- S.9(3) “Nothing in SS (2) of this Section shall

prejudice or affect –
1
See Appendix 1` to these Notes on Forest Ordinance: Detailed Analysis
Page 25 of 154
(a) any right to forest produce in such area enjoyed

immediately before the effective date;
(b) the right of any native or native community to

the use and occupation of any land within such
area which such native or native community
was lawfully using or occupying in accordance
with native law and custom immediately before
the effective date; or
(c) the right of any native or native community

who or which lawfully succeeds under native
law and custom to use and occupation of land to
which para (b) of this subsection applies;
Provided however as follows:
(i) any rights specified in para (a) or (c) of

this subsection shall be extinguished if at
any time thereafter such native or native
community or his or its successor in title,
as the case may be, abandons the land
concerned for a period of 3 months or
more or if such right is managed in a
Right of Occupancy granted in respect
thereof under S.6 or S.11 of the Land
Ordinance; and
Page 26 of 154
(ii) any rights specified in para (b) or (c) of

this subsection shall extend only to the
area of use or occupation which such
native or native community was lawfully
using or occupying before the effective
date.
S.15 – Provides for restriction and prohibitions within the

Forest reserves – from cultivation, grazing to collecting
honey. The section creates an offence in case of
contravention.
S.26 – Provides for the punishment of offences.
S.30 – The Minister is given power to make rules (See GN

478 of 1962).
Under these power, therefore no pre-existing rights can exist

in the same manner as before for under subsection (1) (c) the
Minister can make regulations
“prohibiting or regulating the use and occupation

of land in Forest reserves for Residential
Cultivation, commercial or industrial purpose or
grazing”.
B. FAUNA CONSERVATION ORD. CAP. 302.

Page 27 of 154
S.3 – Declaration of Game Reserve.
S.6 – Restricts entry into and residence in Game Reserves

except for Public Officials, and travellers; and under
6(c) “a person whose place of ordinary residence is

within the reserve” may continue to reside in the
reserve with the consent of the Chief Game
Warden.
SS. 8, 27, 32 – both impute that individual can reside in

the Reserve. Under SS. 6 and 58 the Minister
may make regulations for “better conservation or
control of wild animal life and the better
safeguarding of human life and property, and may
fix penalties for the breach of such regulations not
exceeding the penalties contained in this
Ordinance”.
(See G.N. 478 of 1962 and G.N. 458 of 1965)
- Thus under the said regulation the Chief Game

Warden may vary any pre-existing right to land.
Read: Peter Mashauri v. R. (James & Fimbo, p. 47).
2.3 Preserved Areas

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The government alienates certain lands for planned projects e.g.

agricultural development, etc, Where such alienation occurs the
land may be known as a Preserved Area.
The legislation regulating that exercise is the Public Lands

(Preserved Areas) Ord. 1954, No. 12 Of 1954, Cap. 338
(Amended by Act No. 28 of 1965)
(James pp. 107-109; James and Fimbo pp. 42-49).
What is a Preserved Area is defined under the Provisions of SS. 2

& 3 of the Ordinance. The effect of declaration of such land as a
Preserved Area is to make i.e. impossible to create new titles over
that area. (S. 4).
CAP 338
S.2(1)“Preserved area” means an area of public land declared by

the Minister to be a preserved area under the provisions of S.
3 of this Ordinance.
S.3 – Minister may declare land to be preserved. And cause

necessary inquiries to be made of the area.
S.4 – Effect of the Act is to make it impossible to create new titles

or even existing unless made under S.6 or 11 of L/O.
Page 29 of 154
S.5 – A native community could have land provided when it

abandons it for 3 months its title to that land becomes
extinguished (unclear for natives normally may wait for the
rain season for more than 3 months; again their farming
practices make them leave land to i.e. fallow for even 5 years
consequently it means they may be assumed under the act to
have abandoned the land).
S.7 – Provides for recording of titles.
S.7A – Promises compensation for extinguished titles.
S.8 – Empowers the Minister to make Regulations to affect those

titles under S.6 and furthermore to make Registrations for
the better carrying out of the act.
Comment:
Abdallah Chapila Vs. Mwinyigoha & Ors

(James & Fimbo) p. 54
Facts: Chapila the father of the Applicant has settled in the

disputed piece of land long ago; he then had invited his
nephew Mwinyigoha (now deceased) to the area. This was
in accordance with Zaramo custom where relatives shield the
original settler. In 1920’s Chapila died and Mwinyigoha
used his land. Abdallah was then 6 months old and was
taken to live elsewhere. In 1950’s the adult Abdallah
Page 30 of 154
Chapila started to claim his fathers land and was awarded a

few trees by a Liwali. The land which Mwinyigoha and
others cultivate is filled with trees.
Held H/C (Per Kimicha J.) the assessors of the lower court held
that the land was a preserved areas but since the government
allowed the people to use it, then amongst them customary
law applied (i.e. Zaramo). And according to the Zaramo
customary law, children after the death of their father are
given enough land for their livelihood not all their fathers
land, and by mutual agreement they determine how large that
land would be. However for the trees they inherit all of
them.
- the main question before the H/C was whether the

Zaramo customary law was applicable? And if it
does apply, could it confer any rights to the
applicant as conceded by the lower court? (p. 59 J
& F)
- The H/C held that customary law does not apply.

Since the piece of land is Government reserved land:
(i) when land is alienated legally it is removed

from the domain of C/L
(ii) there is no limitation of time against the

government therefore however long Chapila
Page 31 of 154
and his friends have been using the land does

not estop the government from ousting them.
The applicant’s father was trespasser and could
not acquire right to transfer.
E.A. Held (Duffus, Law, Newbold J.A.)
- Abdallah obtained leave of the H/C in 1967 to apply to

EACA in forma pauperis. The court got the assistance of
Mr. MAKANI a Senior State Attorney as Amicus Curiae he
supported the finding of Kimicha J. that the predecessors of
Abdallah were trespassers since the land was a preserved
area under Cap.338. However he said so long as the parties
were allowed to remain in occupation of the land by the
Government, their rights and liabilities inter se as occupiers
of the land must be governed by their customary law.
- The court held that the question in issue is not ownership of

land as the H/C directed itself; but rather the right to occupy
the land by members of a tribal unit which has bear in
occupation thereof for 2 generations or more.
- The parties are not trespassers but licensees of the

government. They have an implied licence from the
government to occupy the land until such time as it pleases
the government to terminate such license. To hold otherwise
would have the consequence of branding the majority of the
population of Tanzania, who occupy public land in preserved
Page 32 of 154
areas as tribal units, as trespassers who are in unlawful

occupation of the land, which for generation past may have
been their home.
- Thus their occupation is not unlawful and Zaramo customary

law applies.
- The evidence is that it was Mwinyigoha who used the land

firstly; therefore basing on use the land should go to
Mwinyigoha’s heirs and not Abdallah Chapila. Judge for
Respondents
- The effect of the decision then is to raise squatters to a new

position where they can’t be regarded as illegal occupiers but
mere licensees.
- However note the decision is per incuriam under S.5 of Cap.

338 existing customary rights exist only if there is no
abandonment and that those existing are recorded (vide: S.
5(1) (b)) there is no evidence that their titles were recorded.
SPECIFIED AREAS
Rural Lands (Planning & Utilisation) Act 1973 No. 14 Of 1973
- In “Specified Areas” customary law rights become

extinguished
Page 33 of 154
S.4 Where the President is of the opinion it is in the public

interest to regulate land development in any area of
Tanganyika, he may by order in the gazette, declare such are
to be a specified area for the purpose of this act.
S.5(i) Where any area has by an order made under S.4, been
declared to be a specified area the Minister may after
consultation with the Minister for the time being responsible
for lands, make regulation
(a)
(b) regulating farming operating in such area.
(e) reserving the are or any part thereof for the
establishment of an Ujamaa village.
(h) providing for the extinction, cancellation or

modification of the rights, titles and interest in or
over the parcels of land falling wholly or partly
within the specified area, or in or over any building
within the specified area.
Page 34 of 154
6.2 MODES OF ACQUISITION OF LAND
A. Clearing Virgin Forest/Bush
Generally clearing virgin land, and cultivation arising thereby,

entitles the individual doing so to a landholding right over the land.
Proprietary interest arise in time depending on the customary laws

or rules of the given community. Two cases are illustrative of this
mode of land acquisition.
RASHID BIN ALI V. BAKARI BIN KAYANDA (1941) J & F

298
Under the Nyamwezi customary system where one occupies and

cultivates land he acquires occupational rights tantamount to hose
of an owner.
The original settles of land is known as the “MZENGAKAYA”.

To develop the area he settles in he usually invites other relatives
and friends to occupy the are with him. According to customary
law of the Nyamwezi he may not evict the invitees from the land as
it is taken to be unequitable.
In the present case the Appellant had given land to the Respondent
who cultivated it for 8years, later they quarreled and the Appellant
demanded his land.
Page 35 of 154
Held: The Appellant could claim the land as the rightful occupier
but “in the circumstances obtained possession of this land
and having regard to the beneficial use which he has made
of it over a long period of time it would be unequitable to
eject him.”
The Court further pointed out that his kind of land alienation
is similar to that where a Chief gives land to somebody for
usufructuary use. He cannot disposes the user of land
because of a private quarrel. The case was dismissed with
costs.
SILANGA KIMENANGA V. MEVONGORI MUSONI, J & F

pp. 299 – per Spry J.
Held: If a person merely demarcates some land and then later on

lets or loans it to another who clears and cultivates it, it is the
user who gets title. For land belongs to the one who first
clears it.
B. Allocation By Local Govt. Land Authority
J & F p. 67-92
In most communities in Tanganyika unalloted arable land was

under the control of an allocating authority. In many cases the
Page 36 of 154
chief, but in others some tribal or clan elder, or a tribal authority

bestowed the function of allocating land.
Once an allocating authority gave land the title of those who

acquired land under such a disposition could not be challenged.
CHIEF KIRITA v. SALEMA FUMBA (1953) Digest 16, The

Central Appeal Court (J & F p. 67)
Land allocating authorities were incorporated into the British

Indirect Rule System. And thus were controlled by the NATIVE
AUTHORITIES.
The Native Authorities either maintained that role or modified it in

accordance with either their own interests or colonial interests as
such at some stage their role in land allocation received much
judicial attention for in some cases there was direct injustice.
The Native Authority structure began to change from 1954 when

the Local Government Ordinance No. 35 of 1954 Cap. 333 was
passed. This act was to make NAs self-governing bodies under
District Councils similar to the English local government systems.
The process of transforming them was finally finished in 1963.
African Chiefs Ordinance No. 27 Of 1953, Cap. 331.
Up to 1963 when the African Chiefs Ordinance (Repeal) Act,

No. 13 Of 1963, Cap. 517 was passed chiefs retained their
Page 37 of 154
traditional positions as land allocators and their positions were

safeguarded by: Native Authorities Ordinance (Repeal) Act, No.
14 Of 1963.
After independence new functionaries were appointed for local

government purposes. The Regional and Area Commissioners
(Under Cap. 466 and 461 Rev. Laws – Acts No. 2 & 49 of 1962
and 1963 Respectively).
The statues do not give express powers to Area Commissioners for

land allocation but somehow they have added such powers of
allocation of Customary Land to themselves.
The situation was such that the traditional system of land allocation
became veiled in obscurity (See J/F p. 69). In some places e.g.
Ngara and North Mara Districts the Village Development
Committees (VDC’s) (see Dryden :Local Government in
Tanzania (1967) JAA Parts I & II) became the land allocators. In
other districts like the ARU-MERU Districts allocation was carried
out by the Natural Resources Committees which were until 1960
called the land committees. In other Districts it is the District
Executive Officer in other districts District Councils.
In 1972 government administration was decentralized, the question

of land allocation was again obscure, in some Cases Development
Committees (WDC) were responsible for allocation; in other cases
Divisional Committees (or Divisional Executive Officers – Katibu
Tarafa) etc. etc.
Page 38 of 154
However the courts have given general principles to control the

allocating authorities whatever they are so that they could adhere to
Customary Rights; which is a difficult role when they have again to
be cognisant of the political fluidity of policy objectives which
with their constant change the policies of the authorities have to
change and in some cases conflict direct with customary or
traditional rights.
The cases which have dealt with the problems of land allocation by
Native land authorities are many but the main ones are:
Mtongori Nyamagaini V. Richi (1966) (J & F p. 564) Kimicha,

J.
Facts:The appellant had about 15 acres of land, he had occupied

the land for about 26 years, tough he didn’t use all of it, it
was regarded as his through occupation. In 1963 Richi a
local inhabitant who had been away returned home and
wanted some land for cultivating, he built a milling machine
near the Appellant’s shamba, then he asked the appellant for
some land, the appellant refused. Richi saw the Elders who
on seeing the appll’s land gave 2½ acres to Richi. Saying
the Respondent had a right to land as much as the appll. Had.
Q: What had to be considered by the H/C was whether the

Elders had the power and right of allocating the
appellants’ land to the Respondent.
Page 39 of 154
Kimicha, J.
“I am of the opinion that the Elders had neither the power

nor the right to allocate the appll’s land to the respondent.
They had the power and the right to allocate vacant or
abandoned land but not occupied land. In the absence of a
specific by-law limiting the area of land that a person should
possess, the elders and the lower courts had no ground in
holding that the appll’s land was too big for him. What
appeared too big for them may not appear too big to him or
to someone else … There is one point which I would like to
draw to the attention of the lower courts and that is our
courts are courts of justice and not courts of morality. Their
duty was to decide whether or not the appellant had
established his claim to the land and were wrong in basing
their decision on whether the respondent being a local
inhabitant had a moral right to a piece of land in the area.
This is a wrong and dangerous principle and could have very
unpleasant results if extended to other types of property.
Those who have many houses or livestock, for example,
could be forced to part with some of them if the elders were
of the opinion that they had more than enough and that some
other persons of the locality and moral right to them.
The elders who allocated the appellants land to the

respondent acted very high-handedly and it is to be regretted
Page 40 of 154
that their action had the blessing of the 2 lower courts …

Appeal allowed.”
Note: The case clearly shows how individualism already conflicts

with customary role of equitable ownership of land. The
H/C is actually defending individualism vis-a-vis customary
virtues.
Cases have been passed asserting that the VDC should always
respect customary rights especially where land is being used.
Masubo Karera V. Marwa Nyanonkwe, J & F P. 72.
Lukas Masirori Kateti V. Oloo Sebge, J & F P. 73
Simeon Osita V. Serebe (1968) HCD. NO. 21 (concerns a

village executive officer)
Thadeus Chacha V. Robi Mkiba (1970) HCD NO. 109.
Re-allocation
(a) In Christina Ndege V. Daudi Wankanya (1968) HCD NO.
255 – said J. here the VDC had re-allocated land belonging
to the appellant’s husband who had gone to Kenya for
treatment. The Re-allocation of land by the VDC after it had
been used for 30 years was held to have amounted an
“Abuse of power”.
Page 41 of 154
(b) Re-allocation is only possible if one does nothing to the land.
Fidele V. Antoni J/F P. 86.
(c) Land cannot be re-allocated merely on the pretext that it is to

big.
Gideon Mubusi V. Boke W/O Rohore J/F P. 566.
Lukas Masirori Kateti V. Oloo Sebege (1969) HCD NO. 11 –

Biron J.
The appellant claimed possession of land allocated to him by the

VDC. At the time of allocation, the Respondent was in possession
of land, having occupied it for “some considerable time”, some
witnesses testified that she had occupied the land “as long as they
can remember”. The P/Court gave judgement for the respondent in
view of her undisturbed occupation of land for many years. The
DM upheld the judgement of the PC and in reviewing the evidence,
found that, not only was the land wrongly allocated to the
appellant, but that the committee which allocated it was not
properly constituted, and further that such allocation was done in
the absence of the respondent which was a denial of justice. The
appellant appealed to the HC, his main grounds of appeal being
that, although the respondent was not present when the land was
allocated, her husband was, and he made no protest, and further
that, according to the local customary law, a woman could not hold
land during the lifetime of her husband.
Page 42 of 154
Held: Although the responsible husband may have been at the

relevant time, the fact remains that the respondent herself
was not. The appellant has failed to prove his proposition,
that under local custom a woman cannot hold land during her
husband’s lifetime. The judge made reference to the
increasing number of improper allocation by VDC’s and
subscribed to the warming issued by the DM that VDC
members must use their powers justly and wisely instead of
creating discontent among the inhabitants whom they are
entrusted to look after. Appeal dismissed.
Thadeus Chacha V. Robi Mkiba (1970) HCD N. 109 (Kimicha

J.)
The Appellant had applied to VDC who allocated him a piece of

land which he claimed belonged to nobody and was undeveloped.
There was undeveloped and was planted with cassava, bananas,
Arabica coffee and some eucalyptus trees by Robi after he learnt of
its re-allocation to the appellant. However, the magistrate
ascertained that the land in question had in fact been the subject of
dispute between Robi and others in a previous civil case. The
District court decided that Robi (the present respondent) could not
be deprived of land he had held for many years under customary
land tenure.
Held: (1) It appears from the facts as recorded by the district court
based on the evidence of witnesses and on the magistrate’s
Page 43 of 154
visit to the and in dispute that the land was allocated by the
VDC to the appellant in this court when they knew that the
respondent in the court exercised right of ownership over it
recognised under customary law.
(2) There is no evidence to show that Robi committed acts

which amounted to waiver of his rights over land. He
resisted the VDC’s action by planting permanent trees on it
and he has alleged in this court that he was locked up for a
number of days by the then Area Commissioner for refusing
to agree to the alienation of his land.
(3) The district magistrate was, after inspecting the land,

satisfied that it was the subject of litigation between Robi
and his neighbour Mbanda long before it was allocated to the
appellant and judgment was given for Robi.
(4) It is clear from the above facts that the VDC acted above
their powers in allocating the land in dispute to the appellant
in contravention of Robi’s undisputed right over it.
(5) Appeal dismissed.
Abbi V. Matle (1971) HCD N. 341. Kwikima Hg. J.
Facts:The appellant (a Somali) had been given land by a

Divisional Executive Officer (one Gidamboru) in March
1965. The respondent asserted title to the land through
Page 44 of 154
allocation by the VDC in October of the same year. He

sought to impeach the prior allocation on the ground that the
appellant is a Somali and land could not be allocated to a
Somali under Customary law. At the trial the DEO gave
evidence that his power of allocation bring from an authority
given by the Executive Officer of Mbulu District Council.
The authority was not produced through the reference
number and date were specified. The trial court found for
the respondent on the ground that as there was no law
regulating the allocation of land, the power was in the VDC
not in the DEO. The Decision was affirmed by the District
Court. In the H/C the appellant sought to tender the authority
given to the DEO by the Executive Officer, in evidence but
the respondent objected to this on the ground that the
document was additional evidence which was not produced
in the PC or DC.
Held: (1) With respect to the respondent I do not think that this
document is additional evidence as such, since it has been in
the picture all the time. It was identified and referred at the
trial. Failure to produce it at the trial can’t make it additional
evidence at this stage because the respondent has been aware
of it all along.
(2) it is clear from the document before this court that

Gidemboru was fully authorised to act the way he did. The
trial court found no by-law in breach of which Gidamboru
had acted. It was quite clear that the appellant claimed prior
Page 45 of 154
title to the disputed shamba and that the respondent was

motivated by spite, envy and even radicalism when he
grabbed by his neighbour. The letter of instruction to DEO
(given in evidence) expressly takes the power of allocation
away from the VDC and gives it to the DEO. For this reason
alone the courts should have found for the appellant.
(3) The court was quite apprehensive on the action’s of

VDC’s allocating already occupied shambas (See: Lukas
Masirori Kateti V. Oloo Sebege (1969) HCD 11) because
such practice breeds discontent among the people the VDC is
supposed to look after. It is particularly unfair to allocate
occupied land in the absence of the occupier. In this case the
respondent was aware of the allocation to the appellant and
his approach to the VDC behind the appellant’s back must
have been made in a very bad faith. He was seeking to
exploit his neighbour who had spent his energy and
resources to clear the land already allocated to him at the
time the respondent chose to stir. This court is left in no
doubt that the move the respondent took was taken because
the appellant was a Somali and not a Mbulu or some other
local tribesman. In rejecting the appellant’s claim the trial
court wad condoning and even encouraging racial
considerations to influence it. For this reason and other
reason explained above, it would be only just to allow this
appeal and overrule the decision of both courts.
(4) Appeal allowed and appellant lawful occupier.

Page 46 of 154
Christina Ndege V. Daudi Wankanya (1968) HCD N. 258 –

Saidi J.
Facts:Appellant and her husband had occupied the disputed and

for 30 years. In 1959 her husband contracted an illness and
she thereafter took him to Kenya for treatment. When she
returned in1964, she found that the land had been reallocated
to respondent by the VDC.
Held: “It is quite obvious that the re-allocation of the land was
illegal and amounted to abuse of power by the VDC.” The
original owner, the husband who had died, left behind his
widow and 5 children. Appeal allowed and direction given
that appellant and her children be put in possession of the
land forthwith.
Medadi V. Nawe (1971) HCD NO. 333 – Bramble J.
The respondent claimed a piece of land in the primary court. He

asserted that the land was part of a shamba allocated to him by the
appropriate land allocating body in 1959, but that he had not yet
cultivated the disputed part. The appellant’s case was that the area
in dispute was allocated to him by Assistant District Executive
Officer in 1965 in the presence of Elders. His evidence was
corroborated by witnesses and judgement was given in his favour
by the primary court magistrate who agreed with one of the
assessors that because the land was allocated to the appellant by the
Page 47 of 154
proper authority he should remain in possession. This decision was

reversed on appeal to the District Court on the ground of 1 st
allocation.
Held: (1) The DM found that the land was 1 st allocated to the
respondent and nothing was shown why it should have been
taken away from him. It could not be taken away from him
without a reason. I am in full agreement with this view.
(2) I find no merit in the appeal and dismiss it.
C. Purchase
In Customary Tenure generally sale of purchase of land was not

recognized and generally speaking if we say that this system
existed in the “Communal mode of production” sale is
inconceivable; firstly; because land is a pre-condition for life itself
and secondly; alienation by exchange has not yet dominated the
conditions of production because division of labour is very low.
Therefore sale can’t be conceivable here. (See KARL MARX
“Pre-Capitalist Modes of Production”. Ed. E. Hobsbawm.)
With continuing division of labour, the rising of division between

males and females, division between hunters and farmers; division
between Agriculturists and pastoralists; division between the tribal
unit in general vis-à-vis handicraftsmen (e.g. blacksmiths), division
between one tribal unit and another etc brought about the process
Page 48 of 154
exchange; as such it was then possible for an individual to dispense

with one form of productive activity and pursue another form and
through exchange make his life all-round wholesome. As such the
possibility of even exchanging land began to arise.
James and Fimbo (p. 302-312) tell us that historians have noted
that even in pre-colonial times Wachaga & Wahaya had sale of
land but then it was only restricted to their fellow tribesmen. Some
historians assert that even the Wasambaa and the Waarusha had
such sales. But Cory & Hartnoll assert that the Wahaya only
started to sale land about 60 years ago. The WASUKUMA they say
do not recognise state of land, other than a loan of land (See
Jafenia S/O Shimba v. Musuka S/O Nyanda (1968) HCD N. 10
( per Cross J.)
Presently however most communities in Tanzania have a de facto

recognition of sale of land, this is due to present economic
condition.
Through the policy of the state, nobody owns empty land but the
state. As such what an individual can own are the improvements.
Therefore in Tanzania when we refer to land even at customary law
which is exchangeable we mean the “improvements” (which
includes the clearing of land).
(a) Contracts for sale
(i) These may be oral or evidenced by writings.

Page 49 of 154
(ii) Executory contracts are? Not recognised at customary

law i.e. a promise for a promise.
(iii) Where one party has wholly or partly performed his

promise in furtherance of the agreement, a binding
enforceable agreement arises e.g. If the vendor allows
the purchaser to go into possession but he later
defaults in payment of the purchase price the vendor
may recover land or sue for money which is due under
the agreement.
Presently the court can order specific performance of a

contract for the sale of land – MCA, 537, 4th Sch.
(b) Passing the Vendors Tiels
The vendor’s title to land would not pass until all the
purchase price has been paid.
Andrea Rafeel v. Antonia Masakuyu (1968) HCD

132
(c) Witnessing the Transfer
The number of witnesses varies from area to area. In many

areas the document is executed in the local Baraza and court
officials could be witnesses. As documentary evidence
Page 50 of 154
becomes relied on continuously and as the people become

more literate, the number of witnesses or the mere presence
of them is not strictly made necessary provided the
transaction is provable by other means.
Fidelis Ferdinand v. Clementina Felix (P. 251, J & F)
Mohamed Tilwilukwa V. Kalokora 20 (1955-56) Digest No. 86

(J & F. p. 310)
Held: Though in Haya law witnesses are necessary and without

witnesses the sale is void. The court held that the
requirement of witnesses may be relaxed where
circumstances so warrant and where there is no dispute
between the parties.
Kabachmezi V. Abdallah & John (1971) HCD N. 2B

(Per Kisanga Ag. J. – on Haya law. Sale without witnesses
is void)
Though again we get a High Court decision of 1969 which asserts

that necessity of witnesses can be dispensed where there has been
too long use on land-vide Waha law.
Mwhela Kibungo V. Mudabe Muhungula (1969) HCD n.

274 – Seaton J. (Waha Law)
Page 51 of 154
Facts: The respondent moved from his father’s village to that of his
uncle, the appellant, who allowed him to settle upon and
cultivate a piece of his land. The respondent had 4 wives and
numerous children. He grow cassava & bananas and built 5
houses on the plot. The appellant, who disposed the
respondent, claims that he only allowed the respondent to
live on the land and did not transfer to him any rights over
the land. The respondent alleged that he had bought the land
from the appellant. When the respondent began building the
houses, the appellant called 2 witnesses on the land,
allegedly to witness that the land had not been sold. They
were not shown the boundaries of the land nor were they
offered money or a drink.
Held: According to the laws applicable for buying shambas or

portions of land in Kasulu District among the Waha tribe, the
land being sold including its boundaries should be seen and
verified by the people who appear as witnesses. The
witnesses are supposed to know the boundaries clearly and
they should also given pombe to drink or money be
distributed between them in lieu thereof for the purpose of
making sure and confirming the selling of land. In this case
therefore no sale took place.
(2) It would be manifestly unfair that a man who had been

given land and who expanded labour in cultivating and
improving it and in building 5 houses thereon should be
summarily dispossessed merely at the whim of the original
Page 52 of 154
donor. There is no allegation that the land is being misused

by Mudabe and it has been found by the lower courts that
Mwehela has another shamba on which he cultivates.
Jafenia S/O Shimba* v. Musuka S/O Nyanda (1968)

HCD N. 10
CROSS J.
Facts: Plaintiff sued for possession of property possessed by

Defendant. There was conflicting evidence as to whether
Plaintiff had sold the land to Defendant or had merely sold 2
houses on the property and given him permission to cultivate
the land for 3 years. After starting to cultivate the land,
accused constructed a house upon the land. The Primary
Court ordered that Plaintiff pay Defendant shs. 1,603/=
before retaking possession. This award was reversed by the
Primary court.
Held: (i) Under Sukuma law, Plaintiff could not sell his holding or
enter into any transaction in which the land was the subject
but could only lend the land (citing Cory, Sukuma law and
custom Rules 380, 414A).
Page 53 of 154
(iii) Defendant know he had only a right to cultivate

the land, and the construction of the house was unjustified.
Sanction should not be given to this illegal act by permitting
defendant to remain in possession for life as suggested by his
Counsel. Appeal dismissed.
Kabachmezi V. Abdallah & John** (1971) HCD N. 273

Kisanga Ag. J.
Facts: The appellant sued both respondents to recover a piece
of land and compensate in respect of trees cut down from the
land. The first respondent admitted in evidence to have sold
the property to the appellant and to the 2 nd respondent in
turns
Held: (1) The respondent Peter John admitted in evidence to have

sold the property to the appellant and to the 2 nd respondent in
turns. Para 930 of Cory & Hartnoll on Haya a Tribe
provision. “A Sale of land without witnesses is void, even
should both parties agree that it has taken place”. The sale
between the respondent Peter and the appellant which was
recorded as Exhibit A-1 was not witnessed by anyone. On
the other hand, the sale to the respondent Haruna was
witnessed by 2 persons. The Learned DM, applying para 930
held lent the sale to the appellant was void for want of
witnesses and that the sale to the respondent Haruna was
valid because it was duly witnessed. He therefore awarded
the land to Haruna and said that the appellant was at liberty
Page 54 of 154
to sue the respondent Peter for the money paid to him. I am

unable to say that this decision was wrong and I would
therefore uphold the decision of the DC and dismiss the
appeal with costs.
Kamuhanda V. Kamuhanda & Others (1971) HCD N. 163

Kisanga Ag. J.
The appellant was away in Uganda when his wife in Bukoba got
involved in a communal case in which she was ordered to pay
compensation. She was unable to pay in full, whereupon the
shamba on which she stayed and which belonged to the appellant
was by court order, auctioned and sold by the 1st respondent as
court brokers to the 2nd respondent sold the shamba to the 3 rd
respondent. The appellant then returned home and lodged his
claim. The PC disallowed it relying on para 575 of Cory &
Hartnoll that, “any shamba sold on public auction authorised by the
Court cannot be restored to any member of the originally owning
family.” The DC dismissed the appeal on the ground that
appellant had been aware of the intended sale by the Court, did not
object, and after the sale went through in 1964, he sat on his rights
and did not lodge the claim until some 5 to 6 years later.
Held: (1) The PM misconstrued provisions of para 575. That

paragraph provides that, “if a pledged plantation is auctioned
to repay debts no relative is entitled to take action for
redemption against the buyer”. The shamba in question was
Page 55 of 154
not pledged but was attached and sold, and therefore it would
appear that the provisions of the said para were inapplicable.
(2) There was no evidence for the DM’s finding that the
appellant knew of the intended sale. The appellant did not
meet his wife and did not receive letters from her.
(3) There was abundant evidence that the land in question

was appellant’s clan land and that the appellant’s wife had
no title to it but was only looking after it on the instructions
of the appellant. It therefore follows that the purported
attachment and sale of the land by court order was
ineffective, 1st because the judgement debtor (the appellant’s
wife) had no title to the land being attached and sold, and 2 nd
because the legal owner (appellant) was given no notice of
the attachment and the sale of his land to enable him to
object if he wanted to.
(4) Title still vests in appellant.
Ibrahim Lihoha V. Saidi Meda (1967) HCD N. 230

Hamlyn J.
Facts:Plaintiff and Defendant are owners of adjacent land holding

which are separated by a stream. For n apparent cause, the
stream began to erode Defendant’s land and to deposit soil
on Plaintiff’s side of the stream. Over a period of several
years about ½ of an acre was eroded and deposited in this
Page 56 of 154
manner, plaintiff claimed the right to follow the soil and

began to farm the land which had been deposited. Plaintiff
filed this action claiming the land.
Held: Under Hehe customary law, if the eroded area is

considerable and is gradually deposited as an addition to
another’s property, the original holder of the eroded land can
“follow” it and he retain ownership. The court distinguished
this result from that reached under Roman Law where
gradual deposition normally inure to the benefit of the owner
of land contiguous to the deposit. It compared the result to
the Roman law concept of agar limitations.
(See J & F – p. 89; EALR Vol. 1 No. 1 Appl. 1968.
D. Acquisition Of Title By Judicial Process

CHPT XII – J & F
There are some cases where an individual can acquire title through
judicial process.
(a) where there had been a dispute over the boundary of land
and there is no clear evidence which portion belongs to who.
The courts will make a division and give title to each of
disputants.
Page 57 of 154
In re Abubakari Mkhara (1956) J & F p. 330

Amina Salehe v. Halfani Gombera (1962) J & F p. 330
(b) Judicial Sales

- These can happen when a court orders the land of a
judgement debtor to be attached and sold to satisfy a
judgement debt.
- Such sales have to follow legal procedure vide

- Civ P.C. No. 49/1966 Part I
- MCA Cap. 537, 4th Sch. 3(2)
- Before sale other parties who may claim interest to

that property have to be notified so that they can have
an opportunity to contest the title.
- A sale under a court order possess good title if the

judgement debtor is the sole proprietor. Thus family
land* can’t pass under a court order to satisfy a debt of
one family member.
- “Attachable property” defined

- S. 48 CPC No. 49/1966
- MCA, 1966, 4th Sch. 3(3)
Musa Salim v. Alli Hassan (1964) – J & F p. 334.
*
kamuhanda v. Kamuhanda & Ors (1971) HCD N. 163, Kisanga Ag. J.
 Paskazia d/o Lutatukirwa v. Feliciana Malilwa 91969) HCD n. 137.
Page 58 of 154
Paskazia D/O Lutatukirwa v. Felician Malilwa (1969)

HCD N. 137
Seaton J.
Bi Paskaszia (P) the appellant in this case, was the original

claimant in the primary court for the recovery of a family shamba
which has been sold to the 1st & 2nd respondents in succession. It
was first sold in December, 1958, for shs.577/= to the 1 st
respondent, Felician (F), at a pubic auction by order of the
Kishanje court to satisfy a judgement debt in 1959, part of the
shamba was sold by F to the 2nd respondent Bushaija (B), who
exercised his rights of ownership by entering the shamba and
harvesting its coffee crop. At the time of the auction sale n 1958, P,
was a young girl of about 12 years. Because of her minority, she
says, she did nothing to oppose the sale or to challenge B’s acts of
ownership. Now aged 23, P, has brought the present action stating
that if the shamba had been bought by relatives she would have no
objections but as it was not, she wishes to refund the purchase price
of shs. 577/= and recover the family shamba. The assessors in the
primary court and the magistrate were all in favour of P’s claim
they being of the view that the auction sale in 1958 had not been
properly conducted. P stated that her father, L, had taken the sum
of shs. 577/= to F after the auction sale but he had refused to accept
it. At the time of the sale F was one of the Vishange court elders
and the primary court seems to have been at least parallel
influenced by a feeling that he may or must have misused his
position in purchasing the shamba.
Page 59 of 154
The district court in appeal reversed the Primary court decision on

the ground that the challenge or objection to the auction sale is long
overdue.
Held: (1) The rules cited by the PC i.e. the Magistrates court (Civil
Procedure in Primary Courts) Rules (G.N. 310 of 1964) are
not relevant as they cant be applied retrospectively.
(2) (Upholding the DC on this point) “The principle of

MERCHANDISE MUTANGILA V. NSUBUGA
ZILIMANYA (P.C.) Civ. App. No. 163 of 1968 (vary)
applied. In that case the HC at Mwanza held out the
appellant could not succeed in his application to set aside an
auction sale ordered by the primary court long after the
matter had been completed. In the present case, the
appellant seeks to challenge an auction sale completed some
9 or 10 years ago. Further, she seeks to do so on grounds
which seem to indicate some confers on. I would endorse
the observation of the learned DM that
It should be understood by the disputants that

recovery of shambas in Bukoba concerns only
those family clan shambas which are sold by
their owner without the knowledge of the family
clan. (Banya vuganda) as provided in Cory &
Hartnoll paras 557 and 560. But as to those
shambas which are sold in public auction by an
order of the court, they can’t be recovered by
Page 60 of 154
any member of the family clan – this is in

accordance with Cory and Hartnoll, para 575.
There is no evidence that P is entitled to bring this action

even if the auction sale was irregular.
Cleophace Anatory v. Paul Edward (1968) HCD N. 137
Facts: A judgement creditor, on a loan of shs. 7,000/= sought

execution of the decree. The Primary court ordered the sale
of the debtor’s shamba. Appellant the son of the judgement
debtor, brought objection proceedings against the sale, on the
ground that he and his brother were in possession of the
shamba. Objection proceedings were dismissed in the
District Court.
Held: Applicant is not competent to bring this action, since he was

not a party to the original dispute.
E. Gifts
Gifts also can pass good title at customary law. Now depending on
the specific conditions of a given tribal unit, the procedure for
attaining such title varies from one tribal unit to the next.
Page 61 of 154
Herbet Rugizibwa S/O Ruhorana V. Mushumbusi

S/O Mwezi
J & F P. 312
Provider for the conditions of a valid land-gift at Haya law.
Thomas Saleni V. Issa Kirari 91970) HCD NO. 116

(Chagga)
Bramble J – a gift is not complete, unless accepted and this is

evidenced by occupation.
Lekasio V. Lekasio (1970) HCD N. 238

(Chagga)
Bramble J – Held that a son who was not entitled to inherit could
not say land was given to him absolutely, when it was only
conditionally given. i.e. Land under tribal inheritance rules cannot
pass under a Gift.
Administrator General, Zanzibar V. Kulsam Fadhil

Mussa & 5 Ors. (1969) HCD N. 80
Held: Where Islamic law applied. Islamic law only 3 conditions

were necessary:
(a) a declaration of the gift by the donor;

(b) an acceptance of the gift by the donee; and
Page 62 of 154
(c) a delivery of possession to the donee.
Mohamed Yusuf V. Tunda Binti Kassim(1973) L.R.T. N. 67

Mwakasendo Ag. J.
Facts:The Appellant was a husband of the deceased (Halima binti

Senga) who had owned a house at No. 51 Kipata St. DSM.
The dispute in this case is about the ownership of this house.
The respondent’s (who is the grant-daughter of the deceased)
case was that she is the owner of the house because the
deceased had, before her death, made a gift of the house to
her. In support to her claim she produced a document – a
Transfer of a Right of Occupancy dated 28t Nov. 1963,
thumb-printed by the deceased in the presence of Mr. Rashid
Kopwe Dachi, then area secretary posted to Ilala Boma Dar
es Salaam.
As a matter of fact, at the time of this purported transfer of

R/O, there were no R/O over this particular property and its
seems none exists to –date. Both parties are agreed that the
land over which the house in dispute stands has never been
surveyed and no certificates of title has ever been issued in
respect thereof by the authorities, the land being merely held
from year to year. It is in the light of this knowledge that
one must consider the nature of the transaction signified by
the document which has been described by its authority as a
transfer of R/O. If this document purported, which I think it
didn’t, to transfer a R/O to the land on Plot No. 16 (i.e. on
Page 63 of 154
which House No. 51 Kipata St. stands), it would have

completely failed to achieve the purpose for which it was
intended since the plot was not the subject of any R/O.
There was clearly no unexpired R/O or otherwise, to transfer
to the respondent. There can, however be no dispute as to the
real intention of the deceased, which was to leave her house
at No. 51 Kipata to Respondent. (Further averted that no
customary law applicable but Islamic law)
Held: (1) There are 3 conditions for the validity of a gift under
Mohamedan law
(a) a manifestation of the wish to give on the part of the

donor;
(b) the acceptance of the gift by the donee either implied

by or expressly and
(c) the taking of the subject matter of the gift by the

donee either actually or constructively.
(2) There was ample evidence on record indicating

deceased’s intention to give away her house to her grand
daughter and the grand daughter did expressly accept this
gift from her grand mother.
(3) The rule that the donee must take delivery of possession
is not absolute; one of the exceptions to the rule is that the
Page 64 of 154
transfer of possession is not necessary where the mother

makes a gift to a son.
(4) For all practical purposes the deceased was the ‘mother’
of the respondent and her case fall within this exception.
(5) At the time of executing the deed of transfer the deceased

was far from apprehending her own death and her illness had
not incapacitated her from her ordinary avocation
accordingly this was not a gift Marx-v/-mant (t time of
death and pain).
Appeal dismissed with costs.
Lekasio V. Lekasio (1970) HCD N. 238

Bramble J.
The Respondent sued his end son and another person for a potion
of a Kihamba. His case was that he gave his son this Kihamba to
use in 1956 until he had got another shamba for him; that as the 2 nd
son he could not claim it as his last born child was entitled to
inherit; he sought possession as the appellant had pledged the crops
to the person without his permission. He offered his son another
shamba which he has refused to accept. The appellant’s defence
was his father had given him the provision of Kihamba as a gift
and absolutely; that it were he who developed it and planted coffee
tress and that he had pledged the crops for 8 years as of right. Both
the assessors in the primary (trial) court were of the opinion that
Page 65 of 154
the respondent was entitled to possession of the Kihamba. The trial

magistrate found otherwise stating “That shamba belongs to the
grandfather of the plaintiff and Mwao is a member of that family
and he has a right to have that shamba according to his father
Lekasio. There is proper evidence that plaintiff is the one who
gave him there and he has not yet closed him. As he said Mwao
will stay there till when he finds other shamba, therefore Mwao is
in the shamba with the permission of his father.” The District
Court held for the respondent. On appeal to the HC.
Held: (1) The question whether there was a gift was a question of
fact and the trial magistrate ought to have given reason why
he differed from the opinion of the assessors.
(2) The Trial Magistrate has clearly misdirected himself on

the facts since the respondent said that the appellant was not
entitled to inherit that portion of land. In any case the
possession and use of it was conditional. On the trial
magistrates own findings there was not an outright gift. He
did not direct his mind to the fact that another shamba had
been offered to the appellant back and he had refused to
accept it. This was valid reason for the respondent to take
back the Kihamba. Add this the fact that the appellant had
pledged the crop without his father’s consent, as the
assessors held; there was more than enough justification for
the letters claimed.
Page 66 of 154
(3) The learned district magistrate held for the respondent for
equally good reasons and they are:
(a) This case comes under Chagga customary law and

according to the evidence defendant Mwao being the
3rd son can’t fight for a portion of the Kihamba where
he was born like the first and last sons.
(b) Even the 1st and last sons of a man although they have
the rights to fight for portions of a Kihamba where
they have been born cannot claim full right before
their father dies – they can only sue any portion of the
Kihamba by permission of their fathers, which they
cannot sell or given in pledge as has been done in this
case.
(c) Even the Written Customary Law Rules G.N. 436/63

(2nd Sch.) does not permit a son to inherit his father
(before) he dies and under para 30 of 3rd Sch. A
testator may change intention if he likes.
(d) Appeal dismissed.
Administrator-General, Zanzibar, Administrator Of Estate Of

Topan Karsan Ramji Alias Rashid Karsan Ramji, Deceased V.
Kulsam Fadhil Mussa & 5 Others (1969) HCD N. 80
Kimicha Ag. C.J.
Page 67 of 154
Facts:The parties, children of the deceased, claimed a piece of

property formerly belonged to the deceased. The Admin-
General is the plaintiff in form only, bringing the action in
court for instruction on the question of which the disputants
should receive the property. Mohamed Hussein claims the
property by way of a deed of gift, made to him by the
deceased, his father, in 1960. The deed of gift was duly
witnessed, but the deceased died without registering it as
required by Zanzibar law. Mohamed’s sister argued that the
gift was invalid for non-registration, and therefore that the
property was properly part of the deceased’s estate to be
distributed among all the heirs. One Ahmed Juma testified
that he had been a tenant on the property since 1960, that the
deceased in 1960 told him that he had given the property to
his son and that he had since that time paid the rent to the
son who issued receipts in his own name. One of the
witnesses to the deed of gift testified as to its genuiness. The
parties were Muslims, members of the Shia Seit.
Held: (1) The validity of gift and the administration of Estates is

governed by Muslim law, where the deceased was a Muslim.
“In Civil matters the law of Islam is and is hereby declared
to be the Fundamental law of the Republic” under cap. 3, S.
7.
(2) Mulla’s principles of Mohamedan law para 150 (3)

states: “If it is proved by oral evidence that a gift was
completed as required by law, it is immaterial that the donor
Page 68 of 154
has also executed a deed of gift, but the deed has not been
registered as required by the Registration Act”.
(3) According to Shia law, the requirements for a valid gifts

are: (a) a declaration of the gift by the donor; (b) an
acceptance of the gift by the donee; and (c) a delivery. Since
these requirements were complied with here, the gift was
valid, and Mohamed Hussein is entitled to the property.
Thomas Saleni V. Issa Kirari (1970) HCD N. 116

Bramble J.
The respondent sued the appellant for a Kihamba. There was

evidence that in 1955, at the instance of the Local Authority some
people were removed from a forest reserve and settled in a
particular area, the respondent was given a portion but he refused
to accept it. In 1964 the appellant planted some bananas. The trial
magistrate found that “If the Plaintiff wrongly occupied the land by
himself it was a big mistake contrary to the local authority
regulations because at that time the land belonged to the local
authority … according to the plaintiff’s own witness he refused to
accept that land and it would depend upon the local authority to sue
and met the plaintiff. The district magistrate held that the
Respondent had proved that the land was given to him and reversed
the judgement.
Held: (1) The DM held that the respondent had proved that the land
had been given to him but this was contrary to the evidence
Page 69 of 154
since a gift is not complete until it is accepted. Apart from

the clear evidence of the respondent’s refusal there was the
fact that he never entered into possession or exercised any
act f possession over a period of more than 6 years. The
weight of the evidence was not, therefore, in favour of the
respondent.
(2) I should remark that the order of the district court giving
alternatives to the settlement of the issue of possession was
not proper in that it did not finally settle the matter. The
order was as follows – Either the appellant shall compensate
the respondent at once and remove him from the land soon
after the judgement or if he is unable to compensate the
respondent then the respondent shall be allowed some years
to remove or exhaust his development. The second
alternative was much too indefinite and could probably lead
to further litigation.
(3) The part of the judgement of the Primary Court which

was quoted above rightly summed up the matter. The
respondent had no title and so could not succeed against the
appellant who was in possession.
(4) Appeal allowed.
F. Rights of Owners of Riparian Farms

Page 70 of 154
RIPARIAN FARMS – are those arable areas which are just next to
or adjacent to rivers. These have got some special rules in some
tribes; for at times the river may change course or the soil may shift
etc. such occurrence may change the positions of land as such
affecting the rights of land holders.
Ali Shomari V. Salum Kikira (1973) LRT N. 61

(Mfalila Ag. J.)
Wakutu Customary Law: - If a river changes course and as a result
extends ones land, the added piece is not unclaimed land but an
extension of the land linked to it directly.
Ibrahim lihoha V. Saidi Meda (1967) HCD N. 230

(Hamlyn J.)
Hehe Customary Law. Where land is eroded from an adjacent

piece of land and deposited in the next the owner can follow that
soil and retain ownership.
Page 71 of 154
COMPENSATION FOR UNEXHAUSTED IMPROVEMENTS
Readings:
 James, R. W. Land Law and Policy in Tanzania. pp. 288-
302.Chpt XIII
 James & Fimbo, Customary Land Law of Tanzania; A
Source Book Chpt XXVIII pp. 592-634
 Koponen, Juhani People and Production in Late Precolonial
Tanzania: History and Structures (Uppsala, 1988) et passim
 Maddox, Giblin & Kimambo Custodians of the Land:

Ecology & Culture in the History of Tanzania ( James
Currey, Lond. 1996) et passim
 Kjekshus, Helge Ecology Control and Economic
Development in East African History: The Case of
Tanganyika, 1850-1950 (James Currey, 1996) et passim
(i) Position at Common Law:
At Common law the Maxim “quicquid plantatur solo solo cedit''2

applies without qualification. Therefore it is impossible here to
claim compensation. For in accordance with this maxim, all that
which is permanently fixed to land becomes land. For example a
landlord is not obliged at Common Law to compensate a Tenant
2
Whatever is affixed to the soil belongs to the Soil. See the concept of 'Fixtures' at Common Law. Black's Law
Dictionary defines Fixtures as 'A thing is deemed to be affixed to real property when it is attached to it by roots,
imbedded in it, permanently resting upon it, or permanently attached to what is thus permanent, as by means of
plaster, nails, bolts or screws.' In order to protect tenants the Rule on Fixtures recognised what were termed as
Landlord's Fixtures and Tenants fixtures. Those of the Tenant could be removed at any time during the tenancy if
they were (a) Trade Fixtures, or (b) Ornamental Fixtures. Later on, by way of statute, Agricultural fixtures were
also removable by the Tenant. See Agricultural Holdings Act, 1948 UK, s. 13
Page 72 of 154
for the improvements he made on the land unless such

compensation was provided in the contract of lease. However at
Common Law there was a remedy which the occupier could seek
resort to i.e. he was allowed to remove some specified fixtures
from the land i.e.
(i) Trade fixtures

(ii) Ornamental fixtures
(iii) Convenience fixtures
Caselaw has abundantly dealt with this concept under the Common Law:
Boswell v. Crucible Steel Co. (1925) 1 KB 119; Wiltshire v. Cottrell
(1853) 22 L.J.Q.B. 179; Climie v. Wood (1869) L.R. 4 Ex. 328; Birch v.
Dawson (1833) 6 C. & P. 658; Bishop v. Elliot (1836) 11 Ex. 113; etc.
African Courts have tended to adopt or stand cautiously away from the
Common Law position, e.g. In Nigeria the following case is illustrative:
Francis v. Ibitoye (1936) 13 N.L.R. 11. Here the Maxim –quicquid
plantatur solo solo cedit” was applied without qualification. The
unqualified use of such common law principles has brought even sum
unusual and unequitable results in some cases e.g.
Ruanda Coffee Estate Ltd v. Ujagar Singh (1966) E.A. 564

(C.A.) –J & F P. 625
“The defendant’s father under a grant of licence had expended shs.

27,000/= in constructing a house and a shop on B’s land. B had
granted the licence under the condition that in case of dispossession
he will pay the plaintiff’s father compensation for those
Page 73 of 154
improvements. B eventually sold the land (Known as St. Benoist

Plantations Ltd) which after a series of sales was purchased by the
plaintiffs. The land was being sold however subject to the
defendant’s father licence meanwhile the defendant’s father had
died, and the plaintiff took possession of the buildings. In 1965 the
plaintiff chose to terminate the occupation of the building the
plaintiff refused to vacate on the pretext that they had not yet
adhered to the licence granted to his father that, their occupation
will not be terminated unless compensation was paid. And that the
plaintiffs were estopped from evicting them because of such
licence.
Held (C.A.)
(i) It is the essence of a licence of this nature that it is personal
to the licensee and creates no interest which can be disposed
of by the licensee. It creates nothing which is assignable.
(ii) The defendant tried to found his title on Estoppel. And it

was thus further held that an Estoppel is a rule of evidence
which may enable a cause of action to succeed but which can
never found a cause of action by itself (Nurdin v. Lambank
(1963) E.A. 304 (C.A.) The right to plead an estoppel does
not give title to the thing which is the subject matter of the
Estopel (Balwant v. Kipkoech (1963) E.A. 651). And
before an Equitable Estopel can operate to give a
representation of a legal relationship, there must be a clear
and unequivocal representation.
Page 74 of 154
Century Auto V. Htching’s Biemer Ltd (1968) E.A. 304

Thus under equitable estopel if one is led to spend money on
another’s land because of an active representation made by
the owner. Then the owner will be precluded from giving
any evidence of an act which would terminate that
occupation except in accordance with the representation. The
fact that he can continue to occupy does not give him title to
land.
(iii) In the present case the father could plead estopel, the
defendant could also do that if there was an active
representation from the plaintiffs, the only representation
found was the licence which was personal to the father and
dies with him.
(iv) Therefore the defendant was wrongfully in occupation from

the day he got notice to quit, as such from that day he has to
pay the plaintiff’s mesne profits. And he is not entitled to
compensation as that was only a licence personal to his
father.
(v) Appeal allowed.

Page 75 of 154
TANZANIA
The principle of compensation for unexhausted improvement could

be looked at 2 levels. Firstly with land under statutory law; and
secondly with land under customary tenures.
(i) Statutory Law
All the land under the Freehold System could be affected by

the common law principles of compensation. The first
statute which provides for compensation for unexhausted
improvement is the Land Ord. CAP.113 Section 14:
14. Every certificate of occupancy shall be deemed

to contain provisions to the following effect:
(a) that the occupier binds himself to the

President to pay compensation for any
damage caused to individuals or
communities in the exercise of the rights
granted to him and to accept the ruling of
the President as to the amount of such
compensation;
(b) that the occupier binds himself to pay to

the President on behalf of the previous
occupier, if any, the amount found to be
payable in respect of any unexhausted
Page 76 of 154
improvements existing on the land at the

date of his entering into occupation and
that this condition shall not be discharged
by the occupier making payment of the
whole or any part of such amount direct to
the previous occupier;
(c) that the occupier binds himself to pay to

the President the rent fixed by the
President and any rent which may a fixed
on revision in accordance with the
provisions of this Ordinance.
14A. It shall be a condition of every right of

occupancy that the occupier shall not, during
the last five years of the term in the case of a
right of occupancy for a term not exceeding
thirty-three years nor during the last ten years
of the term in the case of any other right of
occupancy, redevelop the land, or alter or
improve the buildings the land subject in the
right of occupancy without the prior content of
the Commissioner for lands having been
obtained. (Added by Act 21 of 1966).
14B. Where any amount is paid to the President on

behalf of a previous occupier in accordance
Page 77 of 154
with the provisions of paragraph (b) of section

14 and the President is satisfied that -
(a) such previous occupier had created a

mortgage on the right of occupancy of the
land previously held by him; and
(b) that the amount payable to the mortgagee

in respect of such mortgage remains
wholly or partly unpaid, the President
shall, out of the amount so received by
him, make payment to the mortgagee of the
amount remaining due to him under the
mortgage, and where such payment is
made to a mortgagee the remainder only,
if any shall be paid to the previous
occupier:
Provided that the President may refuse to

make a payment under this subsection to a
mortgagee if such mortgagee fails to lodge
his claim for such payment in writing with
the Minister within three months of the
date when the right of occupancy of the
previous occupier was revoked.
(2) Where there are two or more mortgagees,

the priority applicable for payment of them
Page 78 of 154
under subsection (1) shall be on the same basis

as obtained with mortgages under the law for
the time being regulating mortgages. (Added
by Act 28 of 1970).
14C. Notwithstanding the provisions of section 14 or

any other written law or any term, express or
implied, in any certificate of occupancy, where
the President revokes a right of occupancy of
an occupier who is not ordinarily resident in
the United Republic, the President may direct
that no compensation or any payment shall be
payable to such occupier in respect of any
unexhausted improvements or otherwise and
that the provisions of section 14 shall not apply
in relation to any person to whom a right of
occupancy is granted in respect of such land
subsequent to such revocation. (Added by Act
28 of 1970).
14D. (1) Notwithstanding the provisions of section 14

or any other written law or of any term, express
or implied in any certificate of occupancy,
where the President revokes a right of
occupancy over any agricultural land the
President may, if he is satisfied that the land or
any part thereof was not being fully and
properly utilised, maintained or developed,
Page 79 of 154
direct that any compensation or other payment

payable to the occupier in respect of the
unexhausted improvements shall be of such
amount as the Minister for the time being
responsible for finance may assess having
regard to any loss caused to the national
economy as a result of any failure by the
occupier to maintain, utilise or develop the land
adequately, and where such direction is given
such payment or compensation shall be
determined accordingly. (Added by Act 10 of
1974).
The problem of Compensation even at the level of Statutory

law has remained coplicated due to the nature of the Rights
of occupancy system of tenure itself that is derivable from
the Common Law. The case of the law of mortgages is
illustrative. A case is point here is:
Manyara Estate Ltd. v. NDCA (1970). 3
The facts of this case were briefly as follows: The four

appellants in this case were all creditors to one Mr.
Coulter, Mr. Coulter had obtained 2 loans from the Land
Bank, which was later succeeded by the respondents in
this case; which loans were secured on a mortgage of a
right of occupancy. In 1965, the respondents obtained a
3
Development conditions were imposed in the case of agricultural land by the Land
Regulations 1926 and for pastoral land by the Land (Pastoral Purposes) Regulation 1927.
Page 80 of 154
judgement over Mr. Coulter’s assets upon default by the

later in repaying the balance of the loan and interest. The
assets were not enough to settle the debt. Similarly, the
four appellants had also obtained judgments against Mr.
Coulter for default in repaying credits obtained from
them. Apparent from these facts, these were not secured
creditors. In 1964, Mr. Coulter’s right of occupancy was
revoked. According to government policy at that time, it
was decided that the Treasury should lend money to the
respondents who would in turn pay the money to the
commissioner for Lands as payment by new occupiers of
the right of occupancies then revoked but had not been
granted as new occupiers did not have enough money to
pay for the unexhausted improvements in favour of the
old occupiers. Mr. Coulter’s land fell under these. The
money granted for the unexhausted improved was not
enough to settle Mr. Coulter’s debts. He had by this time
left the country.
The respondents, being the custodian of the money for

sometime, sought to settle its debt first. The other
creditors caught wind of this; and we had this difficult
case brought to court.
When in court two major issues were for determination.

First, whether a mortgage of a right of occupancy gave
additional securities other than the land and secondly,
Page 81 of 154
whether a mortgagee had preferential rights to

compensation over other creditors.
Three holdings were given, two of which were similar

and one dissenting law, J.A. held that under the Land
Ordinance, security for a loan n the form of a mortgage of
a right of occupancy gave the mortgagee the right to that
land only and not on any other form of right. He held
further that a mortgagee had no preferential rights over
other creditors. Sir Charles Newbold, P. had this to say:
I consider that the charge created by the

mortgage of a right of occupancy is a charge
over the right to use and occupy public land.
This is purely usufructuary right, thus the
charge ceases to exist when the subject matter
of the charge ceases to exist, as there is no res
to which an action in rem can apply.
Duffs, V.P. in a dissenting judgment held that a correct

interpretation of S.57 of Cap. 334 would be that a
mortgagee would be in the same position as a purchaser
of a right of occupancy granted under the Land
Ordinance and would enjoy the same powers as would be
conferred on such purchaser, and therefore entitled to a
charge on any proceeds that may be found payable to the
mortgagor. He held further that it was equitable and the
use of common sense to hold the foregoing as correct
Page 82 of 154
otherwise the security in a right of occupancy would be

valueless and render the whole policy behind the right of
occupancy system, meaningless. This appeal was
allowed. However, due to the precariousness revealed in
this case as regards the mortgage of a right of occupancy;
the Land Ordinance was amended in 1970 vide Act No.
28 of 1970; section 9 thereof. A new section 14B was
added to the Land Ordinance with the effect that a
mortgagee had preference over other creditors in
compensation upon the revocation of a right of
occupancy.
After independence there was a chain of statutes which had

the effect of terminating a rights holder's rights to land and
through doing so provided for compensation for unexhausted
improvements. E.g.
S.22 Freehold Titles (Conversion) And Govt.

Leases Act. Cap. 523
S.13 Land Tenure (Village Settlement) Act No.
27/65
S.12(3)Land Acq. Act No. 47/67
S.7 Rural Farmlands (Acq. & Reg.) Act 1965
S.9 Urban Leaseholds (Acq. & Regrant) Act
22/1968
S.6(8) CAP. 389 (Forest Ord.) Cap. 302 (Fauna)
Page 83 of 154
In the L/O unexhausted improvements are defined to

include:-
“Anything or any quality permanently attached

to the land directly resulting from the
expenditure of capital or labour by an occupier
or any person acting on his behalf and
increasing the productive capacity, the utility or
the amenity thereof, but does not include the
results of ordinary cultivation other than
standing crops or growing produce”
The paying of compensation under the Land Ord. Has been

extended by practice to even the paying of squatters
occupying urban land, under the justification that they are a
“native community” occupying land within the meaning of
S.2 of Cap. 113. However S.23 of Cap. 113 provides that
where any person is found to be in unlawful occupation of
public land a District court within whose jurisdiction the
land is situate may order such person to surrender the land
within such time and terms, if any as to the removed of
buildings, the reaping of growing crops and other matters, as
the court shall deem just.
It is apparent from the statutes that there cannot be

compensation for vacant land.
(ii) Compensation at Customary Tenures

Page 84 of 154
At customary law this principle of compensation was

generally unknown. It is a principle which comes about with
the assertion of proprietary rights by individuals for it is
aimed at resolving a contradiction which James & Fimbo put
as trying to get
“an equitable solution to the conflicting claims of

the land owner who wants to recover his land
with all permanent improvements, and the
cultivator who wants his personal property in the
land protected.”
Under customary law the cultivator was protected by

allowing him to sever his improvements when he moves
away. This was not complicated because crops were
generally seasonal as such one could harvest them.
Buildings were of mud and usually of impermanent nature.
But as more permanent crops were introduced; when
building techniques improved to the extent that it was hard
to move with these things. Coupled with commoditization of
products of labour, the question of compensation acquired
new dimensions. The courts began to change these
principles.
James (p. 290-291) quotes the 2 early cases which though

asserting that compensation is unknown at customary law,
Page 85 of 154
they asserted that such compensation should be paid based

on “Equity’.
Maimbi V. Rombo (1946) APP. TO GOVEREMNT

NO. 117 – P. 290 JAMES
Kashwa V. Mashebe (1948) APP. NO. 1/48 –

JAMES P. 291
From then on the principle of compensation became widely

used by the courts which have not only applied it where
proprietary interests have arisen but even where no such
interests have been well marked (James gives an example of
Sukumaland).
Compensation at customary law as evolved by the courts can

be looked at in 2 perspectives:
(i) compensation in pursuance of a grant of land or

in exercise of legitimate occupation even
though no grant was made.
(ii) Compensation in the case of an adverse

possessor.
(A) Improvements In Pursuance Of A Grant

Page 86 of 154
The courts will normally make an order for compensation

where the improvements affected on land were in accordance
with the (1) type of land, i.e. the occupier had developed that
land in (2) accordance with the rules of customary land tenure,
or (3) local authority land usage practices; or (4) where the
improvements were within the express terms of the grant.
Shabani Mmasai V. H. Mcharo (1967) HCD N. 329

J & F, p. 596
Where Saidi J. was deliberating on whether a grantee of land at

customary law as entitled to compensation he held:
“Since the respondent has cultivated the land and

grown these permanent crops on it while he was in
possession for 11 years it is equitable that he should be
reasonably compensated for the development.”
Thus in effect providing that
“A person who is allowed to enter and cultivate land

belonging to another is entitled to be reasonably
compensated for the development he affect thereon.
Page 87 of 154
A Rumisho V. K. Kisamo (1968) HCD N. 211
The land in dispute was given to the defendant by the plaintiff’s

father, but as it was clan land “Kihamba cha Asili” it was bound
to go to the plaintiff as the son of the grantee. The defendant
having staying for over 30 years did not contest this, he only
wanted compensation for improvements.
Held: Seaton J. The defendant is entitled to compensation.
Hussein Sembua V. Alli Yateri (1962) J & F, 599

Pare Law
Held: Murphy J. where a person occupies communal land and

cultivates it, his occupation is deemed permissible. On
an allotment of the occupied portion, the occupier must
be compensated for his improvements by the
subsequent allottee.
Where the Grantee defies the conditions of occupation he will

not get compensation.
Ringia Nyoraro V. Omari (1965) J & F p. 620
Here the respondent was given land on condition that he should

not plant permanent crops, he did so and in settling the dispute
which consequently arose as to compensation the HC (Per
Kimicha J.)
Page 88 of 154
Held: He was not entitled to any compensation for although

he entered the land lawfully he became a trespasser the
moment he planted the permanent plants. He cannot
therefore be allowed by the courts to benefit from his
illegal act.
Mtambo D/O Sekiwonde V. Mame Hela D/O Samkini

(1955-56) Digest 81, p. 29 – p. 606 J & F.
Held: A person who cultivates another persons land after having

been refused permission by the later to use the land does so
at his own risk. If the lawful occupier subsequently
discovers the action of the trespasser, such trespasser can
have no claim to the crops which he has planted or to other
unexhausted improvements which he has affected on the
land.
M. Sambweti V. M. Sambweti (1966) C.A. 7/1965
Held: Where the grantee defies the conditions of occupation, the

grantor can even claim damages against him. However
James (p. 295-6) warns that the principle of compensation
should be exercised with care since a grantee can make such
improvements as would be impossible for the grantor to pay.
The test to the court should be whether the improvements
were reasonably necessary.
Page 89 of 154
(B) Improvements Affected By The Adverse Possessor
There were some early cases which generally held that the adverse
possessor can not be compensated at customary law.
Mtambo V. Mame Hela (supra)

Ndeonasia V. Cornelio (1955-56) Digest 93, p. 3
However in later cases it was held that in certain circumstances the

adverse possessor could be compensated. For example in the case
of
Luka Mlele V. Athumani Kisimbo (1964) LCCA

No. 26/1963 – J & F p. 607
SPRX J. Held: In order that an adverse possessor gets

compensation the following 2 conditions must be satisfied, i.e.
(i) he claims the land. Under genuine (bona fide) claim of

right.
(ii) he entered the land and the occupier knowingly acquiesced

in the clearing of the land by the Adverse possessor.
Page 90 of 154
Thus the courts would allow compensation where the Adverse

possessor was working under a bona fide “CLAIM OF RIGHT”
or MISTAKE. The mistake could be in law as well as in fact
Josephat Kabiyengo V. Nsange (1968) C.A.

– J & F. p. 610 – Mustafa J.
Where a clan shamba was sold by a woman. Where in Haya law

was a mistake. The purchaser was awarded compensation.
The owner must know that a stranger is cultivating his land and
makes no protest i.e. he acquiesced to the acts of stranger. The
courts would presume knowledge where the owner is in such
circumstances that he knew or ought to have known of the adverse
occupation. Then such circumstances would justify the law
imputing permission for the stranger to cultivate the land.
Regina V. Mohamed (1971) HCD 332
Mistake and knowledge are cumulative tests one without the other
would not justify a court to make an order for compensation.
Nicodemo V. Sindato (1964) LCCA 17/63.
Read p. 551 J & F about the Fact that Acquiescence mistake have
to go together.
Page 91 of 154
“R claimed damages for the alleged destruction of her crop

by the respondent M, she alleged land was allocated to her
by one O.A. both the P/C & D/C found that she was a
trespasser to M’s land thus she was not entitled to damages.
Held: The respondent by silence had acquiesced to the appellant

encroachment and will not be in equity justified to destroy
the appellant’s crops.”
What of where O gives land to A and then A without the consent of

O conveys the land to P. When O evicts P, would P get
compensation.
Christopher Kashwa V. Kagaruki Mashebe (1951)

App. To Governor 13/1950
Held: The Bona fine purchaser would get compensation.
Kabiyengo V. Nshange (Supra)
Clan _________________ Defendant 2

}
Page 92 of 154
} Sale 600/=
Plaintiff ______________ Defendant 1
Held: Defendant 1 is entitled to compensation since the plaintiff

knew of the sale and he just left the Defendant 1 to develop it
before he asked for repossession.
What of when O gives land to S and S sells it to P, then P is

told about the sale being void and he nevertheless continues
to improve it, would he be compensated?
Lweikiza V. Ndyema (1971) HCD 326
Held: (Per Kisanga Ag. J.) “I am of opinion that the appellant

should not be allowed to recover compensation in respect of
improvements which he carried out after becoming aware of
the fact that the title to the land was in dispute. Where a
person carries out improvements to the land after he becomes
aware that proceedings, have been instructed to dispute the
title to land, then he carries out such improvements at his
own risk and he must be deemed prepared to take the
consequences, following the dispute.”
The Right to compensation can be inheritable.
Wangaeli Elia V. Nathan Materu (1962)

J & F, p. 622
Page 93 of 154
Mukagilage Bitasimbile V. Raphael S/O Rubuli,

J & F, p. 622
Page 94 of 154
ABANDONMENT
Abandonment has been generally defined as “cesser of occupation

without animus revertendi” i.e. giving up occupation without an
intention to return.
Dumji V. Dugka (1953) 20 EACA 78 J & F, 522
(a) Firstly abandonment has got 2 elements which qualify it.
(i) The Factum which is the physical discontinuance of

occupation i.e. the external factor of leaving land
(ii) The Animus: which is the mental element by the former

occupier to relinquish his interest. The intention may be
express or imputed.
(b) Secondly the length of time is not of itself a proof of abandonment.

Length of time can be only one aspect in establishing the intention
to abandon. If one has stayed for too long out of possession
usually the onus is on him to establish an animus revertendi e.g.
such intention has to be manifested by such express actions as
installing a caretaker or a representative on the premises.
Rabau Lugunya V.Busyanya (1953-54) Digest 68/5. J & F, p.

582.
Page 95 of 154
Birusha S/O Kondon V. Ngaragare S/O Rugundu (1963) Digest

233/7. J & F, 286)
Or planting permanent trees and returning at internals to book after

them.
Silanga Kimenenga V. Masoni (1962) LCCA 24/62.
(c) The presumption to abandon land will not normally rise where the
absence from the land was due to factors beyond the owners
control e.g. if he had been ejected from the land. (J & F. p. 572)
(d) Where occupational rights are at issue the inference of intention to

abandon based on absence of occupation, may be more easily
drawn than in the case when ownership.
Page 96 of 154
B. ACQUISITION OF LAND RIGHTS
This could be carried out in generally 4 forms:
(i) Clearing virgin land (Forest, bush etc)
(ii) By allocation by Local Authorities.
(iii) Purchase.
(iv) Gift
The Acquisition of land rights at customary law was possible under

generally 3 forms i.e.
(i) by cultivation
(ii) by purchase
(iii) by inheritance
(vide: Mtoro Bin Mwamba v. A.G. (1952) 2 TLR 327)
James and Fimbo (Ch. 10) have it that in earlier times permanent
rights over land could not be acquired by purchase or any other
means for:
(i) There was so scarcity of land

Page 97 of 154
(ii) Pattern of cultivation was shifting and was done for

subsistence
(Compare with: Heldge Kjeshus “Agricultural Patterns &

Systems”).
These rights they assert began to come about with mainly:
(i) Introduction of permanent crops which do not mature for

several years
(ii) Commercialization of Agricultural production (coffee,

coconuts, bananas, sisal etc).
Note: They seem to emphasize much on the permanent nature of

crops as a major factor encouraging the proprietary feeling.
But then shouldn’t be very act of commercialization a
process to individualize?
(iii) Improvement of more durable buildings.
(iv) In areas of land shortage due to increased population

alienation by sales has continuously been firmly established
e.g. Uchagga & Buhaya.
Then they assert that the ownership pattern had some origin
somewhere in History consequently they tell us that the earliest
Page 98 of 154
forms of acquiring proprietary rights was - clearing the virgin

forests.
Permanent ownership is dependent on the degree of attachment of

crops and buildings.
Recognition of proprietary interest can also be Judicial

Recognition.
In some African countries there is a statutory recognition of title by

a process of ADJUDICATION (e.g. Kenya). In Tanzania such
process was rejected as it individualizes land. Though the
Enfranchisement exercise meant giving title to the Tenant, this was
only to cover the policy of land to the tiller.
(A) CLEARING VIRGIN FOREST
Anyone who clears some virgin land and cultivates it, becomes the
land holder of that area. Proprietary interests can then arise in time
depending on the level of development of his community.
APPENDIX 1:
THE FOREST ORDINANCE - Detailed analysis
THE FOREST ORDINANCE CAP. 389: AN

APPRAISAL
Page 99 of 154
Ringo Tenga
Advocate
Senior Lecturer in
Law
University of Dar es
Salaam
0.0 Background
According to the terms of reference provided this study of

forest law is to give, an analysis of existing forest legislation,
especially the Forest Ordinance Cap. 389. Any analysis of Forest
Law is basically looking at what in recent times has become known as
Tree Tenure.1 A definition of "tenure" refers to the bundle of rights
in resources which are recognised by law or custom in any society.
Easy reference is made often to Land Tenure. But tenure in trees is a
category which has become an object of study only recently.
Accordingly to John W. Bruce three types of "tenure niche" are
discernible: The Agricultural Holding, the commons and the
Government/ State Reserve.
(a) The Agricultural Holding
The area that is the object of individual or household farming

operations require tree planting and ownership in a variety of
forums. These include monocropping, alloy-cropping,
Page 100 of 154
windbreaks etc. The central question here is security on the

Ownership of trees which an individual or household unit
plants. One would be interested to know whether at law trees
could be planted in an area, and if so ownership in trees would
be retained by the Planter allowing unrestricted access to the
fruits of the tree or any other products. One would also be
interested to know if such right, over trees are heritable.
According to Bruce:
"Here the key issue is thought to be the extent to which the

farmer has the security of tenure needed to invest in trees.
Trees are slow-maturing and so constitute a long-term
investment. Their costs, including opportunity costs, may not
begin to be recovered for some years, and complete recovery
will require a long period. The farmer will want to be sure he
or she can hold onto the trees until those costs can be
recovered; there is a need for secure tenure."2
(b) The Commons

Communities do own forests. Both in modern societies and
traditional villages the existence of a common tree reserve is
typical. This reserve is known as the "Commons". Ownership
or possessory rights are vested in the community. The primary
question here is not security of ownership but rather
effectiveness of community resource management. A variety of
Community social organisms exist; family, lineage, clan, a
village, parish, an age-set, a religious group, a cooperative, etc.
According to Bruce:
Page 101 of 154
"In the Classic Commons the members have rights to utilize

land or trees concurrently or sequentially as individual
producers. But unlike the holding, no user has the right to
exclude others. The group does have the right, however, to
exclude non-members from the use of the resource. Common
property situations may involve broader or narrower rights of
exclusion by the Community and greater and lesser
effectiveness in the exercise of those rights."3
(c) The Government Forest Reserves

Goverment units - national, regional and local - own forests as
reserves. A variety of reasons both at developmental and
conservation levels affect govermental decisions as to whether
a forest reserve is important or not. Misuse or non-use of flora
at the other two tenure niche may force a decision to create a
governmental reserve.
There is constant interaction in terms of use in relation to the

three levels. The householder does not have rights only in the house
holding but also in the community's forest as a village member and
also, in the case of licence, have some interest in the states' reserves.
The law must then regulate tree tenure taking into account the three
tenure niche. But does it? This is a far broader question which has
been the subject of research and also policy initiatives. In Tanzania,
at policy level, there is the Forest Policy 1986, Draft Forest Policy
of Tanzania, 1990, Tropical Forestry Action Plan (Tanzania) 1989
etc; which are clear indicators of how policy makers are trying also to
Page 102 of 154
grapple with the interaction of the three tenure niche as explained

above. The task here is rather modest in the sense that an analysis of
the Forest Ordinance would clearly indicate that one is largely
dealing with the third tenure niche. It would indicate further that
legislation on Tree Tenure is far from being comprehensive. An inter-
disciplinary endeavor to achieve a tolerable regulatory mechanism is
rather an obvious objective. Policy recommendations are already
pointing at this direction.4
1. The Forest Ordinance Cap. 389.
1.0 Background.
The Orginal Forest Ordinance under the British Colonial

Administration was The Forest Ordinance Cap. 132 of the Laws.
This Ordinance was repealed in 1957 under S.33 of the Forest
Ordinance, No. 30 of 1957, Cap.389 of the Laws (hereinafter Cap.
389), which is still the main forestry statute todate.
However, Cap.389 did not repeal, or rather make void, all acts done
under Cap.132. Its preamble actually declared that it was an
Ordinance "....to consolidate and amend the Law relating to the
Conservation and Management of forests and forest produce and to
amend the Mining Ordinance " In validating acts done under
Cap.132 the Ordinance provided as follows:5
First, that forest reserves, other than Native Authority Forest

Reserves declared as such under Cap.132 were to be deemed declared
Page 103 of 154
as Territorial Forest Reserves (TFR) under Cap.389. Therefore

continuity of reserve areas was provided for.
Second, that all Native Authority Reserves existing were to be

deemed declared as Local Authority Forest Reserves (C.A.F.R.) under
the provisions of Cap.389. This was an important declaration since by
1953 Native Authorities established under the Native Authorities
Ordinance, 19266, were to be replaced, gradually, under the Local
Governments Ordinance, 19537. Consequently, by 1957 there could
not be Native Authority Forest Reserves but rather Local Authority
Forest Reserves.
Third, the Native Authorities which had been appointed under

Cap.132 to exercise control over Native Forest Reserves were to be
deemed to have been authorised under Cap.389 to be responsible for
the maintanance and control of the Local Authority Forest Reserves.
An important shift was also occurring here. The traditional rulers
were also gradually being replaced by an elective local government of
Councillors.
By 1963 the office of the "Chief" was abolished. The consequence of
this change on conservation of traditional catchment areas or reserves
is yet to be fully evaluated.
Fourth, licences which were granted under Cap.132 were

deemed to have been made or granted under Cap.389.
Fifth, rules made under Cap.132, and specified in the schedule

to Cap.389, were to be deemed to have been made under Cap.389.
Page 104 of 154
These included the Forest (Kilimanjaro Reserve) Rules of 1947;

The Hanang Forest Reserve (Closed Area) Rules; The Meru
Forest Reserve (Closed Area) Rules; The Ufiome Forest Reserve
(Closed Area) Rules; and The Forest (Iringa Township) Rules.
Under Government Notice No.74 of 1959 the Forest

Ordinance Cap.389 became operative from the 1st of April 1959.
2.0 Major Provisions of Cap. 389
The Ordinance is divided into nine (9) parts: Preliminary,

Creation of Forest Reserves, Local Authority Forest Reserves,
Forestry Dedication Covenants, Protection of Forests and Forest
Produce, Licences, Powers of Officers, Miscellaneous Offences, and
General Provisions. A brief explanation of each part is undertaken
below.
2.1 Preliminary (Sections 1-4)
As stated above the Ordinance came into effect on the 1st of

April 1959 under powers granted to the Governor under Section 1.
This section gives the short title of the Ordinance and date of
commencement.
Section 2 is a definition section which gives the legal interpretation of

each word of art used in the Ordinance. Definition of `Chief
Page 105 of 154
Conservator', `Forest Officers', `Forest Produce', `Forest Reserves',

`Licence', `Pole', `Tree', `Unreserved land', `Timber', etc. are all given
under the section. These defitions would guide the discussion
hereunder.
All officers and staff of the Forest Department and the Chief
Conservator are responsible for the administration of the Ordinance
(Section 3). The Chief Conservator is defined as "... the person for
the time being performing the duties of the Chief Conservator of
Forests". Today this is the Director of Forests and Bee Keeping
Division, in the Ministry of Natural Resources and Tourism. A Forest
Officer is defined as "... any officer of the Forest Department of or
above the rank of forest guard and includes an honorary forest
officer appointed under Section 4".
The Minister responsible for Natural Resources is empowered

under Section 4 to appoint, by notice in the Gazette an Honorary
Forest Officer and specify the period under which such a person may
exercise powers under the Ordinance. The Minister may however
revoke the appointment at anytime.
2.2 Creation of Forest Reserves (Sections 5-9)
According to Prof. R.W. James the Ordinance basically "aims

at maintaining a regulated system of permanent forest reserves with
a view to the development of a timber industry for the export trade".8
Page 106 of 154
And later in a book co-authored with Prof. M.G. Fimbo this restricted
view is expanded where the authors say:
The task of maintaining a regulated system of permanent

forest reserves with a view to developing both a timber
industry and to assist in preventing soil erosion is one for
the Government. Forest destruction would also
adversely affect the country's water supply, the
preservation of wildlife, agricultural production, and the
tourist industry. Some control of forest lands is therefore
of vital importance to the nation.9
This view does not cover the area of possible interaction on Individual
Holding, Community area and that of Government. The conception
expressed by Prof. James is analogous to the basic conception on Tree
Tenure worked out in Cap. 389 but quite restricted when viewed from
the larger interaction conception which sees tree tenure as involving
the Individual, Community and Government.
2.3 Declaration of Forest Reserves (Section 5)
Section 5 makes provision for Declaration of Forest Reserves

by an Order of the Minister. Such Order must be published in the
Gazette declaring any area of unreserved land to be either a
Territorial Forest Reserve (TFR) or a Local Authority Forest Reserve
(LAFR). The Minister is empowered to vary or revoke such Orders.
The Ordinance defines unreserved land as follows:
Page 107 of 154
"Unreserved land' means land not situated within a

forest reserve which is not freehold or leasehold land (or
not deemed to be freehold or leasehold under any law for
the time being in force) or land occupied under a right of
occupancy granted under the provisions of Section 6 of
the Land Ordinance:10
The definition should only refer to Grants of Rights of Occupancy

under Section 6 of the Land Ordinance, Cap. 113. Today there are
no longer Freehold Titles nor Government Leases known as
Leaseholds.11 Two statutes have done away with that type of land
tenure. The Freehold Titles (Conversion) and Government Leases
Act, No. 24 of 1963, Cap. 523 did away with Freehold Titles
converting these into Government Leasehold. Then the Government
Leaseholds (Conversion to rights of Occupancy) Act, 1969, No. 44
of 1969, did away with Government Leaseholds converting all of
them into grants of Rights of Occupancy.
Annexe II to this paper has worked out in tabular form and

from information available, all Declarations, variations and
Revocation Orders made in this regard from 1960 to 1991.
Under Sub-section (2) and (3) of Section 5, Cap. 389, the Chief
Conservator is enjoined to mark the boundaries of a Forest Reserve so
that the boundary marks can be "visibly demarcated on the ground".
Page 108 of 154
2.4 Requirements for Declaration of an Area as

a Forest Reserve and Consequences on
Subsisting Rights (Section 6 to 8)
Powers of the Minister to declare an area to be a Forest Reserve is

restricted in the sense that there are statutory prerequisites which must
be satisfied : Publication Pre-Conditions, Considerationof Objections
and Recording of Rights.
A. Publication Pre-Conditions
The Minister is enjoined that he must ascertain whether the
Chief Conservator has given a Notice of not less than ninety
days (90) in the Gazette of the proposed Declaration of an area
as a Forest Reserve. The Notice must describe the proposed
boundaries of the Forest Reserve.
The Chief Conservator must also exhibit the Notice in the

office of every District Commissioner "within whose district
any part of the said area is situate, and in such other
manner as may be customary in the area concerned".11
The directive is a statutory requirement imposing an obligation

upon authorities to make sure that adequate and reasonable
Notice of the intention to declare a Forest Reserve reaches
every individual with an interest in the affected area. Adequacy
of notice must satisfy statutory requirements and also local
circumstances.
Page 109 of 154
B. Consideration of Objections
Declaration of a Forest Reserve has the potentiality of depriving

individuals their proprietary rights. Property rights are protected
under the Constitution. Section 24 of the Constitution
provides:
24 (1) Subject to the relevant laws of land, every person has

the right to own or hold any property lawfully
acquired.
(2) Subject to the provisions of sub-section (1), a
person shall not be arbitrarily deprived of his property for the
purpose of acquisition or any other purpose without the
authority of law which shall set out conditions for fair and
adequate compensation.
Notice is only part of procedural fairness where one is about to

be deprived of property. The other consideration is whether the
statute provides for individuals with objections to be heard.
Under Sub-section (2) of Section 6 a procedure is provided. The

sub-section provides:
"6(2) Any person or group of persons who-

(i) Objects to the declaratio of such an areas as a forest
reserve; or
(ii) Claims any rights in relation to land or forest produce

Page 110 of 154
or part thereof, May before the expiry of the period of

ninety day following upon the publication of the notice referred
to in paragraph (a) of subsection (1), lodge with any District
Commissioner within whose jurisdiction any part of the area is
situate notice either in writing or, if such person or group of
persons is or are illiterate, by word of mouth, stating either:-
(a) the grounds of his or their objection; or

(b) the rights claimed, as the case may be,
and where verbal notice is given such District Commissioner

shall record the same in writing."
These objections have to be submitted through the Chief
Conservator to the Minister [S.6 (3)].
The District Commissioner (DC) has to investigate the basis of

objections especially where the stated claim involves rights in
relation to land or forest produce. The DC must make a
determination and communicate the same to the person or
group of persons claiming such rights of such determination
and the grounds thereof [S.6 (4)].
An appellate structure is provided for. Any aggrieved person

may appeal within a month to a Court of a Resident Magistrate
having jurisdiction over the area. The Magistrate may appoint
assessors, (not more than 4) who are ordinarily resident in the
said area or possessing knowledge of the same to assist the
Court in the hearing of the Appeal. However, the law provides
Page 111 of 154
that the Magistrate is not bound to conform to the opinion of

such assessors. The Court may confirm, rescind or vary the
determination of the DC and make such further or other Orders
as may be just. The Decision of the Court is final [Section 6
(6)].
The Chief Justice is empowered to make rules governing all

matters of procedure in the submission and hearing of such
appeals. These have been enacted.
Once the District Commissioner has determined rights in

relation to land or forest produce which can be lawfully
exercised in the intended reserve those entitled to such rights
may, in the alternative, surrender such rights and the same shall
be extinguished [Section 6 (8)]. The District Commissioner is
empowered then to assess compensation on the basis of loss
sustained by such surrender. The Parliament has to set funds for
payment of compensation in such cases [Section 6 (9), (10) and
(11)].
Every right in relation to land or forest produce in respect of

which no claim has been lodged as provided for under the
Ordinance is deemed to be extinguished, [Section 5 (7)].
C. Recording of Rights in Relation to Land and

Forest Produce
Page 112 of 154
Sections 7 and 8 of the Ordinance regulate the recording of

Rights not surrended or extinguished. Under the Forest Rules
the Chief Conservator is enjoined to record the rights. Once
these are recorded and certified by the Chief Conservator the
said record becomes a prima facie evidence for the existence of
such possessory rights [Section 7 (2)].
Individuals or groups of persons whose rights to land or forest

produce have been recorded under provision of Section 7 are
allowed under Section 8 of the Ordinance to apply, in the
manner prescribed in the Forest Rules, for a permit in writing
from the Chief Conservator to exercise such rights. The
relevant part of Section 8 provides:
"... The Chief Conservator, if he is satisfied that such person or

group of persons is or are the person or group of persons
lawfully entitled to the exercise of such rights shall without
charge grant a permit accordingly and such permit when
granted to any person or group of persons shal be lawful
authority to th eholder or holders and to his or thie rheirs and
successors according to law for the exercise of whose rights in
relation to forest produce to such extent, for such period, in
such manner and subject to such terms and conditions as may
be set forth in such permit.
Provided that such terms and conditions shall no tbe

inconsistent with the nature of such rights."
Page 113 of 154
Under the Forest Rules the various procedures for applying for
permits and the manner of issuing grants is provided.
2.5 Restriction on Creation of New Rights in

Area of Intented Reserve (Section 9)
Section 9 of the Ordinance specifies rights over land which

may be created in any area of unreserved land which is intended for a
Forest Reserve from the date of publication of notice under Section 6
(1)(a). This date is referred to as the effective date.
Land rights in Tanzania are those capable of being held under

the Land Ordinance, Cap. 113. These are styled as Rights of
Occupancy. There are two forms of Rights of Occupancy: The
Granted Rights of Occupancy and the Deemed Rights of Occupancy.
Whilst the former are granted under a Certificate of Title the later are
deemed to exist whenever a native or a native community exercises a
possessory or usufructuary rights over land under native law and
custom. Thus the granted title is statutory, and the deemed title is a
customary title. A native is defined as a citizen of Tanzania who is not
of European or Asiatic descent.
It is relevant therefore to discuss Section 9 of the Cap. 389 in

relation to the two types of Rights of Occupancy. The Section restricts
creation of new rights in the area of intended forest reserve; and
effects land rights in different ways.
A. The Granted Rights of Occupancy

Page 114 of 154
Under the terms of Section 9 (2) of Cap. 389 from the date
when a Notice has been issued in writing by the Chief Conservator
declaring an area a proposed Forest Reserve [S. 6 (1)(a)] no right to
land may exist or be created except under the terms of Section 6, 11 or
20 of the Land Ordinance Cap. 113. These sections of the Land
Ordinance allow the creation of Grants of rights of Occupancy. The
Ordinance therefore does not restrict grants of rights of occupancy
under Section 6, 11 and 20 during the time when a notice of an
intended reserve has been made.
This appears to be an anomaly for whilst it protects Presidential
prerogative in granting rights of occupancy it undermines the essential
purposes of the Forests Ordinance. It is unclear why this provision
should remain in the Ordinance.
However the Section is clear that "no right in relation to forest

produce in such area shall be capable of being created or existing"
[Section 9 (2), (c)].
B. The Deemed Rights of Occupancy (Customary

Titles)
Section 9 is particularly complex in its reference to Customary

Land Titles. Although it reserves the Government's right to grant
rights of occupancy in an area of intended Forest Reserve it is
conditionally restrictive to customary tenures.
Page 115 of 154
First, rights to forest produce which were being enjoyed

immediately before the notice are not to be effected [S. 9 (3)(a)].
Second, rights of a native or native community regarding the

use and occupation of land exercised according to native law and
custom immediately before the date of the notice are protected [S. 9
(3) (b)].
Third, rights of succession of any native or native community

of rights referred to above are also protected [S. 9 (3) (c)].
Notwithstanding the protections of the rights of such natives

and their communities are extinguished at any time where:-
(i) The native or the community abandons the land

concerned for a period of three months or more;
or
(ii) if such is merged to a grant of right of occupancy under

Section 6 or 11 of the Land Ordinance Cap. 113.
Furthermore, such native rights which are protected under Section

9(3)(b) and (c) are to extend only to the area of use or occupation
where such native community actually occupies land.
These provisions are unrealistic when viewed from perspetives

of native land use. In Pastoral communities in which semi-nomadic
and transhumant practices are prevalent it is not outside the norm for
Page 116 of 154
an area to be left idle for more than 3 months. This may as well be
translated into abandonment by over-ambitious law enforcess. Here
one needs not to mention agricultural practices whereby land is left to
lie fallow for periods longer than 3 Months; hence, Section 9 (3)
needs informed elaboration.
Lastly, the undue anxiety shown by the insistence of limiting

the area protected to that of actual use also unnecessarily limits native
occupation. The area of actual use should have a commensurate
excess depending on Customany practices. It is a common aspect of
many laws on customary land tenure to reserve land for expansion
usually three times the area of actual use.
It is submitted that Section 9 (3) be amended to include a

definition of native land use which is diverse, dynamic and reflective
of actual conditions of land use pertaining in Tanzanian Communities.
Section 9 (4) requires the Chief Conservator to mark visibly the

area intended for a Forest Reserve and to issue notices in English and
"appropriate vernacular languages" in such a manner as to make the
boundaries sufficiently known in the neighbourhood. It may be
suggested that this statute be amended to compel the Chief
Conservator to call public meetings of Members of affected
communities and inform them in detail the grounds on which the
Government finds it necessary to declare a Forest Reserve. The
consent of Village Councils affected must be made mandatory. The
said Council must also get a public ratification of their Acts through
popular Village Assemblies involving all adults in Villages.
Page 117 of 154
Lastly, provisions which provide for land rights in an intended

reserve cease to apply where the Goverment abandons its intention to
declare such an area a Forest Reserve or if such an area is declared to
be a Forest Reserve under the provisions of S. 5 of the Ordinance.
2.6 Local Authority Forest Reserves

(Sections 10-13)
The Ordinance under Section 10(1) Cap. 389 gives power to

the Minister to declare any area a Local Authority Forest Reserve. The
Minister may specify which local authority shall be responsible for the
maintanance and control of the Forest Reserve after this declaration
the said authority is to manage, meet costs, and receive revenue from
fees charged and licences issued in respect of the Local Authority
Forest Reserve. This revenue is to be part of the income of the said
Local Authority.
Notwithstanding this Declaration the law is clear that the

Minister's action does not ipso facto transfer to or vest in a local
authority any right, title or interest whatsoever in or over any land
declared to be a Local Authority Forest Reserve [Section 10(2)]. One
may equate the Local Authority's interest here to a usufruct which is
the right of enjoying a thing, the property of which is vested in
another, and to draw from the same all the profit, utility, and
Page 118 of 154
advantage which that thing may produce, provided one does not alter
the substance of that thing.
The Chief Conservator is given powers to oversee the

Management of Local Authority Forest Reserves and even to grant
powers of Forest Officers to Forest Managers appointed by such
authorities (Section 11-12). Where Forest Reserves have been
mismanaged the Minister, upon recommendation of the Chief
Conservator, may withdraw the reserve from the Local Authority. The
Minister may even cancel his Declaration under Section 13 of the
Ordinance.
232.7 Forestry Dedication Covenants (Section 14)
In Real Property law where an owner of land deliberately

appropriates it for any general or public use and reserves to himself no
other rights than those which are compatible with the full exercise and
enjoyment of the public use he is said to have dedicated his property
for such purposes. These dedication convenants may be done through
private agreements (Covenants) or statutory mandates.
Section 14 of the Ordinance gives allowance for a Statutory

Scheme whereby the Chief Conservator may enter into a Covenant
with any owner of land to make such an owner devote his land for
beneficial uses conducive to sound forestry management. This
management may relate to rules or practices of good forestry, of trees
Page 119 of 154
for the commercial production of forest produce, or for water

conservation.
The advantage of these arrangements is that the particular

owner of land binds himself through a private contract to exercise
good forestry husbandry. The advantage to the Government is that it
may enforce the Covenant as if it were a Statutory Order. The
Covenant is negotiated as such each of the parties becomes fully
aware of the advantages and disadvantages of the Covenant.
2.8 Protection of Forests and Forest Produce

Section 15-16
A number of activities are restricted and cannot be carried out

in a forest reserve. These are listed under Section 15(1). They
include:
(i) Cutting, removing, having in possession, setting fine or
damaging any forest produce;
(ii) Clearing, cultivating or breaking up for cultivation or any other
purpose, any land;
(iii) Constructing or re-opening of any saw-pit or work place;
(iv) Occupying or residing on any land;
(v) Erecting any building, shelter or livestock enclosure;
(vi) Grazing or depasturing of livestock; or permitting livestock to
enter therein;
Page 120 of 154
(vii) Collecting any honey, or beeswax, or hanging or placing on any

tree or elsewhere any honey barrel, hire or other recepticle for
the purpose of collecting honey or beeswax;
(viii) Constructing of any road, path, water course, tramway, or
fence, or obstructing any existing road, parth, tramway or water
course;
(ix) Covering any tree stump with brushwood or earth or by any
other means whatsoever concealing, destroying or removing of
such tree stump or any part thereof;
(x) Damaging, defacing, altering, shifting, removing or in any way
whatsoever interferes with, any beacon, fence, notice or notice
board.
The doing of any of the above-mentioned activities is an offence

under the Ordinance. The burden of proof for an offence related to
these activities is shifted to the Offender.
In matters related to forest fires any person in the vicinity of a

forest reserve is required to assist in protecting the reserve from fire.
Where a person fails to comply to any lawful requirement under the
section is guilty of an Offence.
The Ordinance makes a specific provision for reserved trees on

unreserved land. The Minister may declare any tree or class of trees
to be reserved [S. 17(1)]; felling or damaging reserved trees is an
offence [S. 18(1)]. Furthermore cutting trees generally for commercial
purposes is prohibited without a lawful licence (Section 18(2)).
Page 121 of 154
The important thing to note is the punitive orientation of this

part of the Statute. Any scheme of punishment must be devised in
such a way that it is efficient and achievable. The enforceability of
any regulation would only be effective if the machinery to enforce it is
in place. The Ordinance refers to the process of issuance of Licences
(Part VI); the Powers of Officers such as Administrative Officers,
Forest Officers and Police Officers (Part VII - Sections 20-21),
Miscellaneous Offences (Part VIII - Sections 22-24), and General
provisions relating to forest produce presumed to be Government
property and penalties for Offences (Part IX-Sections 25-29).
Whether the machinery actually follows up the implementation

of the rules, penalties etc. is something for others to say. It suffices to
be noted here that observing the general deterioration of forests and
similar land the best guess would be that the over-elaborate machinery
with penalties, etc., is not working.
Part X deals with the Minister powers to make Rules, to grant

exemptions and also the Statute here saves mining rights [Section 30-
32].
The last part of this Statute deals with repeal of Cap. 132, the
subsidiary legislations saved as stated hereinabove.
3.0 New Vision for Forestry and Land Tenure
The perception that the Forest Ordinance is a mere instrument of

legistrative control is basically correct. The greater sum of its
Page 122 of 154
provisions are penal in orientation and lack the interactive or rather

enabling facility for, say, community management of forest resources.
The general thrust in both policy and economic planning has recently
shifted to community management. This is true in the management of
all common resources; flora, water, fauna, Land, etc.
Analyzing the recent trend in the development of Land Tenure

John Bruce in his paper "Land Tenure Reform: The Experience in
sub-Saharan Africa" Sums up the conventional wisdom on the issue
by stating :-
"The expirience todate with tenure reform in sub-Saharan Africa has
been problematic. Most often states have been unable to
achieve their objectives, and reforms have often produced
unanticipated problems. (for example, one unanticipated
consequences of the reforms has been to weaken women's
access to land). The target of a nationally uniform, centrally
administered land tenure system seems beyond the resources of
most states. In may countries the attempt to legislate such a
system has only created a gap between law and practice. The
emerging concluision is that decentralised systems are more
promising. There is growing interest is how to work with
existing (or create new) viable institations at local level"
(emphasis added).
Mr. Bruce and other leading experts in Managiment of Common
resources opine that statutory instruments should be based on an
"adaptation" paradigns which would allow management of common
resources to be tailored to fit a decentralised system depending on
circumstances. Such legislation would allow centralisation of
Page 123 of 154
Management where the optimal benefits are great or decentralisation

of management if the benefits would be greater. The proposed status
are known as "framework laus" which if effect allow local
communities
FOOTNOTE1
1. SEE: Bruce, John W. "Community Forestry: Rapid Appraisal

of tree and Land Tenure" FAO/SIDA Forests, Trees and
People Programme, Rome 1989.
2. Ibid, P. 2
3. Ibid, P.3
4. Draft Forest Policy of Tanzania, 1990; also see Tropical
Forestry Action Plan (Tanzania) 1989.
5. Section 33 (a)(i) -(v) of Cap. 389.
6. See Native Authority Ordinance, No. 18 of 1926, Cap. 72
of the Laws, 1947; repealed by Native Authority
Ordinance (Repeal) Act, No. 14 of 1963. cf: African
Chiefs Ordinance (Repeal) Act, No. 13 of 1963.
7. See. Local Government Ordinance, No. 35 of 1953, Cap.

333 repealed by Local Government (District Authorities)
Act, 1982 cf: African Chiefs Ordinance No. 27 of 1953,
Cap. 33.
8. James, R. W. Land Tenure and Policy in Tanzania. (E A
L B, Nairobi, 1971) P. 109.
Page 124 of 154
9. James R. W. and M. G. Fimbo, Customary Land Law of

Tanzania (E A L B, Nairobi, 1973) P. 42.
10. Section 2, Cap. 389.
11. Section 6(1)(a) Cap. 389.
APPENDIX 2:
JAMES R.W. on
COMPENSATION FOR UNEXHAUSTED IMPROVEMENTS4
The principle of “compensation for improvements” on land is firmly

entrenched in the statute-law. Historically, the first statute embodying it
is the Land Ordinance of 1923. The principle has been exemplified in
every post-Independence property legislation, which has provided for the
4
This Chapter is a slightly revised version of a Paper by the same title published in (1968)
E.A.L. Rev. 76.
Page 125 of 154
premature termination of a land-holder’s rights in land.5 The government

has, however, reserved the power to refuse to compensate the absentee
rightsholder.6 Compensation is payable by the person who takes the
benefit of the improvements. There is no legislative basis for the
application of the principle within the traditional sector and yet it has
become firmly established in the case law over the last ten years or so.
These cases are invariably concerned with a claim of the occupier and not
the owner. It is proposed in this Chapter to look at the question whether
the principle of compensation for unexhausted improvements was known
to early compensation law; in particular, to examine its scope and
application; and to analyze the existing case-law on this subject in order
to ascertain what rules of compensation are evolving.
A. Historical review
That a person who has occupational rights in land of another should be

compensated on the termination of his rights for the improvements which
he has carried out on the land is both an encouragement to grater land use
and an equitable solution to the conflicting claims of the landowner and
the departing occupier. The landowner wants to recover the land with all-
permanent improvements or structures effected thereon, but the
cultivator, on his part, has a personal property in the improvements. This
5
E.g. 22, Freehold Titles (Conversion) and Government Leases Act, Cap. 523; s. 13, Land
Tenure (Village Settlement) Act. No. 27/65; s. 12 (3), Land Acquisition Act, No.47/67. Some
statutes provide a procedure for depriving A of land which he owns and giving it to B, the actual
developer; B is then required to compensate A for the improvements for which A was responsible;
see s. 7(3) Nyarubanja Tenure (Enfranchisement) Act, No. 1/65; s. 7 Rural Farmlands (Acquisition
and Regrant) Act, 1965; s. 9, Urban Leaseholds (Acquisition and Regrant) Act, 22/1968.
6
S. 14 C, Land Ordinance, introduced by s. 9, Land Laws (Miscellaneous Amendments) Act,
No. 28/1970.
Page 126 of 154
principle of compensation for improvements was not known to early

customary law. The law had strove to protect the personal property of the
cultivator or builder in his improvements by granting him a right of
severing and removing the improvements immediately he vacated the
land an there appears to have been no principle comparable to the Roman
and common law one of quicquid plantatur solo, solo cedit.7
Annual crops create no complications to the system for they could be

harvested and taken away, and wattle and daub huts could easily be
removed. With the introduction of permanent crops such as coffee,
cashew nuts and fruits trees, and with the construction of buildings with a
high degree of attachment to the soil, the old system becomes unsuitable
and unworkable. In some jurisdictions outside Tanzania we find that this
new stage has given rise to the development of a principle of quicquid
plantatur solo, solo cedit and the cultivator is allowed no compensation
for his enhancement of the soil. For example in the Nigerian case of
Emmanuel Ladipo Adebiyi Francis v. Ibitoye,8 it was held that if a
person erects a building on the land of another without his knowledge or
permission, the building attaches to the land and the owner of the land is
7
In Headman Mwakilasa v. Kasisi s/o Mwakingwe (1946), appeal to the Governor, No. 133
(No. 17 of 1946), the defendant, having quarreled with the plaintiff, who was the headman of the
are in which he lived, moved to another area. Before leaving he dismantled the materials of his
house and took them with him. The headman maintained that the custom of the area (Itaga,
Rungwe) prohibited the removal of any material used in the construction of a house built on land
within the area. The Court held that the plaintiff’s interpretation of the custom conflicted with that
enunciated by the Native Court of Appeal and held that “materials such as those under
consideration which have been purchased by the owner of the house are his own property and may
be dealt with as he pleases”. See also Mtoro bil Mwamba v. A.G. (1953) 2 T.L.R. 327; Lukas
Kaasha v. Mfumwa Sangiwa II (1954) Digest No. 244, p. 2; cf. Farrar v. Adamji (1934) 16
K.L.R. 40; Sec. Of State v. Pilling, 1 E.A.P.L.R. 24. Various West African authorities recognise
the builder’s right of removing his improvements, e.g. Odunlami v. Sorogewun discussed in
Omolowun v. Olokude (1958) W.N.L.R. 130: Ward Price, Land Tenure in the Yoruba Provinces,
paras 316-21; M.O. Onwaumaegbu, Nigerian Law of Landlord and Tenant (1966) p. 224.
8
(1936) 13 N.L.R. 11: see also the Luo case of Ogola Ng’ela v. Olum Oludhe C.O.R. 7/1959
(see fn. 19 below).
Page 127 of 154
under no obligation to compensate the builder.9 Graham Paul, J., when

asked to hold that the plaintiff should receive the cost of the building
stated:
“I know of no authority for such a claim nor could plaintiff’s

Counsel refer me to any. It is trite la that a building erected
in the circumstances I have indicated becomes the property
of the landowner without any obligation upon him to
recompense the builder. The maxim quicquid plantatur solo
solo cedit applies without qualification.”
A principle of quicquid plantatur solo, solo cedit without a corresponding

principle of compensation for unexhausted improvements can give rise to
a number of unjust situations as is apparent in the Kenya case of Ruanda
Coffee Estate v. Singh.10 The common law Courts have at times tried to
avoid the injustices by devising new equities, and approach which has
eventually le the judges into subtleties and confusion. The Tanzanian
courts, under the influence of the statutory system, have, by the technique
of analogy, created rules and principles of “customary” law concerned
with granting compensation for unexhausted improvements. In none of
the cases has it ever been suggested that this principle finds its origin in
the earlier practices of the people. There is evidence (referred to below)
to the contrary. The earliest cases in which there have been references to
this subject are three appeal cases before (what used to be) the
Governor’s Appeal Board. The first is an appeal from the Kilimanjaro
9
However, in cases of standing-by or acquiescence, the builder may be allowed certain rights in
the land.
10
[1966] E.A. 564, see footnote 18.
Page 128 of 154
region, ostensibly concerned with Chagga customary law.11 The issue of

compensation for “unexhausted improvements” on land arose out of a
pledge transaction between the plaintiff’s and defendant’s ancestors
“three generations” before the action was commenced in 1946. The
evidence in he case established that P’s ancestor had pledged a plot of
land to D’s ancestor for a debt of a cow and a calf. P tendered a cow and
calf to D in 1945 and sought to redeem the land. on D’s refusal to vacate
the land P brought an action for redemption. In this action the Board held
that it cold not upset the judgement of the lower courts ordering the
redemption of the land, but it went on to hold that,
“It is manifestly inequitable12 that land valued so many years

ago at the price of one cow and one calf should be capable
of redemption today at that price without account being
taken of its present value and the improvements now existing
upon it as the result of the labour performed and expenditure
incurred by the occupiers during that long period of
uninterrupted occupation.”
The Board then went on to affirm the orders of the lower Courts for
redemption but, “on condition that the redemption price includes the
ascertained value of those improvements.”
The second case, decided in 1948,13 was concerned with a claim for
compensation by an occupier of land after he was ejected therefrom. His
occupation was established by the evidence to have been adverse to the
11
Melishoni bin Maimbi v. Mzee bin Rombo (1946). Appeal to the Governor No. 117 (No.
1/46).
12
Italics supplied.
13
Kijanga Ngaa v. Njengi Aluta (1948) Appeal No. 1/48.
Page 129 of 154
owner “for a long period of time.” The Provincial Commissioner at

Singida, in the course of hearing the appeal, requested expert evidence on
compensation for improvements according to Nyaturu customary law.
The Provincial Commissioner asked the experts the following question:
“The fact that an occupier had effected improvements to

land, e.g. building houses, planting permanent crops or
developing it in other ways, would [this] entitle him to
compensation from a successful claimant …?
The experts’ answer to the question was, “no compensation payable.”

The final case is Christopher s/o Kashwa v. Kagaruki s/o Mashebe,14 a
case from Bukoba district. The plaintiff claimed possession of his land
from the defendant who had purported to purchase it from the plaintiff’s
tenant. The Court made an order for possession, but held that it should be
conditional upon the plaintiff refunding to the defendant the value of the
unexhausted improvements on the land at the date of repossession. The
expert evidence in the Court of first instance was that compensation for
improvements was not known to Haya law, which was the law in issue.
What then is the true basis of the Court’s power to make an order for
compensation for unexhausted improvements? It is submitted that these
authorities conform the present contention of the absence of any such
principle under early customary law and point to the fact that the Courts’
power has its roots in equity. As such the compensation principle is not
confined to districts where proprietary rights in land have evolved, but is
14
(1951) Appeal to the Governor No. 13/50.
Page 130 of 154
applied in Usukuma, for example, and other areas where there is no

concept of individual ownership of land.
B. Principles of Compensation
The starting of any discussion of rules and principles governing the

liability of a landholder to compensate a developer of his land is to draw a
distinction between the various circumstances under which land may be
occupied by a cultivator who claims compensation for his unexhausted
improvements. Developments may be effected either, (a) in pursuance of
a grant of occupational rights inland,15 or in the exercise of legitimate
occupation of land, even though no grant was ever made; 16 or (b) during
adverse occupation of land. The rules governing the award of
compensation depend upon which situation exists and they vary
accordingly. There are good reasons for this dichotomy. The first arises
out of the object of compensating the developer of land. If his occupation
arose out of an expressed or implied grant of occupational rights, the
reason for compensating him is that the reversioner benefits when he
vacates the land. If his occupation was adverse, the basis of any award of
compensation is both the benefits bestowed on the proprietor and a
punishment on him or his failure to develop and effectively protect his
land. This distinction, based on the manner of occupation, further allows
equitable considerations, e.g. many people would agree that if an
occupier was followed in occupation of premises he should be
compensated for his unexhausted improvements; not many would allow
an adverse possessor this right except when his original occupation was
under circumstances which misled him into developing the land.
15
E.g. customary tenancy, pledge, licence or the like.
16
E.g. “permissive occupation” of communal land by members of a landowning group.
Page 131 of 154
Liability to compensate an adverse occupier is, therefore, subject to a

number of technical rules, which have, no application when the Courts
are concerned with a case where occupational rights were granted.
1. Improvement Effected Pursuant to a Grant
(a) Compensable improvements. The cases fall into two groups:

actions by the grantees who had occupational rights in land against the
reversioner, on the termination of their rights. And actions by members
of a landholding community, e.g. a clan or tribe, who had, without the
express permission of the land allocating authority, occupied communal
land and developed it, but had lost their right of occupation when the land
was later allotted to another.17 In both groups of cases the Court will only
make an order for compensation for unexhausted improvements where
the improvements which the out-going occupier effected on the land were
in accordance with the type of land, e.g. cultivation of arable land or a
building constructed on building land, or where the improvements fell
within the terms specified in the grant.
These principles are established in very recent cases of the High Court.
Two of the clearest judgments on this topic were given in Hussein
Sembua v. Alli Yeteri18 and Nicodemo v. Sindato.19 Both cases arose
from the Kilimanjaro region though the former was from Upare and the
latter Uchagga. In Hussein Sembua’s case, the plaintiff sued the
defendant for compensation for crops, which he had planted on
17
A member of a landowning group has permissive rights of occupancy on the communal land
and his occupation, even though without permission, is not deemed to be adverse: see H. Cory and
M.M. Hartnoll, Customary Law of the Haya Tribe (1945), p. 115; Hussein Sembua v. Yateri
(1962) L.C.C.A. No. 23/62; Nicodemo v. Sindato (1964) L.C.C.A.No.17/63.
18
Judgment by Murphy, J. (For the reference see footnote 14).
19
Judgement by Spry, J. (Reference given in footnote 14).
Page 132 of 154
communal land which was later allotted by the Native Authority to the
defendant. The Court of first instance held that the defendant was liable
to compensate the plaintiff for the improvements which he acquired when
the land was allotted to him. The defendant appealed against the decision
on the ground that he was so liable. The local court of Appeal upheld the
decision of the Court below as to liability and increased the
compensation. On a second appeal to the District Court it was held that
no compensation was payable. The main ground for this decision was
that the plaintiff was given an opportunity to remove his crops before the
land was re-allotted. On a further appeal to the High Court, that Court
reversed the judgement of the District Commissioner and restored the
judgement in favour of the plaintiff.
Substantially similar facts were presented to the High Court a year later in
Nicodemo v. Sindato,20 where the appellant, Elisamia, was allotted a
kihamba in 1949. This included some land, which had been cultivated as
a shamba for a considerable time by the respondent, Amosi. Amosi was
not present when the allotment was made and he was not notified of it.
Elisamia began developing the other part of his kihamba. Meanwhile
Amosi, in ignorance of the allocation, began planting bananas on the area
in dispute. Elisamia alleged that Amosi continued planting after being
told to stop. Elisamia took proceedings in the Hai Divisional Court to
establish his right to possession of the land. He was successful as regards
that issue, but was ordered to pay shs. 635/- as compensation to Amosi
for the improvements on the land. This figure was assessed at half the
usual rate, the Court considering that while Amosi was entitled to
20
This judgement contained other important pronouncements bearing on the issue of whether a
proprietor is bound to compensate an occupier for improvements effected on land after the
termination of the latter’s occupational rights therein – see post p. 297.
Page 133 of 154
compensation because he had not known of the allotment, it was not fair
that Elisamia should pay full compensation, when he had done nothing
wrong. The Chagga Appeal Court reversed this decision, holding that the
disputed area was not included in Elisamia’s kihamba. They reached this
decision after inspecting the land and deciding that the boundary as not a
ravine, as the local court had held, but a small ditch. The Regional Local
Courts Officer reversed that decision, again after inspecting the land, and
restored the judgement of the Hai Divisional Court. Against his decision,
both parties appealed to the High Court. Elisamia submitted that he
should not be required to pay compensation, while Amosi argued that he
should either receive the disputed land, or, at least, be awarded full
compensation. The assessors who sat with the judge were of the opinion
that Elisamia’s right to the land by allotment as a kihamba had been
established, but that Amosi should receive full compensation. The judge
accepted the advise of the assessors and held that the award of
compensation is not in any way a punishment of Elisamia but merely a
reimbursement to Amosi of what he has expended in improving the land,
the benefit of which will be enjoyed by Elisamia.21
21
See further Ogengi Kani v. Masangia Nyabangi (1965) L.C.C.A. No. 36/66 (Musoma district,
Mara region). The appellant Kani, was allowed compensation for the unexhausted improvements
he carried out on land which was later allotted to the respondent by the Parish Council. Wangaeli
Elia v. Nathan Materu (1962) L.C.C.A. 33/62; P sued for compensation for improvements
effected on D’s land by P’s brother, whose heir he was. It was not disputed that the deceased
occupied the land with the consent of the owner. The issue was whether he had any right to
compensation for the improvements he effected on the land and whether such rights passed to his
heir. The Court answered both issues in he affirmative. It is in this respect that customary law
could prove far superior to English law which is hidebound by conceptualism: cf. Ruanda Coffee
Estates Ltd. v. Singh [1966] E.A. 564, A, under the grant of a licence, expended shs. 27,000/- in
constructing a house and shop on B’s land. B sold the land which eventually was bought by the
plaintiff. A’s heir D who occupied the land after A’s death was sued by purchaser for mesne
profits and to give up possession of the buildings. D claimed compensation for the improvements
effected by his father, A. The Court of Appeal held that the licence was personal to A, and D was
in unlawful occupation.
Page 134 of 154
(b) Non-compensable improvements. It is important to observe

that in the cases referred to in section (a), the occupiers made agricultural
improvements on agricultural lands. None of the cases suggests tht an
occupier would be entitled to compensation for “any and all” of the
improvements he carried out on the land during his occupation. For
example, if A occupies land under an occupational grant and he goes on
to fence it or plant permanent trees thereon, this is an act tantamount to a
claim of ownership and it is classified as “misbehaviour” in customary
jurisprudence.22 We may go on to suggest further that even if A’s
occupation was under a grant of occupational rights, because such acts
are tantamount to ownership, they will give him no right to
compensation, but are rather grounds for forfeiting his occupational
rights.23 Identical consequences would ensue if, on a grant of land, it was
stipulated by the grantor that the grantee was not to enter into a course of
conduct and he disregarded the grantor’s instructions. This is so,
irrespective of the nature of the land.24
22
See infra pp. 75, 276, Cf. Ogola Ng’iela v. Olum Oludhe (1959) C.O.R. p. 5” “In Luo
customary law, land given merely for cultivation does not entitle the cultivator to build a house on
it, unless he has permission. If he does build he would forfeit his right to occupy the land and then
even if the house is expensive and permanent it may nevertheless ensure to the owner of the land.”
23
The principle of forfeiture for misbehaviour is well established in Nigeria; see for example,
Alege v. Ogundipe (1957) W.N.L.R. 211; Akinrinlowo v. Anwo (1959) W.N.L.R. 178. Kaguo v.
Limo (1964) Digest 253 (T) is an oddity. There the Court in hearing an appeal over land situated
in Upare, held that if the occupier of land planted trees thereon without objection from the owner,
he cannot be dispossessed so long as the trees survive.
24
See Ringita Nyoraro v. Omari (1965) P.C.C.A. 38/1965: R allowed O to occupy a plot of land
and use the fruits from the banana, sugar cane and fruit trees thereon. O was expressly forbidden
from planting permanent trees. O defined the condition of his tenancy and planted banana and
mango trees. R successfully sued him for possession. He counter claimed for compensation and
was awarded shs. 839/-. On a subsequent appeal by R to the High Court, Kimicha J., held s
follows:
“The trial court was satisfied that the shamba belonged to Ringita and that he had allowed Omari
to cultivate it on condition that he did not plant permanent plants. This is to say, although Omari
entered the land lawfully he became a trespasser the moment he planted the permanent plants in
defiance of Ringita’s conditions. He cannot therefore, be allowed by the courts to benefit from his
illegal act.” Quaere whether there is automatic forfeiture. There are no local cases on this point
but the consensus of Nigerian authorities is to the effect that forfeiture is not automatic, Lamwani
v. Tadeyo (1944) 10 W.A.C.A. 37; Rickets v. Shote (1964) Vol. 1 N.L.Q. 52; Oye v. Chiabola
(1950) 19 N.L.R. 107; Coker v. Jinadu (1958) L.L.R. 77; Adeleke v. Adawusi (1961), All N.l.R.
37; Aminkuowo v. Fafimoju (1956) N.M.L.R. 349.
Page 135 of 154
Where a proprietor allows a stranger to remain in possession of his

premises either gratuitously or as a customary tenant and the latter effects
repairs and other improvements which are not forbidden by custom and
were in the contemplation of the parties, the occupier is entitled to
compensation for such improvements, for example, if the property
consists of a building and the tenant constructs and extension which
improves the utility of the building.25
The principle of compensation for unexhausted improvements must, it is

suggested, be applied with due circumspection for an occupier should not
be able to improve the owner out of his land altogether. A good test for
the Court to apply before making an order for compensation in such cases
is to ask whether the improvements are reasonably necessary. The
occupier should recover for reasonable improvements, which
permanently increase the value of the property, but not for extraordinary
improvements made without the consent of the owner.
2. Improvements Effected By Adverse Possessor
The two earliest reported decisions on the rights of a stranger who has
cultivated another’s property are to the effect that the stranger does so at
his own risk, and he cannot subsequently maintain an action for
25
For example in Henry Ndetaramo v. Elipita d/o Yona (1965) P.C.C.A. 11/1964 (Moshi
District): A allowed R to stay in his house at firs rent free but later he gave him a contractual lease
for ten months, at a monthly rent of shs. 15/-. Within the period of 10 months R built a kitchen
and a latrine as an extension to the house. On the termination of the lease she claimed the total
cost of labour and materials for the additions to the house. A argued that he was under no
obligation to compensate R for the improvements which were constructed without his permission.
He admitted, however, that the two conveniences were not available in the house and further that
they were necessary for the use of that house. The Court held that A “has now got back the house
with these conveniences and it is but just that he compensate the respondent for the work done to
his house for his benefit.”
Page 136 of 154
compensation, nor has he any enforceable claim to the crops which he has
planted.26 However, the decision of the High Court in Luka Mlele v.
Athumani Kisimbo27 brought new considerations to the forefront. In that
case A sued for a plot of land which L had cleared and cultivated. L did
not dispute A’s ownership of the land, but claimed compensation for the
expenses he had incurred in clearing the land. The Appeal Court found
that L had encroached on A’s land. On the issue of compensation, having
regard to the findings, the Court said:
“I think the essential remaining questions are:-
(a) did Luka enter on the land under a genuine claim of

right?
(b) Did Athumani knowingly acquiesce in the clearing of

the land by Luka?
The Court found that there was not “an inadvertent encroachment”. In
answer to the second question the Court made the following significant
remarks:
“As regards (b), Luka asserts that he had been clearing and
cultivating the land for five years, Athumani says that the
land was only cleared in the year when the dispute arose.
This difference seems to me vital. If Luka’s evidence on this
was true, it is hard to believe that Athumani was ignorant of
26
Mtambo d/o Sekiwonde v. Mame Hela d/o Semkini (1955-56) Digest No. 81, p. 2; Ndeonasia
Ndesario v. Shifwaya Cornelio (1955-56) Digest No. 83, p. 3.
27
(1964) L.C.C.A. No. 26/1963 (Upare).
Page 137 of 154
what was going on, on the other hand, if the clearing had
been recent, Athumani might have been unaware of it. On
all these points, it seems to me that the burden of proof was
on Luka and that he failed to discharge it. I think, therefore,
that this appeal must fail.”
This judgement postulates the satisfaction of two essential principles

before an adverse possessor would be allowed compensation for
improvements he has effected on land. They are, first, his occupation
must have been under a mistake (it is not clear whether a mistake of la
would satisfy this fist principle);28 secondly, the owner must have known
that a stranger had been cultivating his land and he made no protest, i.e.
he acquiesced in the acts of the stranger. The Courts would presume
knowledge where the adverse cultivator had been using the property for
long time, especially under circumstances where the true owner ought to
have known of the other user, e.g. if he was living not far from the plot at
the relevant time. Where knowledge is proved on the part of the owner
and there has been no protest from him, the circumstances justify the law
imputing permission for the stranger to cultivate the land.29
28
There’s authority for an assertion that the Courts will not draw a distinction between mistake
of law and mistake of fact. In Josephat Kabiyengo v. Laurian Kyoba s/o Nshange and another
[(1968) C.A. No. 43/1967] Josephat sued in the Primary Court at Katona claiming the right to
redeem a clan shamba sold by the second to the first defendant. The shamba was inherited by the
second defendant who sold it without permission of the clan elders. The Primary Court Magistrate
made an order for redemption of the shamba by the plaintiff on condition that he refunded the
purchase price (600/-) to the prospective purchaser. The District Magistrate, after taking further
evidence and visiting the shamba, found that it was planted with coffee trees to the value of shs.
2,000/-. He found that Josephat had known of the sale and Laurian had improved the land under a
mistake belief of title. The District Magistrate therefore increased the redemption price to shs.
2,600/-, being as to shs. 2,000/= for improvements and shs. 600/- for the purchase price. This
judgement was affirmed by Mustafa., J., in the High Court for Josephat had known of the sale for a
considerable time and he deliberately waited until the shamba had been improved before filing his
action.
29
Cf. Lukas Kaasha v. Mfumwa Sengiwa II (1964) Digest No. 244, p. 2.
Page 138 of 154
It should be observed that mistake and knowledge are cumulative tests;

one without the other would not justify the court making an order for
compensation. For example, if A encroaches on B’s land knowing that he
is not the owner, he would have no right to be compensated for
improvements he effected thereon, even if he can establish that B
acquiesced in his occupation. Conversely, if A acted under a mistake of
title and B had no knowledge of his occupation or that he was cultivating
or building on his land, as the case may be, A would not be entitled to
compensation. These rules are exemplified in Nicodemo v. Amosi
Sindato, the facts of which are set out above.30 Amosi was held to be
entitled to be compensated for such improvements he effected before the
allocation of the land to Elisamia. On the other hand, he was not entitled
to be compensated for the banana trees he planted after he was notified
that the land was allocated to Elisamia. The reason being that he could
not, after such notification, claim to be occupying the plot under a
mistake. Mukare Sambweti v. Meuti Sambweti 31 goes a step further and
expounds that the owner who has been prevented from having possession
of his land would be entitled to damages for the adverse occupier’s
wrongful use of the land.
The requirement of “genuine mistake” by the adverse occupier and

knowledge of his occupation (without protest0 by the proprietor represent
the cleavage between the cases where occupational rights are granted and
those where no occupational rights are granted. This distinction is not
merely a desire for technicalities by the Courts, but has its foundation in
30
Ante p. 293. In Jafenia v. Musuka (1967) C.A. 160/6, the Court held that as a “sale” of land
is not recognised by Sukuma customary law an attempted purchaser who knows perfectly well that
sale in the area is illegal would not receive compensation for the improvements he added to the
land.
31
(1966) C.A. No. 7/1965 (Case arising from Arusha district).
Page 139 of 154
equity. It is based on consideration that in the case of adverse possession

there is per se no right to compensation, but if there is detrimental
reliance on the conduct of another, which at the same time results in a
profit to the defaulter, there is sufficient ground for relief.
3. Assessing Compensation
It is impossible to play down principles, which the Courts will follow in

arriving at “full and fair” compensation. The rules are diverse and
conflicting, varying from area to area. The lack of uniformity as to the
method of assessing compensation could lead to great discrepancies in the
ultimate figures arrived at, even though the items for which compensation
is given are the same. Underlying many of the discrepancies in the case-
law is the degree of prosperity of one area as opposed to the other. In
Hussein Sembua v. Alli Yateri,32 the possibility of discrepancies was
tacitly accepted. The Court of first instance assessed the compensation to
be awarded to the plaintiff as being shs. 363/- and the Local Court of
Appeal assessed it to be shs. 1,243/-. On a further appeal Murphy, J., in
the High Court, restored the trial judge’s order observing that the
difference in the assessment was the result of the former Court applying
Pare customary rules whilst the latter applied Chagga law. He thought
that Pare law was the fairest in the circumstances since the parties were
32
(1962) L.C.C.A. 23/1962.
Page 140 of 154
both Wapare. There is no indication in the judgement as to whether the

land was situated in Upare or Uchagga.
Case-law suggests a number of approaches to the assessment of

compensation: (i) Assessment on the basis of the expenditure of the
occupier and not on the actual valuation of the land at the time of re-
occupation by the owner. The Court will ask the pertinent questions;
what is the cash value of the occupier’s capital expenditure in terms of
energy and money, e.g. the cost of clearing the plot, etc? What was his
recurrent expenditure? (ii) On the other hand, it may proceed on the basis
of the value of the improvements at the date of re-occupation by the
owner, i.e. the value of unexhausted improvements.33 This later method
is based on the “benefit of proprietor” criterion. For example, if the
improvement is a building, its value to the proprietor would be the
amount which would be spent on erecting a similar building less
depreciation in respect of the age of the old building in comparison with a
new one. (iii) The third approach for compensating for trees, adopted in
may districts including Uchagga and Buhaya, is to have an arbitrary price
for each type of tree: shs. 10/- for each banana tree in Chaggaland, shs.
5/- in Buhaya.34
One recent development by the Courts is that in arriving at compensation,

irrespective of which method is used, there would be set off against the
value of the improvements the benefits to the occupier whilst he was in
occupation of the land. For example, in Ogengi Kani v. Nyabangi,35 the
High Court reduced the award of the Court of first instance from shs.
33
This method of calculation takes account of economic changes, the former is simply
reimbursement for improvements.
34
Compare Nicodemo v. Sindato with Muganda v.Bocko (1968) H.C.D. 89.
35
(1965) L.C.C.A. 36/1965 (case from Musoma district).
Page 141 of 154
1,800/-36 to shs. 1,400/-, on the ground that the occupier had, during his
occupation of the land, reaped the fruits of his labour. And in Samuel
Kivara v. Chaligha,37 where the occupier had been in occupation of the
appellant’s land from 1962 to 1965 under a Court order, the High Court,
reversing that order, held that the appellant was to be repossessed of his
land. On the issue of whether the occupier should be compensated for the
improvements he carried out on the land the Court observed that the
judgement of the Court of first instances was delivered four years ago and
by virtue of that judgement the respondent had remained in possession of
the appellant’s land since then. It was, therefore, not in the interest of
justice that the appellant should be subjected to further litigation or
negotiations regarding unexhausted improvements on the land made by
the respondent. It therefore ordered that the appellant was to be given
immediate possession of the land without paying compensation for any
unexhausted improvements to the respondent.
36
The Court of first instance used the first method specified above in assessing compensation.
37
(1966) L.C.C.A. 86/1965 (from Upare).
Page 142 of 154
NON-UTILIZATION AND LAND RIGHTS
Chapter 7 examines the principles of land tenure and economic

development in the public sector of the land tenure structure. It is stated
that the Land Regulations do not apply in the traditional sector, but that
some legal techniques are adopted in that sector in order to enhance the
development of the land. In this chapter it is intended to pursue this
subject in greater detail.
D. Neglect
Writing of the Hehe, Brown and Hutt state that “the plantations for root
crops, often at a distance from the house, only remain the property of the
cultivator as long as he uses them … Continuous cultivation is also
necessary to retain … dry weather plantations”.1 This idea of landholding
depending on beneficial user is a recurring theme in nearly every study of
customary land tenure. As a principle it still prevails in areas where
proprietary rights inland have not evolved or wherever the land is held
communally. Under these forms of land tenure the controlling authority
may re-possess itself of, or re-allocate, land which is not kept under
effective cultivation. These important points are made by Dobson in his
comparative study of the land tenure of ten Tanganyika tribes.2 In that
paper he asserts that among the Warusha, Wasambaa and Bahaya,
effective cultivation is not always a condition of land holding. We may
also add the Wachagga to his list. But among the Wasukuma,
Wanyamwezi, and Wagogo, effective cultivation is a condition of land
1
Anthropology in Action, p. 131.
2
E.B. Dobson, “Comparative Land Tenure of Ten Tanganyika Tribes” (1954) 6 J.A.A. 80.
These are the Warusha, Wasambaa, Wagogo, Warimi, Wanyamwezi, Wasukuma, Wakerewe,
Bahaya, Wahangaza and Wakuria.
Page 143 of 154
holding. It is interesting to note that it is in those areas in which the four

former tribes are settled that there is land shortage and yet effective
cultivation is not a prerequisite of security of title, whilst in the areas
which the latter three tribes occupy, there is no land shortage. The
significant difference of the two standards in relation to land utilization
arises form the difference of the two standards in relation to land
utilization arises from the difference in the system of proprietary holdings
of these tribes. While the former group of tribes recognizes individual
titles and permits sales of land, the latter tribes do not recognise
individual ownership and they forbid sales of land. With the development
of individual proprietary rights there evolves the principle of security of
title and the title holder may allow the land to fall fallow without the
possibility of being deprived of his title on grounds of neglect.3
Effective cultivation is, however, still a means of reducing virgin land

into ownership in all areas. For example, in Silanga Kimenenga v.
Masoni,4 Spry, J., accepted the evidence of the assessors to the effect that
according to Pare customary law, land belongs to the first person who
actually clears it. So that in the case before the Court, where it was
established that the appellant occupied vacant land and rented it out to the
respondent who cleared and cultivated it, the Court held that the former
could not have passed any rights in the land to the latter, but rather the
land belonged to the respondent for he was the first person who actually
cleared and cultivated it. Utilization is also a condition precedent to
reducing a grant of land into ownership. For example, in Siyanga
3
See statements of Chagga law concerning the kihamba in Akosi v. Thomas (1953) Digest, 17;
Mtauli v. Kitutu (1947) App. Case 37/47. See also Mzee Walipesa v. Mgeyo (1969) C.A.
128/1966 (Kigoma).
4
(1962) L.C.C.A. 42/1962.
Page 144 of 154
Kisarika v. Thomas Ngatuni,5 the Central Court of Appeal accepted as a

correct statement of Chagga law the evidence that, “a person given a
kihamba only takes ownership of it piecemeal according to his planting of
permanent or semi-permanent crops or building his house …” Cory and
Hartnoll, discussing Haya customary land tenure,6 state that the applicant
for arable land is usually asked by the allocating authority what he
intends to do with the land. If he states that he intends to cultivate it, he
is bound to do so. Should he not cultivate it within two years or so,
without a reasonable excuse for his default, he may be deprived of it. The
authors cited the case of Fidele v. Antoni,7 as illustrative of their
assertion.
1. Forfeiture of Occupational Rights
The period of neglect likely to cause a forfeiture of occupational rights in

land varies from tribe to tribe. So far as the Haya and some other tribes
which have laid down rules on the subject are concerned, the period is
normally three years.8 But it appears any stated period is not so rigid that
5
(1953) Digest 15; Laurent Ochala v. Tembo Odoyo (1967) C.A.D./5/1966: Where two rival
claimants assert right to land, the land belongs to the one who developed it first, irrespective of
whether he was allocated it last in time.
6
H. Cory & M.M. Hartnoll, Customary Law of the Haya Tribe (1945) paras 531-3.
7
Chief’s Appeal Court No. 25/1938; Fidele was allocated a mbuga on payment of the allocation
fee (kishembe). He went to the Congo without either planting it or building a house on it. After
some time the Mukanga (allocating authority) re-allocated it to the defendant for a further fee.
After being away for a year, Fidele returned and claimed the plot. The Court held that since he
had done nothing to the plot he had forfeited all possible rights to it. It was, however, represented
to the writer that in Bukoba a man may, with permission, acquire land which he does not intend to
cultivate immediately but which he intends eventually for his sons. In this case he must cultivate at
least a small part of it annually with seasonal crops, or allow others to do so, in order to show his
interest in the land. Cf. Cory & Hartnoll op. cit. para, 539.
8
See Basic Rules of Land Ownership According to Customary Law passed by Iringa District
Council; also R.G. Abrahams, The Political Organisation of Unyamwezi (1967) writing on the
Wanyamwezi, see in particular Chap. 7. The draft Rules of Customary Law, rule 9, provides that
any person who fails to develop land for 3 years “without good reason” would lose it, but “non-use
of land for 3 years for purposes of fallowing should not constitute failure to develop the land
without good reason”.
Page 145 of 154
the Courts cannot depart from it. In Ambonisye Mwafuma v.

Mwakikota,9 the Appeal Court held that a Court of law has power to hold
any custom or enacted period which has the effect of dispossessing
someone for allowing his land to lie fallow for a very short period (1 year
in that area), is contrary to “natural justice”. The Court further held that it
would not be deterred in its finding by reason of the fact that the land was
required for other cultivators. It is submitted that the statement of the
Court on disregarding a statutory rule is incorrect, but a Court of law can
invoke its equitable jurisdiction by, for example, requiring a notice of
intention of determination to be given to the defaulter.10
Forfeiture for neglect is not automatic: that is to say, a person would not
automatically lose his land for neglect, but the land authority has a
discretionary power to exercise a right of forfeiture. This power may be
impliedly exercised when the allocating authority re-allocates the land to
a stranger. In an action taken to enforce forfeiture, the Court has an
opportunity to interpret these rules consonant with equity and may grant
relief against forfeiture in cases where the circumstances occasion this
course of action. Alleviating circumstances are such cases when
omission was due to illness. In areas where the recognised agricultural
practice of fallowing is practiced along traditional lines, the concept of
neglect can find only a limited place.
2. The Modern Trend
9
(1960) Digest No. 176.
1 0
Cf. Director of Land and Mines v. Sohan Singh (1952) 1 T.L.R. 631: Australian Blue Metal
Ltd. v. Hughes [1962] 3 W.L.R. 802.
Page 146 of 154
Local Government Council have been given wide powers of providing

for, the control of plant diseases and destruction of injurious plants or
insects; the control of methods of husbandry including the control of bush
firing; control of movements, keeping and diseases of animals. They may
require any person within their jurisdiction to cultivate sufficient food
crops for the subsistence of himself and his dependnts. 11 In addition,
Councils have wide powers to provide social services. These include
services for the improvement of livestock and agriculture; facilities for
rural development and settlement.12 They may provide roads, housing
estates, layouts and number of other amenities.
Local authorities almost everywhere have attempted to secure some land

utilization by by-laws made under their statutory power. Some have
prescribed steps to be taken by the occupier of agricultural lands to
maintain and improve productivity and to preserve the fertility of the
soil.13 As we noted in Chapter 7, failure to comply with these regulations
does not permit a forfeiture of the occupier’s interest, but constitutes a
criminal offence. A defaulter may be liable on conviction to a fine not
exceeding two hundred shillings, or to a term of imprisonment not
exceeding two months, or to both a fine and term of imprisonment. Some
criminal prosecutions have been made and there is always dissatisfaction
concerning the exercise of the powers of arrest of Area Commissioners
for non–compliance with these by-laws. Recently, in the National
Assembly, Mr. Mwakitwange, who was at that timed an MP accused the
Regional Commissioners of violating the Constitution of the Republic by
1 1
The powers are set out in sections 52 & 59 of the Local Government Ord. Cap. 333.
1 2
See also the Agricultural Products (Control & Marketing) Act 1962, ss. 3, 6, 12 & 13.
1 3
For some subsidiary legislation promulgated on these topics, see Lindi Town Council, G.N.
89/1958; Songea District Council G.N. 263/65; Shinyanga District Council, 168/66; Mbinga
District Council 514/1965 & 185/1966.
Page 147 of 154
detaining persons who did not farm the minimum acre of land. Mr.
Barongo, Regional Commissioner for Ruvuma, pointed out that the
detentions in his region were consistent with by-laws passed by the
Songea District Council and approved by the Minister of Local
Government.14 The number of arrests far exceed those cases which are
actually prosecuted in Courts.
Nasoro Asumani v. R.15 raised special problems on the application of

these by-laws. The accused was convicted of failure to cultivate the
minimum acre prescribed by the by-law in question. He pleaded guilty
but raised the point that the plot of cotton cultivated by him, while less
than an acre, was never measured by Local Authority prior to cultivation.
Through sympathizing with him Hamlyn, J., felt constrained to dismiss
his appeal pointing out that as the law stands, the occupier of land is duty
bound to ensure that the cultivated area is not less than that prescribed,
and if he failed to do so, a conviction is inevitable. The Judge, however,
exonerated the accused on practical and moral considerations. He
observed:
“It would appear that many small holders maybe in some

doubt as to what area of land does in fact constitute the
minimum area required by law to be cultivated. It seems that
it would be of assistance to small holders if the District
Council or some such authority could assist in this matter by
making available some person who could advise as to
whether the plot it is proposed to cultivate conforms to the
local requirements of the area.”
1 4
The Nationalist, Friday, June 23, 1967.
1 5
(1967) Crim. App. 77/67. (1967) H.C.D. 182.
Page 148 of 154
Alternative to the recommendation made by the judge, the by-laws may

rather than measure in acreage, use a denomination with which the local
people are acquainted, e.g. pace.
E. accumulation of excessive land
Neglect may be due to many causes. One obvious one is the fact that the
landholder has more land than he and his family can effectively cultivate.
A perennial question is whether this fact by itself provides adequate
grounds for depriving a landowner of a portion of his land? It was very
common in olden days for a person with too much land to lend or give a
portion of it to a member of the community who had insufficient or no
land. in some respects leases have taken the place of loans and gifts.
Some societies, therefore, provided rules for depriving their members of
excessive land or a portion thereof, e.g. the Kipsigis of Kenya.16
This does not appear to be the case in Tanzania. The judges have
assiduously protected the principle of sanctity of property rights. For
example, in Mtongori Nyamagaini v. Richi,17 the appellant was owner of
a very large piece of land. The defendant who had been away from the
district for some years returned and wanted a piece of land for cultivation.
He made several unsuccessful approaches to the appellant for a portion of
his land. Eventually, the elders of the village appreciating the defendant’s
plight allocated him 2½ acres of the appellant’s land without his consent.
The Primary Court found in favour of the defendant on the ground that a
1 6
See Kiprono Koras v. Langat (1959) C.O.R., p. 2 (Kericho district): This rule was upheld by
the Court.
1 7
(1966) L.C.C.A. No. 62/1965 (Musoma District, Mara region).
Page 149 of 154
Court must help the defendant because “he has to get a certain piece …
for cultivation because he is also an inhabitant in that area.” On appeal to
the Magistrate’s Court, that Court upheld the decision of the lower Court
on grounds that “the appellant’s land appeared to be too large” and “the
respondent being a local inhabitant ought to have a piece of land on
which to settle.” The appellant appealed successfully to the High Court.
Kimicha, J., made the following pertinent pronouncement:
“There is one point which I would like to draw to the

attention of the lower courts and that is our Courts are
courts of justice and not courts of morality. Their duty was
to decide whether or not the appellant had established his
claim to the land and they were wrong in basing their
decision on whether the respondent being a local inhabitant
had a moral right to a piece of land in the area. This is a
wrong and dangerous principle and could have very
unpleasant results if extended to other types of property.
Those who have many houses, or livestock, for example,
could be forced to part with some of them if the elders were
of the opinion that they had more than enough and that some
other persons of the locality had moral rights to them. The
elders who allocated the appellant’s land to the respondent
acted very highhandedly and it is to be regretted that their
action had the blessing of the two lower courts.”
Page 150 of 154
In Gidion Mubusi v. Boke,18 the North Mara Council Court reversed the
decision of the lower Court which was based on the sanctity of property
rights and found for the defendant on the ground that the plaintiff had
more land than the defendant. Spry, J., in the High Court restored the
judgement of the lower Court, holding that he was no merit in the reasons
given by the North Mara Council Court for reversing the local Court’s
decision. The assessors who sat with him were of the same opinion. On
the other hand, there is authority for the view that a person who
accumulates an excessive area of communal land may be made to give up
portions thereof by the land-allocating authoirty.19
F. abandonment
1. Definition
Abandonment has been defined in Dumji v. Gudka20 as “cesser of

occupation without animus revertendi”, i.e. an intention of returning. As
such, there are two elements to the concept: the factum or physical
discontinuance of occupation of the land and animum, i.e. the intention of
the former occupier to abandon or relinquish his interest. Such intention
may be expressed or be imputed. Time is not ipso facto an essential
element of abandonment. Lapse of time may, however, be evidence of an
intention to abandon land and where some length of time, long or short,
out of occupation of land is evidenced by acts of commission or
omission,21 manifesting an intention to abandon the land, then absence
1 8
(1964) L.C.C.A. No. 53/1963 (Watende).
1 9
Semali s/o Kitongota v. Aiwinyi s/o Nderungo (1946) App. Cas. No. 36/1946: Israel Kasitai
v. Sungare (1954) Digest No. 67.
2 0
(1953) 20 E.A.C.A. 78 at p. 79.
2 1
Cf. Yoseph Tindibale v. Munyangani (North Nyanza district) (1965) C.O.R. p. 9; Marauni
Kololi v. Karre Wambula (North Nyanza district) (1965) C.O.R., p. 11; Oaster v. Henderson
Page 151 of 154
from occupation may be the determining factor in an issue of

abandonment. Absence may also be sufficiently prolonged or
unintermittent to compel an inference of a cesser of occupation or title.
The question then becomes one of degree.22 If occupational rights are in
issue, the inference may more easily be drawn than is the case where
ownership is in issue.23 But, prolonged delay may shift the burden of
proof on the claimant to repel the presumption that this rights have ceased
and in order for him to do so he must at all events establish a de facto
intention to return. The authorities suggest that he would have discharged
this onus if he manifested his intention to return by some formal outward
and visible act, e.g. installed a caretaker or other representative 24 on the
premises, or left tenants in possession therein; or planted permanent trees
and return at intervals to look after them.25
2. Application of Concept
The concept of abandonment is entrenched in the statute-law of Tanzania.

For example, a statutory right of occupancy may be revoked on
abandonment or non-user of the land for a period of five years 26 and a
derivative right granted under the Land Tenure (Village Settlements) Act,
1965, may be forfeited where the rights-holder abandons the land for a
period exceeding 6 months.27 It is, therefore, small wonder that the
(1877) 2 Q.B. 575.
2 2
Cf. Brown v. Brash [1948] 1 All E.R. 922; Egbuche v. Chief Adigo (1934) 11 N.L.R. 140
(Nigeria).
2 3
Cases concerned with the Rent Restriction Acts are of some guide when occupational rights
are in issue: see Virdee v. Braganza (1952) 25 K.L.R. 76, compare with Skinner v. Gleary [1931]
2 K.B. 546.
2 4
See Rabau Lugunya v. Busyanya (1953-54) Digest No. 68, p. 5; Birusha s/o Kondon v.
Ngaragare s/o Rugundu (1963) Digest No. 233, p. 7; Cf. Ondiba Omwamba v. Osoro Omwamba
(Sth. Nyanza district) (1960) C.O.R. p. 1; Brimino Ng’ong’a v. Barondo (1954) C.O.R., p. 7
(South Nyanza).
2 5
Silanga Kimenenga v. Masoni (1962) L.C.C.A. 24/1962.
2 6
Cf. S. 10 Land Ordinance (Cap. 113).
Page 152 of 154
concept is of such importance has planted permanent crops or has fenced

his land he cannot lose his title no matter how long he remained away
from the land.28 The judgement in Mangi Paul Augustine v. Kitutu29 goes
even further and it has given recognition to the proposition of Chagga law
that if the original owner of a kihamba who had left the mangiate and
deserted the land were to return, he has the absolute right to reclaim his
kihamba from the Mangi. But native law permits compensation being
paid to any dispossessed “second owner” for improvements the latter has
effected on the land.30
Pressure on land in these areas and the influence of governmental policy

have given rise to certain rules concerning abandonment, which appears
to be of general application. The current attitude of the Court may be
illustrated by reference to the case of Iddi Omari v. Abdallah,31 where the
assessors testified that according to tribal customs and tradition of the
Wachagga, when a person occupies land and plants sisal trees of a
permanent nature on the shamba that shamba belongs to him, no matter
how long he stays away from it without cultivating it. According to these
assertions there is no room for the concept of abandonment of kihamba
land. George’s, C.J., replied that the respondent, who had been out of
possession of the land from 1949 to 1961, during which period it was
occupied by the appellant, had abandoned the land and had lost title
thereto, “for the policy of the government as shown by current legislation
is that title is dependent on proper use of the land.”
2 8
Cf. The Kenyan case of Ngutsu Mwajaira v. Omari Safari (1962) C.O.R. 1 (Kwale district),
where the Court of Review held that the owner of land can always claim it back no matter how long
he has been away. In this respect the custom of the tribe did not recognize loss of title by
abandonment.
2 9
(1953) Digest No. 18.
3 0
See also Akosi Lengaria v. Thomas (1953) Digest No. 17.
3 1
(1965) L.C.C.A. 83/1965.
Page 153 of 154
Omari’s case did not decide that land could pass from one person to
another by abandonment, for the concept does not connote a transfer of
land. No pronouncement was made as to what interest the appellants got
in the land. The Court merely dismissed the respondent’s action claiming
title to the land because it found that he and his predecessors in title had
abandoned it. Unlike the operation of prescription, which passes title,
abandonment destroys title and, therefore, revives the title of the grantor
who is in most cases the allocating authority, acting on behalf of the
community. The Local Court of Appeal has, in Rabau Lugunya v.
Busyanya,32 maintained this conceptual distinction between abandonment
and prescription with particular clarity. It held that abandonment of a plot
of land may revest in the headman the right to re-allocate it; and
secondly, a third party cannot acquire title to abandoned land by
occupying and cultivating it.33 However, in ninety percent of the cases the
action is between the former lawful landholder and a third party, usually a
squatter. In such cases when the Court finds the land has been
abandoned, it dismisses the claim of the owner for re-possession, without
finding that the defendant has acquired any interest in the property. The
defendant is, however, by virtue of the judgement, entitled to remain in
possessions of the land as against the ex-proprietor and any other
person,34 except the allocating authority against whom he has no rights.
He may be allowed compensation for improvements he effected on the
3 2
(1954) Digest No. 68.
3 3
Quaere whether the Court can find for the stranger on the basis of prescriptive rights; see
Ntandu Megwina v. Nkondeya (1954) Digest No. 258. It is submitted that one cannot acquire
prescriptive rights against the community, as such occupation by a member of the community is
permissive, not adverse.
3 4
In Asumani Kimanyo v. Okoyo (1965), L.C.C.A. 61/1963, Kimicha, J., in an appeal from the
Kahe Local Court, held that the law protects a trespasser of abandoned land against another
trespasser.
Page 154 of 154
land where the allocating authority has re-allocated the land to a third
party.
G. conclusion
The unsatisfactory state of traditional law in relating security of tenure to

land use necessitates a more precise machinery to realize this desirable
end. A suggestion has already been made35 for the extension of the
statutory principles to the traditional sector, at least during the transitional
period prior to the formation of Ujamaa villages.
3 5
pp. 187, et. Seq. See also pp. 363-4.

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Deemed right of occupancy - detailed notes – Dr.

2.2 THE DEEMED RIGHT OF OCCUPANCY

(a) Definition – S.2(1) Cap.113

Cases: 1. MTORO BIN MWAMBA v. AG. (1952) 2

2. MUHENA BIN SAID v. REGISTRAR OF

3. METHUSELAH PAUL NYAGASWA v.

4. MOHAMED NYAKIOZE v. SOFIA D/O

5. NAFCO v. MULBADAW VILLAGE

Statutes: S. 9 JALO, 1961.

Circulars: Govt. Civ. No. 12 of 1941

Articles: A. A. Oldaker “Tribal Customary Land Tenure

2.2.2 LIMITATION ON THE APPLICATION OF

2.2.3 ACQUISITION OF LAND RIGHTS AT CUSTOMARY

2.2.4 RECENT DEVELOPMENTS

6.1 ACQUISITION OF LAND AT CUSTOMARY LAW

(J & F. Part IV, Chpt. X-XV)

In the classic case of MTORO BIN MWAMBA V. A.G. (1952) 2TLR

There are three ways of acquiring ownership in Land: (1) by

Today matters are more sophisticated. Anthropological studies have

They introduce other novel modes of land acquisition such as (5)

i) there was no scarcity of land;

ii) the pattern of cultivation was shifting and was done

[An argument that could be fairly controverted see: Helge

i) the introduction of permanent crops which do not mature for

ii) The commercialization of agricultural production (coffee,

iii) The improvement of more durable buildings (non “mbavu za

iv) The increase of population in some areas led to land scarcity

The improvement thing to note from James and Fimbo’s discussion is

We shall consider each mode of acquisition briefly.

1. James, R.W., Land Tenure and Policy in Tanzania, pp.

2. James, R.W. & Fimbo, M.G., Customary Land Law of

4. Wright, I.M.: “The Meru Land Case” (1966) TNR 137.

1. The Land Ordinance, Cap. 113 S. 2, 3

2. Town and Country Planning Ord. Cap. 378.

3. Township Ord., Cap. 101

4. Minor Settlements Ord. Cap. 102

5. Land Acquisition Act, 1967 (No. 7 of 1967)

7. Forests Ord. Cap. 389 (1957)

8. Fauna Conservation Ord. Cap. 302 (1951)

9. The Local Government (Urban Authorities) Act, 1982,

1. Abdallah Chapila v. Mwinyigoha & Ors. (1965) LCCA

2. Mohamed Nyakioze v. Sofia d/o Musa (1971) C.A.

3. Peter Mashauri v. R. in J & F, p. 47.

4. James Bita v. Idd Kambi (1979) L.R.T. n. 9.

1. GENERAL STATUS OF ALIENATED LAND

The history of alienation of land by the government from its lawful

The history of the definition of the Right of Occupancy as provided

There has been extensive controversy concerning the exact nature

It appears that the rather vague definition of the African’s tenures

Its nature is a matter of conjecture for the decisions of

These decision are MUHENA BIN SAID v. REGISTRAR OF

6(1) The President may, where it appears to him to be

On this statutory duty to consult the 1953 Circular reiterated under

It must, however, be understood that this obligation to

fullest consideration by the Governor and only in

One cannot escape the conclusion that the Land

Policy in Tanganyika 1919-1932, LL.M dissertation.

Whenever land was alienated certain consequence followed, as