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Mwaiso land

Land law (St. Augustine University of Tanzania)

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The Granted Right of Occupancy is a formal way of land occupation and ownership in Tanzania

which is normally found under the reserved land and general land and is granted by the president

or an authorized officer, it is governed by the Land Act Cap 113 R.E 2019 specifically Part VI

and in concern of Limitation of Action is regulate by the Land Act and The Law of limitation Act

Cap 89 R.E 2019. Granted right of occupancy is not an absolute ownership of the land, but a

form of ownership which entitles the grantee to rights to occupy and use the land 1 in a limited

time of the maximum of 99 years. It is a usufructuary right giving the grantee the rights to enjoy

the fruits of the occupation2. The ultimate ownership is vested in the president as the paramount

landlord.

Customary Right of Occupancy means right of occupancy created by means of the issuing of a

certificate of customary right of occupancy under section 27 of The Village Land Act and

includes deemed right of occupancy3. Deemed Right of Occupancy is defined to mean the title of

Tanzania citizen of African descent or a community of Tanzania citizens of African descent using

or occupying land under and in accordance with customary law 4. Generally, the Customary Right

of Occupancy and Deemed Right of Occupancy are regulated by The Village Land Act Cap 114

R.E 2019. And in case of the limitation of action under the Customary Right of Occupancy and

Deemed Right of Occupancy is regulated by The Customary Law (Limitation of Proceedings)

Rules G.N No 311 of 1964.

Limitation of Action, is defined to mean the extinction of stale claims 5. Rights of action are

limited in point of time and are lost if not pursued within due time. The operative maxim at law

1 Mwaisondola, G. The Modern Law of Mortgages in Tanzania, PhD thesis, 2007 available at
http://etheses.bham.ac.uk/132
2 Mtoro bin Mwamba vs AG (1953) 20 EACA 108
3 The Village Land Act Cap 114
4 Section 2 of The Land Act Cap 113 R.E 2019
5 R.E. Megarry and H. W. R. Wade, The Law of Real Property. (1966) p. 996

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is that “interest republicae ut sit finis litium”. This maxim means that there should be an end of

law suit. The general rule on limitation of action is that “the long and undisturbed possession of

land has to be protected even if the initial entry was unlawful” in the case of JONES Vs.

CHAPMAN6 the court cemented on same rule based on limitation and prescription that long and

undisturbed possession of land has to be protected. Limitation of action in Tanzania is applied in

both the Granted Right of Occupancy and Customary Right of Occupancy. The Law of

Limitation Act Cap 89 R.E 2019 and the Land Act Cap 113 regulates Limitation of Action under

Granted Right of Occupancy and on the Customary Right of Occupancy is regulated by The

Customary Law (Limitation of Proceedings) Rules G.N 311 of 1964.

LIMITATION OF ACTION UNDER GRANTED RIGHT OF OCCUPANCY

It is the requirement of the law that one should not sleep over his rights, if you have a right, that

right might be pursued within time because every action which is brought after the expiry of the

period of limitation provided in the schedule must be dismissed whether the period of limitation

is set as a defence or not 7. In ALFONS MOHAMED CHILUMBA Vs. DAR ES SALAAM

SMALL COOPERATIVE INDUSTRIES SOCIETY8 the plaintiff sued the defendant for arrears

of salary, on appeal he averred that the trial court erred by not considering the acknowledgment

made by the employer of the defendant company, the court held that such an acknowledgment

was made after expiry of time limitation of action which is 6 years therefore the plaintiff cannot

rely on that defence the appeal dismissed.

The length of time for the interest over the land held under the Granted Right of Occupancy to

extinguish is twelve years as per (item 22) Part 1 of the schedule of The Law of Limitation Act 9.
6 (1849) 2Ch 802
7 Section 3(1) of The Law of Limitation Act Cap 89 R.E 2019
8 (1986) TLR 91
9 Cap 89. R.E 2019

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In the case of SALIM V. BOYD AND ANOTHER10 The applicant applied by originating notice

of motion for an order registering him as the proprietor of a plot of land on the ground that he

had been in possession of it for twenty years. The court held that the applicant must prove that he

has had exclusive uninterrupted possession of the land for 12 years and without fraud.

RUNNING OF TIME UNDER GRANTED RIGHT OF OCCUPANCY

Running of time is when the adverse possession by the stranger start to count towards the

extinguishment of the interest of the owner subject to law of limitations. The issue of running of

time under the granted right of occupancy is to be answered in the following three questions;

i. When does time begin to run?

ii. What may postpone that date?

iii. What may make time run afresh?

In response to the first question of when time begin to run, section 4 of The Law of Limitation

Act11 provides that the period of limitation shall commence from the date on which the right of

action for such proceeding accrues. In the case of ISACK SINA AND 8 OTHERS Vs. AG AND

3 OTHERS12 the plaintiff instituted the suit after the lapse of fourteen (14) years against the

defendant claiming that the deed of the defendant encroached his land. The deed was of 2002 and

the case was instituted in 2016. The court held the right of action is not about the knowledge of

adverse possession but it is from when the owner is entitled to institute a suit against stranger.

For time to begin to run there shall be two elements in place;

10 [1971] 1 EA 550
11 Cap 89 R.E 2019
12 (2016) H.C Land case No. 25 (unreported)

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a) There must be a discontinuation or dispossession by the land owner; discontinuation is

when the owner has stopped using the land and dispossession is when the land owner is

evicted from using the land. That discontinuation and dispossession must subsist for the

period set by law for the owner interest over the land to be extinguished. Section 9(2) of

Law of Limitation Act13 stipulate that where the person has been dispossessed or

discontinued his possession over the land, the right of action shall be deemed to have

accrued on the date of the possession or discontinuance.

b) Adverse possession by the stranger; adverse is synonymous to “squatters right” is a legal

principle under which a person who does not have legal title to a piece of property (land)

may acquire legal ownership based on continuous possession or occupation of property

without the permission of its legal owner with animus posidendi. In the case of Corea vs

Appuhamy14 adverse possession was referred as the possession which is inconsistent with

the title of the true owner. For the time to begin to run there shall be the stranger who is

in adverse possession over the land of the owner in whose favor the period of limitation

can run15, such possession shall be in 12 consecutive years 16. In the case of MWALIMU

OMARI AND ANOTHER Vs. OMARI BILALI17 where the court noted the elements of

adverse possession that there shall be a possession which is adverse as against the owner

(object) who is suffering the possession by stranger.

The possession by the person is not adverse if they are in possession as a tenant or licensee of the

legal owner under owner’s consent18, this is to say any person who is lawfully lease or licensed to

13 Cap 89 R.E 2019

14 (1912) AC 230
15 Section 33(1) of The Law of Limitation Act Cap 89 R.E 2019
16 Section 33(2) of The Law of Limitation Act Cap 89 R.E 2019
17 (1999) TLR 432
18 Hughes Vs. Griffin (1969)1 W.L.R 23

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stay in possession of the land or property of the owner subject to mutual agreement, such

possession is not adverse unless and until the when the time agreed to pay for a lease or license

expires and the land owner does not claim the vacant of such property (land).

Future interest over the land cannot amount to adverse possession; future interest is when the

land owner has allowed somebody else to stay over the land. The right of action shall be deemed

to have accrued on the date on which the interest fell into possession by the determination of the

proceeding interest19

In response to the second question of what may postpone that date, there are circumstances

where the owner has acquired right to sue but cannot go ahead and institute a suit as against the

adverse possessor until the time limitation expires such circumstance may hinder time to run

until the owner is capable of taking an action. These circumstances include;

a. Legal disability; where the land owner was imprisoned for a long period of time and

adverse possessor invaded his land while he was in jail until the time limitation accrue.

For that time, the time will start running from the date the owner is set free or dies 20.

However, in most of times imprisonment cannot amount to sympathy.

b. Physical disability; where the land owner encountered physical disability which subsists

for a long time exceeding the lime limitation such as coma, mental illness. The time

during which such person is under disability shall be excluded21. In the case of

WANGWE MUHERE V. MOGAYA CHACHA22 the respondent was under a disability

he was admitted in hospital and because at that time not only was he unable physically to

move from one place to another but he was also unable to work in order to raise the
19 Section 10(1) of The Law of Limitation Act Cap 89 R.E 2019
20 Section 15 of The Law of Limitation Act Cap 89 R.E 2019
21 Section 16 of The Law of Limitation Act Cap 89 R.E 2019
22 (1972) H.C.D n 137.

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necessary court fees for filing the action hence the time to file a suit for tort passed. The

court considered the time when the respondent was under disability.

c. Death of the land owner; the right of action for recovery of land where owner deceased.

The time limitation of twelve years will run from death of the deceased irrespective of

when letters of administration granted23.

On the last question on what may make time to run afresh. There are two circumstances where

the time will start to run afresh,

a. When there is a signed acknowledgment in writing of the plaintiff’s title

b. Where there is a part payment of principal or interest.

If the adverse possessor acknowledges in writing before the lapse of 12 years that he is not the

owner of that piece of land held under Granted Right of Occupancy, time will start to run afresh

from that date of acknowledgment. On the other hand, where the adverse possessor stayed in the

premise without the consent of the owner due to failure to pay principle or interest there to, if he

makes a partial payment before the lapse of time limitation, the time will start to run afresh24.

The acknowledgment or payment must be signed by the person in whose favor time is running or

by his agent to person whose title is being barred or to his agent 25. The acknowledgment must be

of existing liability and not merely of facts which might give rise to liability 26. The

acknowledgment must be made before the expiry of limitation period27

EFFECTS OF LAPSE OF TIME

23 Yusuf Same and Another Vs. Hadija yusuf (1996) TLR 347
24 Section 27(3) and 28(4) of The Law of Limitation Act Cap 89 R.E
25 Section 28 and 29 of The Law of Limitation Act Cap 89 R.E
26 Good Vs. Parry (1963)2 QB 403
27 Section 28(4) of The Law of Limitation Act Cap 89 R.E 2019 and the case of Alfons Mohamed Chilumba Vs. Dar es
Salaam Small Cooperative Industries Society (1986) TLR 91

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Under the Granted Right of Occupancy, the lapse of time limitation will result to the following in

favor of adverse possessor and against land owner.

a. The interest of the land owner over the land will be extinguished; where the premise in

adverse possession is not a public land and the minister does not extend the time

limitation for the certain premise, upon the expiration of the period of the limitation

prescribed in the item 22 of the schedule of Cap 89 for a suit for possession of a land

under granted right of occupancy the right of land owner to that premise shall be

extinguished28.

b. The adverse possessor will be entitled to register the to the registrar of title as the lawful

owner of title as a result of becoming the new owner 29 in the case of SALIM Vs. BOYD30

the applicant must prove that he had exclusive uninterrupted possession of the land for 12

years and without fraud, to that effect he is entitled to register interest over that land.

LIMITATION OF ACTION OVER THE LAND HELD UNDER CUSTOMARY RIGH OF

OCCUPANCY.

The law of limitation of action before 1963 was not recognize among the Tanganyika

communities, until the year of 1964 when The Customary Law (Limitation of Proceedings)

Rules of 1963, GN No. 311 of 1964 is where the limitation of action started to be applied in

Tanzania. However, it is important to understand that since by then the customary law of

Tanganyika did not recognize the application of the limitation of action over the land dispute. It

can be witnessed in the following bundle of cases before 1963.

28 Section 39 of The Law of Limitation Act Cap 89 R.E 2019

29 Section 37 of The Land Registration Act Cap 334 R.E 2019
30 (1971)1 EA 550

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PHILIP MTUSHA Vs. STEPHEN JOHN 31, the chagga appeal court followed by the district

commissioner held that “…. under the customary law of the Wachaga, there is no limit of time

after which a Kihamba cha Asili cannot be claimed…….”

KATASO KABONDOLA Vs. MULONGO32 one of the grounds upon which leave to appeal to

the court was granted by the provincial commissioner was in effect, due to a doubt in his mind as

to whether any law of limitation applies to this case. The court view was that “……. The court

has considered that at this point and is satisfied that no such conception is known to Kerewe

customary law, despite attempt which have been made by district commissioners to introduce the

period of limitation after which claims to land would be barred….”

However, some cases had a partial recognition of limitation of action under customary tenure.

STEPHEN S/O SOKONI VS MILIONI SOKONI33

The respondent proved that he was given a shamba by his father from the shamba of his mother

since 1929 undeveloped and he developed it. The appellant rejected the fact that he was given by

their common father while in possession by his mother. The court rejected the allegation by the

appellant and held that. “…. the respondent has occupied the shamba for such a long time that it

would be unreasonable and unfair to allow the appellant to disturb him at this time. If the

appellant had really required the shamba he could not keep quiet for more than 30 years”.

LIMITATION OF ACTION IN CUSTOMARY TENURE AFTER ENACTMENT OF GN 311

OF 1963.

31 L.C.C.A. No. 59/1962; (1963) Digest, 229

32 Appeal No. 49/1952; (1953) Digest, 7 [Wakerewe__Ukerewe District, Mwanza Region].
33 (1967) C.A. No. D/183/1963

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The enactment was promulgated on 29th May, 1964 by the existed chief justice under powers

contained in section 65 of the Magistrate Court Act 1963 and were came into force on 1 st July,

1964. the existence of The Customary Law (Limitation of Proceedings) Rules was not effectively

applied until the enactment of The Law of Limitation Act Cap 89 in 1971 in which section 50 of

same Act stipulates that the act does not apply to the land held under customary right of

occupancy and instead empowers the Chief Justice to make rules concerning limitation of action

over land held under customary tenure. The Chief Justice realized the existence of these rules

since 1963 and adopted them.

RUNNING OF TIME UNDER THE CUSTOMARY RIGHT OF OCCUPANCY

The GN No. 311 of 1963 provides the same as in Granted Right of Occupancy as far as the

running of time is concerned, section 2 of The Customary Law (Limitation of Proceeding) Rules

is pari materia to section 3(1) of The Law of Limitation Act which provides every proceeding

instituted after the period of limitation prescribed shall be dismissed whether or not limitation

has been set up as a defence.

The time limitation for the interest over the land held under the customary right of occupancy to

extinguish is subject to section 2 read together with item 6 of the schedule of The Customary

Law (Limitation of Proceeding) Rules34 which stipulates that, no proceeding to recover

possession of land or money secured on mortgage of land can be instituted after the expiration of

twelve years. Such period being deemed to commence on the day when the right to bring such

proceedings first accrued35. Also, in the case of MUKYEMALILA AND THADEO Vs.

LUILANGA36 the court ruled the same.

34 GN No. 311 of 1963

35 Section 2 of The Customary Law (Limitation of Proceedings) Rules of 1963, GN No. 311 of 1964
36 (1972) H.C.D. n. 4.

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Under the customary tenure unlike in granted right of occupancy the court has discretion to

admit any proceeding which was instituted after the lapse of time limitation where it is satisfied

that the person has adduced sufficient cause hindering him not to institute proceeding earlier 37.

Also the court in the case of held that the claimant had a duty to show why he did not institute

the proceedings earlier before time limitation accrues so has he can enjoy court’s discretional

powers ALFONS MOHAMED CHILUMBA Vs. DAR ES SALAAM SMALL COOPERATIVE

INDUSTRIES SOCIETY38.

CONCLUSION,

Both the rules and The Law of Limitation Act cannot be applied to bar an action brought by or

on behalf of the republic or the government. The provision has extended the general provision

contained in section 10 of the Indian Act (Application) Ordinance that no suit or other

proceeding by or on behalf of the government for the recovery of land shall be dismissed on

grounds of limitation, nor shall any person become entitled to any estate or interest in any public

land by adverse possession or prescription 39. However, president may grant that interest to an

individual who by virtual of that grant may claim limitation of time over a public land.

BIBLIOGRAPHY

BOOKS

James R.W., Fimbo G.M. (1973) Customary Land Law of Tanzania. A Source Book. East African

Literature Bureau. Nairobi

37 Section 3 of The Customary Law (Limitation of Proceedings) Rules of 1963, GN No. 311 of 1964.
38 (1986) TLR 91
39 James R.W. Land Tenure and Policy in Tanzania, East African Literature Bureau. Nairobi. p. 275

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James R.W. Land Tenure and Policy in Tanzania, East African Literature Bureau. Nairobi.

R.E. Megarry and H. W. R. Wade, The Law of Real Property. (1966)

Mwaisondola, G. The Modern Law of Mortgages in Tanzania, PhD thesis, 2007 available at

http://etheses.bham.ac.uk/132

STAUTES

The Customary Law (Limitation of Proceedings) Rules of 1963, GN No. 311 of 1964

The Indian Act (Application) Ordinance

The Land Act Cap 113 R.E 2019

The Land Registration Act Cap 334 R.E 2019

The Village Land Act Cap 114

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