LANDLAW 2015

1. Meaning of land at common law

At English common law, the term land includes the physical clods of earth
which make up the surface layer of land, mines, and minerals beneath the surface,
and buildings, or parts of buildings erected on the surface and “corporeal
hereditaments”.
It includes also many kind of intangible rights or incorporeal hereditaments such as
rights of way over somebody else’s land. These intangible rights are regarded as
integral parts of the land in a way that any future conveyance of the land will
transfer the land, rights and benefits attached to it.
Hereditaments signify a right which is heritable that is capable of passing by
way of descent to heirs, see Lloyd v Jones(1848) 6 CB 81 at 90. Corporeal
consist of such as affect the senses, such as may be seen and handled by
body, it consist substance and physical objects, while incorporeal are the
object of sensation, can neither be seen nor handled, are creatures of the mind and
exist only in contemplation,
The extended significance of the term land is sometimes expressed by
reference to two Latin maxims.
First, cuius est solum eius est usque ad coelum et ad inferos meaning he
who owns the land owns everything extending to the heaven and to the
depths of the earth. In principle therefore, the owner of the land owns everything.
However statutory provisions qualify the position. As a result the landowner has no
right to coal and oil or treasure-trove discovered in his land. The ownership of
these things is vested in the state.
Another important principle is summed up in a maxim quicquid plantatur
solo solo cedit meaning whatever is attached to the ground becomes a part of it.
According to this, a building constructed on the soil and things naturally growing
in the land such as trees, become part of the land.
The effect of the principle quicquid plantatur solo solo ceditis also to
include objects attached to the building, which would otherwise be personal
property and removable to become annexed to the realty and hence regarded as
part of the freehold. These objects are commonly referred to as “fixtures”. Fixture
is therefore the name used to refer to anything which has become so attached to
land as to form part of the land.
Thus in a Coal Industry Nationalization Act, 1946, Petroleum (Product) Act, 1954.
Also see Gray & Symes, p. 51.
Treasure stove applies to gold and silver discovered in the land. See Attorney
General of the Duchy of Lancaster v G. E. Overton (Farms) Ltd[1980] 3 WLR
869;
See Bernstein v Sky views & General Ltd[1978] QB 479;Grigsby v Melville[1974]
1 WLR 80.
It is important to note that, in ordinary language one tends to think of a
fixture as being something fixed to a building, but a building itself can be a fixture.
In Boswell v Crucible Steel Company[1925] 1 KB 119 at 123, the issue was
whether plate glass windows which formed part of the wall of a warehouse
were landlord’s fixtures within the meaning of a repairing covenant. Atkin LJ
held “... I am quite satisfied that they are not landlord fixtures, and for the simple

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 reason that they are not fixtures at all in the sense in which building is erected on
land and objects are attached to the building, the word land includes the soil,
the building and the objects affixed to it, and therefore the owner of the land
becomes the owner of the building and things affixed thereto.
It was stated in Elliot v Bishop that “the old rule laid down in the old
books is that, if the tenant or the occupier of a house or land annex
anything to the freehold, neither he nor his representatives can afterwards take
it away, the maxim being quicquid plantatur solo solo cedit”. Since the law treats
land and chattels differently, and since a chattel may by being affixed to land,
become part of the land, it is necessary to analyses a test which will determine
whether or not such a change has taken place.
This is because when land is mortgaged, even though it is not mentioned in
the mortgage deed, the mortgage passes rights to the fixtures to the mortgagee but
not rights to chattels. As pointed out by Blackburn J. in Holland v Hodgson for a
chattel to become a fixture, two factors have to be considered: that term is
generally understood. A fixture where used in connection with a house,
means something which has been affixed to the freehold as accessory to the
house. It does not include things which were made part of the house itself in the
course of its construction”. But Goddard CJ in Billing v Pill[1954] 1 QB, 70 at 75,
[1953] 2 All ER 1061 at 1063 stated “What is a fixture? The commonest fixture is
a house which is built into the land, so that in law it is regarded as part of the land.
The house and the land are one thing”. The building erected on the land becomes
part of the land. See also M & B pp. 90-95; Elitestone Ltd v Morris[1997] 1 WLR
687, [1997] 2 All ER 513 for a similar discussion.
This is the old rule which is now subject to modification.
For instance material such as bricks, timbers frames wall, the chipboard ceilings
etc, which are chattels when brought on the building site what, makes them ceases
to be chattels? M & B p. 90.
See Vaudeville Electric Cinema Ltd v Muriset[1923] 2 Ch. 74.
M & B p. 90, also see Megarry, p. 15. See s. 62 of the Law of Property Act 1925;
HE Dibble Ltd v Moore [1970] 2 QB 181, [1969] 3 All ER 1465.
[1872] LR 7 CP 328, see Hellawell v Eastwood [1851] 6 Ex. 295 at 312.
Firstly, the degree of annexation, and
Secondly, the object of annexation
As to the degree of annexation, the general rule is that a chattel is not a fixture
unless it is actually fastened to or connected with the land or building.
A chattel will remain a chattel if it could be removed without any damage or
material injury to the structure to which it is attached.
For instance, while things such as a machine bolted to the floor may be
regarded as part and parcel of the land for the reason that its removal will damage
the structure in which it is fastened; a heavy machine resting on its own weight
may remain a chattel. With regard to the object of annexation, the issue is whether
the object is to improve the freehold to which the annexation is made or whether it
is the more complete and better enjoyment of the chattel as a chattel.
If it is proved the object is to enjoy the chattel as a chattel, then the owner or his
heir will be entitled to remove it.
A good example is given by Blackburn J in the Holland v Hodgsonstating that
blocks of stone placed one on top
The mere laying of an article in the ground however heavy, upon the land does not
prima facie make it a fixture, even though it subsequently sinks into the ground,
see M & B p. 143.

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 Leigh v Taylor[1902] AC 157 at 160.
Reynolds v Ashby & Sons[1904] AC 466.
Hulme v Brigham[1943] KB 152, [1943] 1 All ER 204. In HE Dibble Ltd v
Moore[1970] 2 QB 181, greenhouses resting on their own weight on concrete
dollies were held to be removable chattels. Also see
Botham v TSB bank plc(1996) 73 P & CR D1 in which the Court of Appeal held
that bathroom fittings, and fitted kitchen units were fixtures but not fitted
carpets, curtains, blinds, gas fires, oven, freezer and washing machine.
Also see Hellawell v East wood[1851] Exch. 295 at 312
Where it was stated the issue is, was the intention to effect a permanent
improvement of land or building as such, or was it merely to effect a temporary
improvement or to enjoy the chattel as chattel?
In re De Falbe Ltd[1901] 1 Ch 523 at 541. In re De Falbe Ltd involved
tapestries affixed by a tenant for life to walls of a house for the purpose of
ornament and the better enjoyment of them as chattels. The court held that if
proved they were so fixed to enhance their enjoyment as chattels, no amount of
annexation would defeat the tenant’s rights to remove them. of another without
any mortar or cement for the purpose of forming a dry stone wall would
become part of the land, though the same stones, if deposited in a builder’s yard
and for convenience sake stacked on top of each other in the form of a
wall, would remain chattels. Even in its early development, it was accepted that
as a general rule there were categories of fixtures which a person who affixed it or
his successor in title could remove whatever the degree of annexation. For instance
trade fixtures attached in the land by the tenant for the purpose of carrying on his
particular trade ,or ornamental fixtures attached in the realty for the sake of
ornament or convenience could be removed. In 1901, Vaughan
Williams L. J. stated in re De Falbe case that amongst the exceptions to the rigid
rule of quicquid plantatur solo solo cedit were two, one in respect of trade
fixtures, the other in respect of ornamental objects which have been annexed in
some way to a freehold. In a later stage, the right to remove agricultural fixtures
was provided for by the Agricultural Holdings Act, 1948. Fixtures impact on a
mortgage transaction as they pass with the land to the mortgagee even when not
mentioned in the mortgage deed. The mortgagor in possession is not entitled to
remove tenant’s fixtures, whether annexed before or after the mortgage
transaction.
However, where fixtures have been annexed to land by a third party under an
agreement between him and the mortgagor which permits him to remove
them in certain circumstances, his rights of removal can not in general be
defeated by the mortgagee. LR 7 CP 328 at 335.
See Poole’s Case (1703) 1 Salk 368; Elliot v Bishop (1854) 10 Exch 496; Smith v
City Petroleum Co[1940] 1 All ER 260.
Vaudeville Electric Cinema Ltd v Muriset[1923] 2 Ch 74.
Longbottom v Berry(1869) LR 5 QB 123.
2. The common law doctrine of tenure and estate and its
application in the country
In practice land is normally described as owned by its various proprietors,
English land law still retains its original basis in Crown ownership.
It is expressed in a feudal law summed up in a maxim nulle terre sans seigneur
meaning no land without a lord.
A small part being in the Crown’s own occupation, the rest is occupied by tenants
holding either directly or indirectly from the Crown.

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 The ownership of land was based on a complex feudal structure which was
imposed after the Norman Conquest. The King regarded the whole of England as
his by conquest. In rewarding his followers and the English people who submitted
to him, he granted them certain land to be held of him as overlord.
These lands were granted not by out-and out transfer, but were to be held
from the Crown upon certain conditions. Every grantee Might in turn grant
land to another person to hold of them in return for services, and that other might
do the same.
Gough v Wood and Co [1894] 1 QB 713; see also C & B p. 147. See Att.-Gen. of
Ontario v Mercer (1883) 8 App. Cas. 767 at 772.
Therefore, the feudal system had a pyramidal structure from the top
downwards with the King at the top and people who actually occupying the land at
the base.
In the middle of the structure were people who both rendered and received
services, much in the same Way as a modern leasehold tenant who has sublet
the property.
The control of the land followed the same hierarchy with the King being the
lord paramount looking only to those who held directly from him called tenants
in chief. The tenants in chief in return controlled their immediate tenants, and so on
down the ladder if there were further steps in the scale to the actual occupier of the
land called “tenants in demesne”.
Even in its ancient forms, the feudal services which would culminate in the
grant of land became standardised and broken up in sets. Thus there was one set
of services which included the provision of armed horsemen for battle
which became known as knight’s services, and there was another set which
included the performance of some honorable service for the King in person which
was known as grand sergeanty. Each of these sets of services was known as tenure,
for it showed upon what terms the land was held.
The word tenure therefore signifies a right and mode of holding land. Land
tenure could be granted for different periods of time. It could be granted for life,
that is, for as long as the tenant lived, in tail, that is, for as long as the tenant or any
of his lineal descendants lived, or in fee simple that is for as long as the tenant or
any of his.
Those who stood between the Kings (lord paramount) and actual occupants
(tenants in demesne) were called mesne lords, mesne meaning intermediate. M &
W p. 13.heirs whether descendants or not were alive.
Each of these interests was known as an estate indicating a duration in which the
interest in land was held. Since the land was vested in the Crown, the issue was
what then did the tenant own?
The answer is provided by Prof. F. H. Lawson stating,
“The solution adopted by English law was to create an abstract entity called the
estate in the land and to interpose it between the tenant and the land. Since the
estate was an abstract entity imagined to serve certain purposes, it could be made
to conform to a specification, and the essential parts of the specification were that
the estate should represent the temporal aspect of the land…”
The idea of an estate was to define the rights and interest accorded by
the law to the tenant. In the Walsingham case the court clarified the distinction
between the land and the estate. It was held:
“…the land itself is one thing and the estate in the land is another thing, for an
estate in the land is a time in the land, or land for a time, and there are diversities of
estates which are no more than diversities of time…”.

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 With the doctrine of estates, the law of property ceased to be earth bound.
What the tenant or proprietor of the land owns is not strictly the land itself, but
rather an estate or quoted in interest in the land. The interest owned confers certain
powers of management and disposition of the land according to the nature of the
estate .See also Walsingham’s Case 75 ER at 816f.
Lawson, F. H. Introduction to the Law of Property. Oxford: Clarendon Press, 1958.
pp. 66-67,
It is an elementary principle inherent in the notion of property law that no man
can grant another any greater estate than that which he himself owns.
For instance, the owner of the entailed estate cannot give an estate in fee simple, he
can only grant what he has and that is the entailed estate, or something less than he
has. What these terms, that is tenure and estate, did was to clarify the ownership of
land in the manner that the tenure answers the question upon what terms the land is
held while the estate answers the question for how long.
The doctrine of tenure and estates is relevant in Tanzania. We have seen in part
2 above that all land in Tanzania is public land vested in the President as trustee on
behalf of the citizens.
The President is the superior landlord. He controls the whole land and he is the
only person who actually owns the land. The citizens occupying the land are doing
so, which is a duration of time upon which an individual can occupy and use the
land. s. 4 (5) of the Land Act, 1999 provides that all grants of the right of
occupancy shall be made in the name of the President.
Both land tenure and estate are creatures of legislation. They are provided for
under the Land Act, 1999 and the Village Land Act, 1999. The common tenure is
the right of occupancy which is the right to occupy and use public land. As
observed, the right may be a granted right of occupancy or a customary (deemed)
right of occupancy. A granted right, the grantee may be entitled to a renewal.
However, the granted right of occupancy is liable to revocation for good
cause or in the public interest, and compulsory acquisition by the state for
public purposes.
On the other hand, a customary right of occupancy is the title of a Tanzanian
citizen or a citizen of African descent using or occupying land under customary
law.
A customary right of occupancy can also be granted to an individual or association
by a village land council over a village land.
One of the distinct features of a customary right of occupancy is the fact that it
can be granted for indefinite period.
The duration of time upon which an individual occupies the land is a property. In
fact, the estate is what a person deals with in the land market because it is his.
Section 4 (3) of the Land Act, 1999 provides to the effect that every lawful
occupation of the land under s. 22 (1) (a) of the Land Act, 1999.
The granted right of occupancy may be granted for the period up to but not
exceeding 99 years,
(1) (e), and s. 32 (1) and (2) of the Land Act, 1999.
s. 32 (3) of the Land Act, 1999.
s. 22 (1) (j) and s. 49 of the Land Act, 1999.
s. 22 (1) (k) of the Land Act, 1999.
s. 2 of the Land Act, 1999.
See s. 18 (1) (a) and (b) of the Village Land Act, 1999.
s. 18 (1) (c) and s. 27 of the Village Land Act, 1999. Right of occupancy shall be
deemed to be property. The tenure and estate are indicated in the certificate of

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 occupancy issued to a holder of a right of occupancy.
3. Rights in land under customary law
Under customary law, the concept of land is usually associated with
the literal understanding of land, that is, land as the physical surface of the
earth. In Tanzania, probably the best way of understanding rights and
interests attached to land under customary law is by investigating two
issues.
The first is the mode of land ownership under customary law. It answers
the question, who can convey the land and on what terms? It is in fact an
investigation of land tenure under customary law touching issues such as “from
whom does an individual get land?” “On what terms?” “What can one do? Or not
do with the land?”
The second issue is an investigation of what the term “land” includes or
excludes. In other words, one attempts to investigate whether the common law
maxim of quicquid plantantur solo solo ceditis a rule of customary law. It impacts
on the extent of the bundle of rights conveyed as the land.
4. Forms of ownership of land in customary law
Two modes of ownership are possible under customary law, communal
and individual modes. From the policy level, communal ownership was favored at
the expense of the individual form as the communal mode was seen to be capable
to facilitate state control
For an example of the Certificate of Occupancy of land matters particularly land
disposition and speculation, the control of land fragmentation and
accumulation and other forms of anti-social behavior with land.
The presumption was that land is owned by the community never by an individual
and that an individual only has a security of tenure while using the land.
The favoring of communal ownership adopted a long established belief that
the traditional African system of land tenure is communally based. The judiciary
in several cases endorsed this view. In Muhena bin Said v The Registrar of Titles
and Another, A case involving land in Mwanza occupied by an Arab
claiming a fee simple title under Mohammedan customary law, Graham Paul
C. J. (Tanganyika) after rejecting the application of Mohammedan law stated:
“ … The only material customary law affecting this land or rights to or over the
land clearly was that of the aboriginal tribe and I am certainly not persuaded that
this custom of the aboriginal tribe had any such conception as the ownership of
land by an individual in fee simple freehold. Indeed I am satisfied that such a
conception was entirely unknown to the aboriginal tribe”.
In a paper titled %national Property presented by J. K. Nyerere then arguing
against the suggestion to introduce the freehold he stated “Once you give land to a
person to use as he would use his own house, then you can not prevent him from
using it as he likes… If people are given land to use as their property, then they
have the right to sell it. It will not be difficult to predict who, in fifty years time,
will be the landlords and who the tenants. In a country such as this, where,
generally speaking, the African are poor and foreigners are rich, it is
quite possible that, within eighty or a hundred years, if the poor African
were allowed to sell his land, all the land in Tanganyika would be owned by the
wealthy immigrants, and the local people would be tenants”. Post-independent
governments adopted this view. See Nyerere, J. K. Freedom and Unity/Uhuru
na Umaja.p. 55.
A general description of customary law stating that, the land in question was
situated in the territory of the Sukuma tribe within few miles of the headquarters

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 of the then Chief of the tribe. He stated that the Arab occupants did settle
peacefully in the land and were given the land by the chief or his representatives.
The grantor could only give the grantee tenure recognized by the customary law of
the tribe.
He went on to state that:
“I do not propose to speculate as to what is the land tenure of the Sukuma tribe,
but I am satisfied that the customary law of the tribe, like most of the
African tribes in the interior of the continent, had no conception of freehold
tenure such as is known to English law or analogous individual ownership
known to Muslim law”.
Similar views of the nature of customary tenure in Tanzania were echoed by Sir
Newman
Worley V.P. in Mtoro bin Mwamba v The Attorney General where he stated
that, a title of the native holding land was that of a usufructuary interest allowing
the holder to enjoy the land while in occupation. The court referred to the Privy
Council decision in the case of Amodu Tijani v The Secretary, Southern
%Nigeria case from Southern Nigeria in which the customary land law practice in
former English colonies were discussed. It was stated that “As a rule, in various
systems of native jurisprudence throughout the Empire [i.e. British Empire], there
is no such division between property and possession as English lawyers are
familiar with. A very usual form of native title is that of usufructuary right, which
is a mere qualification of or a burden on the radical or final title of the Sovereign
where that exists”.
Then, his lordship adopted Rayner C. J’s Report on Land Tenure in West Africa
emphasizing the dominance of the communal mode of land ownership in the
traditional African context. The report went on to state: “Land belongs to the
community, the village or the family, never to the individual. All the
members of the community, village or family have an equal right to the
land, but in every case the chief or Headman of the community or village,
or head of the family, has charge of the land, and in loose mode of speech is
sometimes called the owner. He is t some extent in the position of a trustee, and as
such holds the land for the use of the community or family. He has control of it,
and any member who wants a piece of it to cultivate or build a house upon, goes to
him for it. But the land so given still remains the property of the community
or family”.
Indeed, communal ownership is one form of ownership, but variation exists and
changes are taking place. Individual ownership of land also exists. One way in
which an or allocation from the village council. Normally once someone is
allocated land either by the family or clan or village, it becomes difficult to
dispossess that individual.
The title becomes like an absolute title capable of excluding others from an active
interference with the peaceful enjoyment of the land rights. The estate may be
for a particular period of time or for an indefinite period.
Usually the landholder is capable of passing down the land to his heirs
who may do the same. He may lease or permit another person to use the land with
or without rewards. He may temporarily transfer the ownership of the land to a
third party as a fulfillment of a term of a contract. He may distribute the land and
transfer just a portion of the land or transfer crops or trees to a third party as
part performance of contractual obligations.
The landholder may pledge or mortgage his land to secure a loan to a third party.
So long as the transactions in question do not result in an absolute alienation of the

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 land from the family or clan, the landholder may deal with the land as he pleases.
Other ways in which an individual can acquire land under customary law
includes clearing virgin forests, purchasing, and gift, planting permanent crops or
effecting permanent improvements.
In Amani Rajabu %jumla v Thomas Amri[1990] TLR 58 (HC), it was held that
the village government have no power to take away land from one person and give
it to another.
See s. 27 of the Village Land Act, 1999.
See Hussein Jendasham v Tobias Kazinja s/o Kabunda, App. to Governor No.
2/1948 reported in J & F p. 406.
Anyone who owns land can pledge it, however in some case the consent of
the family or clan is necessary, see J & F p. 405. If consent was not obtained,
any member of the family or clan can redeem the land by repaying the debt, see
Henrico s/o Welengalle v Felician s/o Kiraama (1968) H.C.D 347 reported in J &
F pp. 411-413. In customary pledge and mortgage, it is not necessary that the
pledgee or mortgagee should take possession of the shamba. See Emmanuel
Paulo v Daudi Tibendelana(1968) H.C.D 169.
However, the landholder holding family or clan land may not readily sell his
land to a stranger without the consent of the family or clan.
This is because by a sale of the land, it is alienated completely from the family or
clan. In the event that land is sold without the said consent, any member of the
family or clan can redeem the land after repaying the purchase price.
Indeed the sale is not an outright sale in the first place, but one which is
reversible as it allows the possibility for the land to revert to the family or
clan. The principle underlying the law is the protection of the family or clan as a
unity.
The introduction of a limitation statute and the idea of long possession of land as a
source of title in the customary domain prevent indefinite claims to land.
A suit to recover the land has to be instituted within twelve years otherwise
the action is time barred. In Jibu Clan land means a land which has been inherited
successfully without the interruption from the great grandfather or from a
grandfather by members of the same clan. See Jibu Sakilu v Petro Miumbi[1993]
TLR 75 (HC). Also see J & F p. 427. The definition of family land may follow
similar pattern.
In Leonance Mutalindwa v Mariadina Edward[1986] TLR 120, Katiti J. at
124 observed that “ In the perspective of things, it seems to me, that under
customary law, obtaining in the area the case hails from,
the parlance clan shamba, should mean, that title in clan land in that
Customary law sense is generally vested in the clan. Since such title is so
vested, the said clan may sanction individual clan mates to dispose of the clan land,
or even for good cause, refuse to so sanction.” Also in Reromino Athanase v
Mukamulani Benedicto [1983] TLR 370, the court overruled a sale in which no
near relative was informed.
See Kamugisha Mazobe v Simon Gabagambi, Digest No. 85 in J & F p. 429;
Maria Antonia Muhumuza
Mugoye(1954) 16/54 in J & F pp. 429-430.
See Aloyse Ishengeli v Lutainurwa, Digest 84 in J & F p. 446, an unsuccessful
action to redeem shamba sold to another clan member.
See Kato, L. L. “Has Customary Law In English Speaking Africa Recognized
Long Possession of Land as a Basis of Titles”. East African Law Journal. 1965, 1
(4), 243-259. In Baya Mwaro v Mwangome(1957)

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 C. O. R. 6 in J & F p. 539 an action to recover the land instituted after thirteen
years was held to be bad in law. In Stephen s/o Sokoni v Milioni Sokoni(1967)
No. D/183/1963 in J & F p. 539 it was held that the respondent had 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. It went on to state if the appellant had really
required the shamba he could not have kept quiet for more than thirty years.. Also
see Bi. Juliana Rwakatare v Kaganda(1965)
L. C. C. A. 43/1963, Abed Shekulwavu v Salimu Juma(1967) H. C. D 88.
See Customary Law (Limitation of Proceedings) Rules, 1963, GN No. 311 of
1964. Section 2 of the Rules states “No proceedings for the enforcement of a claim
under customary law of a nature shown in the second column of the Schedule
hereto shall be instituted after the expiration of the period shown in the third
column of that Schedule…”, then Item No. 6 provides “Proceedings to recover
possession of land or money secured on mortgage of land - 12 years”. The Law of
Limitation Act, 1971, Act No 10 of 1971 does not apply to land disputes under
customary law.
Sakilu v Petro Miumbi,the High Court relying on rule 2 of the Customary Law
(Limitation of Proceedings) Rules stated that an action to redeem the land couldn’t
be instituted after the expiry of twelve years. The twelve years time limit does
apply to the redemption of pledged or mortgaged land under customary law.
5. Transferable interest in land under customary law
In any dealing with land, the mortgagee or transferee of land will want to
know what is being transferred to him. This is the position under customary law as
well. The transferee of the land rights under customary law may want to know the
bundle of land rights he is receiving probably by looking at the customary society
understanding of the term land broadly. Many societies would regard things
found in the land especially permanent crops such as fruits trees and
permanent buildings as part of the land.
The common term shamba refers to the land in its entirety.
In dealing with the land therefore, the land value takes into account the
size of the land in terms of the surface of the earth, trees, permanent crops,
buildings and permanent things if any found in the land.
See Evarister Martin v Apolinary Eustad and Tefunwa Tibishubwamu
(1968) H.C.D. 412, Abel
Rwebogoza v Raphael Mukaja(1970) H.C.D n. 100, Erizeus Rutakubwa v
Jason Angero[1983] TLR 365,
Yeromino Athanse v Mukamulani Benedicto[1983] TLR 370. Note inconsistency in
the limitation of time upon which an individual may institute suit to redeem
the land. In Leonance Mutalindwa v Mariadina Edward [1986] TLR 120, Katiti
J. held that the limitation period for an action for redemption or nullification
of sale of clan land is three months. The same views are expressed in Luttataza
Biteya v Haji Abdul Sulemani[1975] LRT no. 43, Mzee Madrisa v Rwanturaki
Mulagirwa[1977] LRT no. 57.
Malekela Mahita v Kibuwi %zengwa[1989] TLR 113 (HC). Also see Chapter Five,
part 5.3.4 below for the discussion on the redemption of mortgaged or pledged land
under customary law.
Seasonal crops and huts may not be regarded as part of the land.
In A. G. v %oti bin %dugumbi and other (1954) 21 EACA 43 at 53, the term
shamba was used to mean a piece of ground having an owner; a piece of ground
which has been cultivated (in use) as opposed to bush and including the crop
thereon. Difficulties arise though when one wants to incorporate intangible rights

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 as opposed to the concrete nature of land, in the overall meaning of land. I will
hesitate to suggest that the common understanding of land under customary law
knows the concept of intangible rights as understood in English common law
as rights which may be legally enforceable.
However, even for land that may be regarded as individually owned, the right
of exclusion of the general public from interference is not absolute. The
land is always burdened by the peaceful use of others members of the society who
may want to use the land in one way or another.
In many societies, a public right of way is recognized and enforceable. In this,
existing
old public ways used for fetching water, ways leading to grazing ground or farms,
ways connecting villages or a fishermen’s path to the lake etc can not unilaterally
be closed or encroached upon unless the public agrees or actually stops using them.
Depending on the nature of each case, private arrangements giving someone the
right of way may not be legally enforceable.
However, social life calls for the relaxation of strict rules.
Walking over someone’s land without his consent, something that would have
probably amounted to trespass is a common practice in some societies. There is an
implied licence to walk through somebody’s land provided you do not damage the
crops.
In case of resistance from the landowner, land segmentations where land is
fragmented into plots of one acre or less, offers an immediate alte native route. It
is also expected that your Right such as right to light is inapplicable. It is difficult
to imagine a situation resulting in a case over right to light.
In Dinah Mutahyabarwa v Rajab Adam [1981] TLR 40 (HC), Lugakingira J.
stated that under Haya customary law a public right of way (omuhanda) can not be
closed unless the public so agrees or abandon its use.
See Ferdinand Jeremiah v John Mutalemwa[1982] TLR 90.
This is based from author’s own experiences. neighbor will not object to your
digging a water stream across his land. These are burdens which land holders
bear, probably not as legal burdens, but as moral duties based on mutual
understanding in the society.
On occasion where land has passed into different hands from the
developer, it is not uncommon for the improvement such as buildings and
permanent trees to remain in the developer of the land while the land occupation
has shifted to another person or reverted to the original holder. ​In this,
improvements are severed from the land. When land reverts to the original
holder, the landholder gets the land short of the improvements effected on it.
He may allow another person to cultivate the land, he may pledge it, and he may
deal with it as he pleases, but he is not allowed to compromise the interests of the
owner of the improvements. The owner of the improvements at the same time may
continue to benefit from the profits of his labour including transferring its control
and use to another person. This is a peculiar future of customary land rights. It is
a practice which makes the principle of quicquid plantatur solo, solo cedit
redundant. Probably in view of this practice under customary law of
disposing of the land short of improvement and vice versa, section 37 (8) of
the Land Act, 1999 as amended by the Land (Amendment) Act,
2004 provides that under certain circumstance sale of land without
unexhausted See Hussein Jendasham v Tobias Kazinja s/o Kabunda App. to
Governor No. 2/1948 reported in J & F p. 406.
Improvement can be approved by the Commissioner for Lands.

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 The Land Act, 1999 has been used as a mere example since the disposition
of a customary right of occupancy is regulated by customary law and not the Land
Act.
6. Secured interests in land under the granted right of occupancy
As pointed out, the common land tenure is the right of occupancy which is
the right to use and occupy the land. It can take the form of either a granted or a
customary right of occupancy. This part focuses on the secured interest in land
given under the granted right of occupancy.
The 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.
It is a usufructuary right giving the grantee the rights to enjoy the fruits of the
occupation. As
has been observed above, the ultimate ownership is vested in the president
as the paramount landlord.
After acquiring a title to use and occupy public land, the issue is what interest does
such an occupier own?
The holder of a granted right of occupancy has an interest in the land for a fixed
period of time. The estate is for a certain period of time or for a time that can be
made certain.
Thus it is unlike the fee simple, an indefinite estate from the fact that no one can
say at
Also see s. 37 (9) of the Land Act, 1999 as amended by the Land (Amendment)
Act, 2004. Note s. 37
(8) And (9) of the Land Act, 1999 (original text) which provided that no sale of
land without unexhausted improvements shall be approved and that any disposition
as aforementioned shall be void ab initio
Only the president owns the land, the subject can only occupy and use that land.
The time upon which an estate will come to an end is known. any given time
when it will come to an end or the life estate which is certain to come to an end,
but of which the time of its termination is uncertain. If nothing happens to
trigger its revocation, the granted right of occupancy will come to an end exactly at
the end of the duration of time over which it was granted. The time is
indicated in the Certificate of Occupancy.
The time element in the granted right of occupancy is essential, since as already
said, the occupier of the land occupies it for a specific period of time. In
other words, what he owns is just the time in land not the land. In principle the
time element in land is the one that is dealt with as security. It actually does not
matter whether the occupier of the land actually owns the land or not as, if he
has been granted a right to use the land for a specific period of time, the
grant confers on him a legal legitimacy that the land is his throughout the period.
The estate in the land is a transferable interest which means the rights holder may
dispose of the land by mortgage, lease or otherwise.
By mortgaging the land, the rights holder is disposing of part or all of his interest
in the land. It is the principle that one cannot dispose of a greater term than what
he has. For instance, the holder of twenty-one years Term cannot dispose of the
land for twenty-five years, but can deal with it only for the period of twenty-one
years.
s. 22 (1) (i) of the Land Act, 1999.
A conveyance passes the land per se and rights and burdens attached to it. The
disposition of an interest in land affects only the land itself and rights attached to it.

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 The term land as
used in the Land Act, 1999 “includes the surface of the earth and the earth
below the surface and all the substances other than minerals and petroleum
forming part of or below
the surface, things naturally growing on the land, buildings and other
structures permanently affixed to land”.
The definition is repeated verbatimin the Village Land Act, 1999.
Therefore, a conveyance passes the surface of the earth and the earth below the
surface,
things naturally growing on the land, buildings and fixtures. However
minerals and petroleum are excluded from the general public ownership which
means they cannot go with the land. The Mining Act, 1998vests the entire minerals
property and control of minerals found on, in or under the land in the state.
The Act makes it an offence to prospect or conduct a mining operation in
Tanzania without a licence.
Control of petroleum governed by the Petroleum (Conservation) Act, 1981 is
vested in the government as well.
See the definition section of the Act.
Act No. 5 of 1999, see the definition section of the Act.
Act No. 5 of 1998 repealed Mining Ordinance (Cap 125), see s. 115 (1).
Minerals are defined under (definition section) s. 4 (1) to mean “any substance,
whether in solid, liquid or gaseous form, occurring naturally in or on the earth, or
in or under the seabed formed by or subject to a geological process, but does not
include Petroleum or surface water”.
s. 5 state that “subject to this Act the entire mineral property and control over
mineral on, in or under the land to which this Act applies is vested in the United
Republic.” For the purpose of this Act, the term land means, according to s. 4
(1), (a) Land in Tanzania, (including land beneath the territorial sea and
other territorial waters) (b) the seabed and subsoil of the continental shelf.
See s. 6. Act No. 18 of 1981 replaced the Petroleum Ordinance (Cap 225).
Petroleum is defined to include “crude petroleum and any liquid or gas made from
crude petroleum, coal, schist, shale, peat or any produce of crude petroleum and
includes condensate”, See Written Laws (Miscellaneous Amendments) Act, 2003,
No. 11 of 2003 which amended s. 3 of Act No. 18 of 1981.
In addition, dealing in land does not affect water rights or rights over a
foreshore because the right holder does not automatically acquire the
aforementioned rights nor can he pass the right to mines or gas or rights to
appropriate and remove for gain or research any flora or fauna naturally or
present on the land or any paleontological or archaeological remains found
on the land. Dealing in land will affect these rights unless they were expressly
granted to the grantee of the right of occupancy. It can be noted that the Land Act,
1999 provides for corporeal hereditaments but does not specifically provide for
incorporeal hereditaments in the definition of land. This can be contrasted with the
pre Land Act, 1999 statutes, which provided for a broader meaning of land.
Notably, section 2 (ii) of the Conveyancing and Law of Property Act, 1881
define land to include land of any tenure, and tenements and hereditaments,
corporeal
and incorporeal, and houses and other buildings, also undivided shares in
land.
Furthermore section 6 (i) provides that a conveyance will operate to
convey with the land, all the buildings, erections, fixtures, commons hedges, and

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 fences attached to the soil.
Furthermore the English Interpretation Act, 1889under section 3 stated that
the expression “land shall include messuges, tenements, and hereditaments,
houses, and buildings of any tenure”. Unfortunately the Interpretation of Laws
and General Clauses
See s. 22 (2) of the Land Act, 1999.
The Land Ordinance (Cap 113) and The Land (Law of Property and
Conveyancing) Ordinance (Cap. 114) did not contain a definition of land. 44 & 45
VICT. Conveyancing and Law of Property Act, 1881 was the statute of general
application applicable in Tanzania. 52 & 53 VICT Act, 1972 does not contain the
definition of land. In determining the rights and obligations that run with the
land, one may rely on the fact that on the registration of certificates of
occupancy, all covenants and conditions contained in the certificate of
occupancy will be registered as well.
Furthermore, all subsisting mortgages or charges at the time of registration will be
registered too.
In this way, on transfer of the land, all incumbrances registered or entered in the
land register and any charge created over land pass with the land.
1

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