The Disposition of a Right of Occupancy in Tanzania The Effect of Refusal of Commissioners Approval

This brief note will discuss the correct meaning of the phrases shall be inoperative and shall be ineffectual as used in the Land Act, No. 4 of 1 . !hen so doing, the note will ma"e reference to landmar" case#s$ in this area and tr% to assess their correctness in terms of their decisions, and see how other writers commented and gave out their understanding thereto. This note is solel% based on personal arguments with few references cited where desirable. &nder the Land Act, No. 4 of 1 #as revised in '((4$, disposition of a right

of occupanc% is covered under part )* subpart *** of the Act. +or a disposition to be operative and,or effective, it has to compl% with the pre-determined re.uirements set out in the Land Act and an% other law currentl% being in force, covering the relevant sub/ect matter. * will not go through all re.uirements for a valid and effective disposition. The great concern of this note will be the re.uirements set out under sections 01#2$ and 31#1$ of the Land Act. To be more specific, * will concentrate much on the implications associated with the phrases shall be inoperative and shall be ineffectual as used under sections 01#2$ and 31#1$ of the Land Act, respectivel%. * would consider these two phrases as denoting the same meaning onl% that the% are e4pressed in different terminologies. To that end, whenever the word inoperative is used, it should also mean ineffectual !hile assessing the impacts of these terms, * will be focusing on what the Late 5r. 6ebron 7teven 8ondwe once tried to challenge the decisions of decisive cases in this area, particularl% the case of Abualy Alibhai Azizi v.
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Bhatia Brothers Ltd #1 #unreported$.

$, miscellaneous 9ivil Appeal No. 1 of 1

7ection 01#2$ of the Land Act ma"es it inoperative an% disposition of a right of occupanc% carried out without first obtaining the approval of the commissioner for lands. The same effect is accorded to an% transaction affecting land carried out in a wa% other than in accordance with the Land Act. #7ee sect. 31#1$$. The great controvers% which surrounds the minds of academicians and,or practitioners is the true construction of the phrase inoperative. :oes that phrase mean void in totality or /ust inoperative as to the e4tent of such disposition; The abual% a<i<i case #cited above$ settled this controvers%. The court of appeal in that case held that the e4pression shall not be operative does not mean void or another meaning to the same effect. The court held that it means at least that the contract in question is valid . This is where 5r. 8ondwe tried to challenge the decision at page 40 of his boo" #5anual for transfers of rights of occupanc%, '(1($, where after .uoting the ruling above, he wrote, and * .uote= this where the problem begins, how can something which is inoperative be, at the same time, valid? *f * understood him well, what he meant is that the contract cannot be inoperative and at the same time be valid. >efore going further, * even doubt if that is the correct view. To m% "nowledge, it is possible for the same contract to be inoperative and valid at a time. A contract is inoperative under the law if it cannot serve the purpose for which it was entered b% the parties. The contract is valid if met all necessar% re.uirements and the parties can enforce the same in the court of law. #7ee Abual% case, at p. 3$

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9oming bac" to our concern, with due respect to the late ?on. 6ebron 7teven 8ondwe, * shall e4press m% inabilit% to subscribe to his attempt to challenge the decision in Abhually Azizi case. * thin" 5r. 8ondwe could not identif% which the court #and probabl% the Land Act$ considers inoperative and what ma% at least be valid. !hat is being inoperative here is the actual transfer or disposition itself. *t is that ver% act of transferring the title. This does not include the pre @contracts entered between the parties prior to the stage of see"ing the commissioners approval. * would opine that, there is no controvers% as far as the decision in that case and the provisions of the Land Act are concerned. To m% "nowledge and understanding, what is considered inoperative is the disposition per se, and not the contract which the parties entered prior to reaching the stage demanding commissioners approval. *f %ou carefull% go through sections 01#2$ and 31#1$ of the Land Act, %ou ma% find that what the drafters of the Act intended to consider as inoperative is not the contract of disposition, but the actual disposition itself, and it is inoperative onl% to the e4tent of such transfer # inoperative only as to change of title$ as opposed to affecting the rights and obligations which the parties have agreed before. *n other words, refusal of the commissioners approval cannot render the pre-contract between the parties void, let alone being inoperative. *n more clear terms, if the intended disposition does not get commissioners approval, the interest in land which the parties intended to transfer cannot be transferred as per the law. That is the correct meaning of the disposition being inoperative. Aou will agree with me that ever% disposition affecting interest in land is precede b% personal contracts into which the parties enter to agree on what
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will be the covenants binding each of them. These contracts are important because the% contain matters which the Act empowers the parties to agree upon. *t is the Law of 9ontract Act #9ap 042 B.C '(('$ which sets out standards through which such contracts ma% be declared void or voidable. *t should also be "nown that, the Law of 9ontract Act is the main law governing contract matters in the countr%. Therefore, an% law attempting to address issues of contract shall confirm to what the Law of 9ontract Act provides. Let us consider section '#'$ of the 9ontract Act. 7uch section states= Act comes .where any written law in !anzania on the date on which this into operation provides that an agreement "howsoever

described#, of the $ind specified therein, shall not be enforceable by action unless or until certain re%uirements therein specified are complied , or certain consents are obtained, no such agreement shall be void by reason only that it is not enforceable by action under the provision of that law for want of compliance with any such re%uirement or of the obtaining of any such consent.. The section above is self e4planator%. *t is m% considered opinion that the drafters of section 01#2$ and 31#1$ of the Land Act were aware of the e4istence of the provisions of section '#'$ of the 9ontract Act. Therefore, the% could not draft something which conflicts that law. That can reasonabl% not be the intention of legislature. Therefore, an% attempt to rule that the e4pression inoperative means void would be contrar% to the e4press provision in section 0#'$ of the contract Act. *t would even mean going against the true intention of drafters of the Land Act. Apart from that, holding that the phrase inoperative means void would mean to /eopardi<e the rights of parties to the contract preceding the actual disposition. The basis of this argument is that= when parties intends to transact the sale of propert%, sa% piece of land, among other stages, there is
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a stage where the% are re.uired to draft a sale agreement,contract. 7ome of these contracts demand that some advance pa%ments be made. 7o one of the parties will ta"e advantage of them. Therefore, if %ou rule that their contract if void /ust because commissioners approval was not granted means that the part% #normall% the bu%er$ who paid under the contract will not be able to recover the mone% he paid because %ou cannot claim repa%ment and,or compensation out what does not e4ist. * do understand the e4istence of section 32 of the contract Act but that section is not free from e4ceptions. 7till, holding contrar% to what was held in abual% a<i<i case would result into several .uestions li"el% to be left to be left unanswered.

Fi iri !iganga !!" #$ons% & Tumaini 'niversity (a umira #T'(A% The !a) *chool of Tanzania+ ,-th Cohort & ./,-0 /1,2 -34 ,13 /56- ,51 314 Fi iriliganga78gmail0com