FACULTY : FBIS.

PROGRAME : LL.B II.

COURSE NAME : ADMISTRATIVE LAW.

COURSE ANTE : LAW 204.

COURSE INSTRUCTOR : PROF. MSANGA, R.

TASK : GROUP ASSIGNMENT NO 9.

PARTICIPANTS:

S/ STUDENT REGISTRATION SIGNATURE

N NAME NUMBER
1 VIOLET SOLOMON MOCU/LL.
B/2116/23
2 KELVIN SEMU MALONGO MOCU/LL.
B/2012/23
3 HAPPYNESS YONGO MOCU/LL.
MAKAYA B/2046/23
4 ELIAS JOHN BARAZA MOCU/LL.
B/1919/23
5 NASMU MOHAMED MOCU/LL.
LOWOLA B/1954/23
6 FARAJI KATANI ZONZO MOCU/LL.
B/2040/23
7 HAIKA SWAI MOCU/LL.
B/2126/23

QUESTION.
A right of occupancy is normally accompanied with conditions. The
conditions are one of the ways in which the government can ensure control
and regulate development in land. If properly used, the conditions can
facilitate orderly land-use planning with the support of planning laws. Discuss

Right of occupancy refers to the legal entitlement to use and occupy the land
and this include the rights held by Tanzanian citizens of African descent or
groups of Tanzanian citizens of African descent who are utilizing or residing
on land in accordance with customary laws 1. The concept of right of
occupancy is similar to the concept of land tenure. The term land tenure is
derived from a latin word “tenure” which means to hold. Therefore, land
tenure means a kind of system of land ownership and control pattern 2. Also,
the term land tenure can be defined as refers to a system of holding land 3.
In Tanzania we have 2 types of land tenure (right of occupancy) means that
we have

two types on how land can be held 4. Section 4(3) of the Land Act(Cap 113,
R,E 2019) provided for these two land tenure systems(rights of occupancy),
which are Granted right of occupancy and Customary Right of Occupancy.
Here below is some elaboration of these types of right of occupancy (tenure
systems).

GRANTED RIGHT OF OCCUPANCY.

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 which has been surveyed and is granted by the President or an
authorized officer5. A granted right of Occupancy can only be issued for
surveyed land; ensuring that boundaries are cleary defined and recognized
legally. In Joshua Okuku v Sheban Adamu, the High court stated that
“granted right of occupancy given after the land is surveyed”. In Obed Mtei

1
Section 2of Cap 113, R,E 2019
2
Rwagasira, A. (2012). Land as a human right: A History of Land Law and Practice in Tanzania. Mkuki na Nyota.
p.45.
3
Tenga, W.R., &S.J. MRAMBA (2008) Manual on land law and conveyancing in Tanzania, Tumaini University : Dar es
Salaam, p. 31
4
Rwagasira, A. (2012). Land as a human right: A History of Land Law and Practice in Tanzania. Mkuki na Nyota.
p.94.
5
Section 22(1)(a) to(c) of Cap 113, R,E 2019.
v Rukia Omari, 6it was stated that. “Normally before any survey to be
conducted it is a duty of the surveyor to make sure that the third party’s
interests are cleared and signifying their approval on a particular certificate”.
Also, for granted right of occupancy to be legally recognized, it must be
registered according to the Land Registration Act 7. Once, a granted right of
occupancy is issued, the right of occupancy can be classified according to
duration of grant; This category includes, long term rights of occupancy (99
years), short term rights of occupancy (less than 99 years but not less than 5
years) and periodic term rights of occupancy (year to year or not more than
4 years). Alternatively, the classification may be base on function or use or
purpose; Under the functional classification, the rights of occupancy include:
- agricultural, pastoral land, mixed agricultural and pastoral land, and
building purposes8.

CUSTOMARY RIGHT OF OCCUPANCY.

Customary Right of Occupancy means right of occupancy created by issuing

of a certificate of customary rights of occupancy 9. Sometimes customary
right of occupancy is also known as Deemed right of occupancy. Deed right
of occupancy is defined to mean the title of Tanzania citizen of African
descent or a community of Tanzania citizen of Africa descent using or
occupying land under and in accordance with a customary Law. 10 Generally,
the Customary Right and Deemed Right of Occupancy are regulated by the
Village Land Act Cap 114 R.E 201911.

Land delivery always goes with land control systems for economic
development. For example a granted right of occupancy goes with certain
conditions which requires strict compliance by the holder of a granted right
of occupancy, meaning that the security of tenure of the holder of a granted
right of occupancy is dependent on fulfilment of these development
conditions which include: payment of Premium, occupying land for specific
term which can comes to an end by the affliction of time but which can be
subject to renewal, payment of annual rent, and other general or specific
conditions that are imposed or may be imposed by the commissioner under

6
[1989] TLR 111 CA
7
Section 22(1)(d) of Cap 113, R,E 2019
8
Rwagasira, A. (2012). Land as a human right: A History of Land Law and Practice in Tanzania. Mkuki na Nyota.
p.98-99.
9
Section 18 of The Village Land Act Cap 114
10
Section 2 of The Land Act (Cap 113 R.E 2019)
11
Rwagasira, A. (2012). Land as a human right: A History of Land Law and Practice in Tanzania. Mkuki na Nyota.
p.104.
the law12. As is the case with conditions accompanying the grant of
occupancy under the Land Act, the Village Land Act, too, has conditions that
go with the granted right which are quite similar to those of granted right of
occupancy, including: payment of rent, occupying the land indefinitely or
within prescribed length of time and other conditions that are or may be
described from time to time13. Let look some of the conditions imposed in
relation to the right of occupancy.

Payment of Premium.

This refers to the amount of money an occupant must pay to the granter for
the right to occupy the land.14 In granted right of occupancy, this premium is
typically a onetime payment made at the begin of the occupancy period and
is in separate from any ongoing land or fees that may be required. In
determining the premium amount, the Minister will consider: The land's
allowed use under the granted right of occupancy. The land's market value,
evidenced by sales, leases, and other transactions in the area where the
right of occupancy is granted, regardless of whether these transactions
comply with this Act or the land laws it replaces, The prices paid for land at
auctions conducted by or on behalf of the government. The value indicated
by the highest offer received in response to government, local authority, or
parastatal tenders for land development in the area. Any existing
improvements on the land that are not yet exhausted. A written assessment
of the land's open market value by a qualified valuer 15.It is important to be
carefully reviewed the term of the grant arguments to understand the
payment obligations associated with the grant right of occupancy.
Essentially, this shows that the government is in control over the land
because any transfers or disposition of land cannot be complete if such
payment is not yet paid. Failure to make the required premium payment
may results in termination/revocation of the right of occupancy granted in
the agreement.16 In light of the above statement, refer the of Sarjit Singh
Vs Sebastian Christom17 It was stated that the grant of right of occupancy
is not automatic as some people tend to think, is accompanied by a certain
condition including to pay requisite fees and once this is done the right of
occupancy is created and granted to grantee. Failure to pay a premium or
any instalment and on the date at which the payment of that premium or
12
Ibid, p. 99.
13
Ibid, p. 104.
14
Section 31(1) of The Land Act (Cap 113 R.E 2019)
15
Ibid, section 31(3)
16
ibid, Section 31(5
17
[1988] TLR. 24
instalment falls due shall be deemed to be a breach of a condition of the
right of occupancy which shall give rise to revocation of a right of
occupancy18.

In customary right of occupancy, the village council has the power to

demand payment of a premium (an initial payment) when granting a
customary right of occupancy. When deciding the premium amount, the
village council must seek and consider advice from the Commissioner. This
advice can be given directly or published for all village councils. The
Commissioner’s advice will be based on the principles used to determine
premiums for granted rights of occupancy, as outlined in subsection (3) of
section 31 of the Land Act 19. A certificate of customary right of occupancy is
not valid, until the demanded premium, as stipulated in subsection (2), has
been paid in full or as specified in the grant contract 20.

Length of term.

As noted the duration of the right of occupancy is definite. A right of

occupancy may be granted for a term up to but not exceeding ninety-nine
years; for a term together with an option for a further term or terms which
together with the original term may be up to but shall not exceed, ninety-
nine years; or from some lesser periods 21. Where the right of occupancy
comes to an end through affluxion of time the person or organisation
occupying the land shall if complied with the terms and conditions be offered
a renewal of that right of occupancy before being granted to any other
person22. A customary right of occupancy can be granted for an indefinite
term or any specified period to a citizen or a group of citizens, with a general
presumption that the term will be indefinite. It can also be granted for a
specified term with an option for renewal, provided that the total duration
does not exceed ninety-nine years. Additionally, it can be granted on a
yearly basis or for periods shorter than a year, subject to the village council’s
determination with at least one year's notice or less. The total initial fixed
term for such grants should not exceed four years 23.

Rent.

18
Section 31(5) of the Land Act (Cap 113 R.E 2019.)
19
Section 26 (1) and (2) of The Village Land Act Cap 114
20
Ibid, section26(4)
21
section 32 (1) of the Land Act (Cap 113 R.E 2019.)
22
section 32 (4) of the Land Act (Cap 113 R.E 2019.)
23
Section 27(1) of The Village Land Act (Cap 114, R.E 2019)
The holder of a granted right of occupancy must pay an annual rent as
stipulated by the Public Finance Act Cap. 348. The rent can be paid in
installments and at intervals determined by the Commissioner or specified in
the certificate of occupancy. Rent should be paid to the Commissioner or an
authorized officer, either at the Commissioner's office or another designated
place. In determining the amount of rent the commissioner will consider: The
size of the land covered by the right of occupancy, The permitted use of the
land under the granted right of occupancy, The value of the land based on
sales, leases, and other transactions in the local market, irrespective of
whether these transactions comply with the current or previous land laws
and the amount of any premium that was required to be paid when the right
of occupancy was granted24.

In customary right of occupancy, also, The village council may require the
payment of an annual rent for customary right occupancy. In the case of
Push Mobile Media Limited Vs Amos Misana Mabagala 25 the appellant
failed to pay rent as agreed, where it was claimed by respondent at District
Land and Housing Tribunal of Kinondoni at Mwananyamala, [herein as trial
Tribunal] the trial judge state that the trial chairperson, finding the evidence
of the applicant weighed heavier on balance of probabilities, proceeded to
award the reliefs prayed by the applicant in this application. It is my view
that the trial chairperson is correct to award the claimed reliefs. I see no
reason to differ with the findings and judgment of the trial tribunal, hence, I
dismiss this appeal it its entirety.

Conditions on land use.

Also, the right of occupancy will come with conditions which detect how the
land will be used. For example. Each grant of a customary right of occupancy
includes the following implied conditions: The occupier will use the land
responsibly and ensure that anyone occupying or working the land with
them, or with their permission, will: Keep and maintain the land in good
condition. If for farming purposes, practice good husbandry as traditionally
practiced in the area. For pastoral purposes, use the land sustainably,
following the best customary principles of pastoralism in the area. Necessary
permissions must be obtained before any buildings are erected, and no
construction will begin until those permissions are secured 26.

Change of land use.

24
Section 31(1) of the Land Act (Cap 113 R.E 2019.)
25
[2018] Land Application No. 284.
26
Section 29(1) of The Village Land Act (Cap 114, R.E 2019)
this is another condition that the government has placed upon to the
ownership of land and this is to ensure there is a proper use, utilization and
effective control of land by the government. The law requires however owns
land if he/she want to change the use of land for example the land is located
in the area which is planned to be commercial area and the owner wants to
change it to use the land for residential purpose or land is for industrial
purposes and wants to change to be a commercial area he has to seek the
consent from the land commissioner. This is as per section 35 of the of the
land Act.27

benefits of these imposed condition on land in the country.

As right of occupancy is normally accompanied with conditions. The

conditions are one of the ways in which the Government can ensure control
and regulate development in land. As the land is one of the important natural
resources, if properly used, with the condition as control measures of the
land the country will be benefited in several ways such as.

Economic and Social Benefits.

By enforcing conditions, the government can ensure that land development

contributes to economic growth and social welfare. For example, conditions
such as payment of premium and payment of rent 28, can generate
government revenue. Also, the land use condition that, some certain land
are for farming only and other for pastoralism only 29, this promote
agricultural development in the country which in turn will lead to economic
development which will facilitate social welfare in the country.

Prevention of Land Misuse.

Conditions prevent land misuse and speculation. By setting strict guidelines

on land use and development, the government can discourage practices that
could harm the environment or disrupt community cohesion. For example,
Each grant of a customary right of occupancy includes the following implied
conditions: The occupier will use the land responsibly and ensure that anyone
occupying or working the land with them, or with their permission, will: Keep
and maintain the land in good condition, For farming purposes, practice good
husbandry as traditionally practiced in the area.For pastoral purposes, use
27
Section 35(1) of the Land Act (Cap 113 R.E 2019.)
28
Tenga, W.R., &S.J. MRAMBA (2008) Manual on land law and conveyancing in Tanzania, Tumaini University : Dar
es Salaam, p. 107
29
Srction 29(2)(i) and (ii) of The Village Land Act (Cap 114, R.E 2019)
the land sustainably, following the best customary principles of pastoralism
in the area30.

Encouraging Infrastructure Development.

By stipulating requirements for infrastructure, for example, If the grant's

purpose is to construct buildings, the grantee must apply for planning
consent under the Town and Country Planning Act Cap. 335 and a building
permit under the Township (Building) Rules within six months of receiving
the right of occupancy31. This condition help to promote coordinated
infrastructure development, as the people can only build a certain
infrastructure as per requirements imposed in a given land.

In conclusion, in order for the government to ensure that these conditions

are enforceable certain remedies or mesuares are available in case of breach
of these conditions, namely, revocation of the right of occupancy and paying
of fine to breacher of the condition. It provided that The President shall not
revoke the right of occupancy saves for the good cause, from the light of the
statement above referred the case Rajabu Hassara Vs Saraya Rashid 32
The appellant was offered the right of occupancy was eventually revoked by
the President for alleged noncompliance of conditions stipulated in the right
of occupancy. Also in Patman Garments Industries Ltd v. Tanzania
Manufacturers Ltd33, The court held inter alia, that the law empowered the
president to revoke the right of occupancy for good cause.

REFERENCE

STATUTES

1. The Land Law Act, [CAP 113 R.E 2019]

2. The Village Land Act, [CAP 114 R.E 2019]
3. The urban planning Act, no. 8 20

BOOKS
1. Rwagasira, A. (2012). Land as a human right: A History of Land Law and Practice in Tanzania.
Mkuki na Nyota.

30
ibid
31
Section 34(2) the Land Act (Cap 113 R.E 2019.)
32
[1983] TLR 111
33
[1981] TLR 3003 (CA)
 2. Tenga, W.R., &S.J. MRAMBA (2008) Manual on land law and
conveyancing in Tanzania, Tumaini University : Dar es Salaam

CASES
1. Patman Garments Industries Ltd v. Tanzania Manufacturers Ltd
[1981] TLR 3003 (CA).
2. Push Mobile Media Limited Vs Amos Misana Mabagala [ 2018]
Land Application No. 284
3. Obed Mtei v Rukia Omari [1989] TLR 111 CA
4. Rajabu Hassara Vs Saraya Rashid [1983] TLR 111
5. Sarjit Singh Vs Sebastian Christom [1988] TLR 24