Abandonment and Adverse Possession : Assessing the Role of Land Acts

ABANDONMENT AND ADVERSE

POSSESSION

Assessing the Role of Land Acts

By

MNYESHI, PETRO

AND

NGOWI, ANNA M.

Supervisor: Mgongo, R.

THIS RESEARCH PAPER IS SUBMITTED AS A PARTIAL

REQUIREMENT FOR A BACHELOR DEGREE OF LAWS

ACQUIREMENT AT TUMAINI UNIVERSITY – IRINGA UNIVERSITY

COLLEGE.

2011

ABANDONMENT AND ADVERSE

POSSESSION

Assessing the Role of Land Acts

By

MNYESHI, PETRO

AND

NGOWI, ANNA M

Supervisor: Mgongo, R.

THIS RESEARCH PAPER IS SUBMITTED AS A PARTIAL

REQUIREMENT FOR A BACHELOR DEGREE OF LAWS

ACQUIREMENT AT TUMAINI UNIVERSITY – IRINGA UNIVERSITY

COLLEGE.

TUMAINI UNIVERSITY

IRINGA UNIVERSITY COLLEGE

2011

i

DECLARATION

We Mnyeshi, Petro and Ngowi, Anna M. do solemnly declare that this research paper is a result

of our own investigation and findings except where stated, and that this paper has not been

presented and will not be presented to any other University for a similar or any other degree

award.

MNYESHI, PETRO AND NGOWI, ANNA M.

SIGNATURE…………………… SIGNATURE ……………………

THIS………..DAY OF …………….. 2011

ii

SUPERVISOR’S CERTIFICATION

The undersigned do hereby sign to certify that, he has read and recommend that, the Tumaini

University, Iringa College of Tanzania, accept this Research report being a partial fulfillment of

the requirement for the award of a degree of Bachelor of Laws (L.L.B) at 2011.

Signed this………….day of………………...2011.

……………………………………..

RENATUS MGONGO.

(SUPERVISOR)

iii

ACKNOWLEDGEMENT

It is our wish to express our gratitude and sincere thanks to the Almighty God for keeping us

alive, giving us health and for helping us to accomplish our research. Without Him, we could

have not done it.

Despite the fact that this Research Report is the product of our own personal efforts, it will be

sunfair not to mention some people who have facilitated the outcomes of the work. Although, it is

not possible to mention by names all of them, who in one way or another have contributed to the

completion of this work, we would like to express our special gratitude to the following persons;

Our special thanks go to our parents, for enabling us to be at the University in all aspects; from

financing college fees, research costs and their continued moral and parental support which have

altogether made this research possible. Without them, we surely would have not done it.

We also owe much thanks to Mr. Lwijiso Ndelwa, the then Lecturer at Tumaini University –

Iringa University College who has contributed a lot to the coming of this Research Report. He is

the one who assisted Mr. Renatus Mgongo, Land Law Facilitator in giving lectures in

Abandonment of Land and Adverse possession.

We also owe much thanks to our supervisor, Mr. Renatus Mgongo who, despite being

overwhelmed with other duties, lecturing and at the same time being the Faculty of Law Dean; he

supervised us from the beginning till the end of this work.

iv

ABBREVIATIONS

(PC) – Primary Court

AC – Appeal Case

All ER – All England Law Reports

Ch. D – Chancery Division

Civ. App. – Civil Application

DLHT – District Land and Housing Tribunal

EACA – East African Court of Appeal

ed. – Edition

fn. – Foot-note

no. – Number

p. – Page

pp. – Pages

QB – Queens Bench

R.E – Revised Edition

UN – HABITAT – United Nations Human Settlements Programme

Vol. – Volume

Vs. – Versus (Against)

WLR – Weekly Law Reports

v

LIST OF LEGAL INSTRUMENTS

CONSTITUTIONS

Constitution of the United Republic of Tanzania, Chapter 2 [R.E 2002]

STATUTES IN TANZANIA

Civil Procedure Code, Chapter 33 [R.E 2002]

Land (Amendment) Act, Act No. 2, 2004

Land Act, Chapter 113 [R.E 2002]

Land Registration Act, Chapter 334 [R.E 2002]

Law of Limitation Act, Chapter 89 [R.E 2002]

Village Land Act, Chapter 114 [R.E 2002]

STATUTES IN ENGLAND

Limitation Act, 1980

vi

LIST OF CASES

Alimohammed Adamji Vs. Punja Gudka (1953) 20 EACA 78

Asher Vs. Whitlock (1865) LR 1 QB 1

Buckinghamshire County Council Vs. Moran [1989] 3 WLR 152

Corea Vs. Appuhamy (1912) AC 230

Duke of Leeds Vs. Amherst 41 ER 886 at 888

General London Commercial Estates Ltd. Vs. Kato Kogaku Co. Ltd (1998) All ER 948

Hyde Vs. Pearce [1982] 1 WLR 560

Kimenanga Vs. Mevongori Mosoni

Leigh Vs. Jack(1879) 5 Ex D 264

Marylebone Property Co. Ltd. Vs. Fairweather (1963) AC 510

Mulcahy Vs. Curramore Property Ltd. (1974) Vol. 2 NS WLR 464

Ngutsu Mwajaira Vs. Safari

Nyagobro Ginonge Vs. Chagha Gasaya(PC) Civ. App. 151-D-67; 19/9/68

Rain Vs. Buxton (1880) Vol. XI Ch. D. 5

Rashid bin Ali Vs. Bakari bin Kayanda(1941) Governor’s Appeal no. 31

The Mayor and Burgesses of London Borough of Hounslow Vs. Minchinton(1997) 74 P & CR

221

Tichborne Vs. Weir(1892) 67 LT 735

Williams Brothers Ltd. Vs. Referty[1957] 3 All ER 593

Yoseph Tindibale Vs. Stephano Munyangani (1955) C.R.O LR Vol III P. 9

TABLE OF CONTENTS

PRELIMINARY PAGES

DECLARATION ........................................................................................................................................i

SUPERVISOR’S CERTIFICATION........................................................................................................ ii

ACKNOWLEDGEMENT ....................................................................................................................... iii

ABBREVIATIONS ..................................................................................................................................iv

LIST OF LEGAL INSTRUMENTS..........................................................................................................v

LIST OF CASES.......................................................................................................................................vi

CHAPTER ONE: RESEARCH DESIGN..................................................................................................1

1.0 Introduction...................................................................................................................................1

1.1 Background of the study ................................................................................................................2

1.2 Statement of the problem ...............................................................................................................3

1.3 Objectives of the Research.............................................................................................................4

1.4 Significance of the Research..........................................................................................................4

1.5 Hypothesis formulation..................................................................................................................5

1.6 Research Methodology ..................................................................................................................5

1.6.0 Types of Data collection ............................................................................................................6

1.6.1 Research Tools/Methods/Techniques ........................................................................................6

1.6.2 Sampling ....................................................................................................................................6

1.6.3 Data Analysis and Processing ....................................................................................................7

1.7 Literature review............................................................................................................................7

CHAPTER TWO: THE CONCEPTS OF ABANDONMENT, ADVERSE POSSESSION AND THEIR

APPLICATION .......................................................................................................................................11

2.0 Introduction..................................................................................................................................11

2.1 Definition of concepts and their applications...............................................................................11

2.1.0 Abandonment ...........................................................................................................................11

2.1.0.1 Elements of Abandonment.......................................................................................................16

2.1.0.2 Land Acts on Abandonment.....................................................................................................17

2.1.1.2.1 Position of the Land Act. .....................................................................................................17

2.1.0.2.2 Position of the Village Land Act..........................................................................................20

2.1.1 Adverse possession ..................................................................................................................22

2.1.2.1 Conditions an Adverse possessor must fulfill in adverse possession.......................................23

2.1.2.2 Adverse possession of Public land...........................................................................................26

2.1.2.3 Rationale for Adverse possession. ...........................................................................................26

CHAPTER THREE: CRITICAL ANALYSIS OF THE ROLE OF LAND ACTS AND NON – LAND

ACTS IN MATTERS OF ABANDONMENT AND ADVERSE POSSESSION...................................29

3.0 Introduction..................................................................................................................................29

3.1 Study Findings and Analysis........................................................................................................29

3.1.0 The question of time ................................................................................................................30

3.1.1 The question of adverse possession in public land ..................................................................32

3.1.2 The question of adverse possession in registered land and in unregistered land .....................32

3.1.2.1 In Registered land ........................................................................................................................32

3.1.2.2 In Unregistered land.....................................................................................................................33

3.1.3 Awareness of the public on issues of abandonment and adverse possession...........................34

3.2 Testing of hypothesis ...................................................................................................................35

CHAPTER FOUR: RECOMMENDATIONS AND CONCLUSION.....................................................37

4.0 Introduction..................................................................................................................................37

4.1 Recommendations........................................................................................................................37

4.1.0 To scholars of law....................................................................................................................37

4.1.1 To the Parliament .....................................................................................................................38

4.1.2 To the Government ..................................................................................................................39

4.1.3 To the Judiciary........................................................................................................................39

4.1.4 To the Public ............................................................................................................................40

4.2 Conclusion ...................................................................................................................................40

BIBLIOGRAPHY....................................................................................................................................42

1

CHAPTER ONE

RESEARCH DESIGN

1.0 Introduction

Abandonment was defined in the case of Alimohammed Adamji Vs. Punja Gudka1 by Sir

Barclay Nihill (P) to mean the cesser of occupation without animus revertendi.2 Abandonment

involves two (2) distinct elements, which are mental element and physical element. Mental

element consists of the intention to abandon all rights in the land while physical consists of the

external fact of leaving the land.3 Both elements should be there to construe abandonment, one

can leave the land but she/he could be having an intention to return, example, by frequently

visiting the area / plot of land or by placing a care-taker of the land.

Adverse possession on the other hand is a prolonged and uninterrupted occupation of land

without the consent of the owner. Thus, there are two (2) classes in Adverse possession; the

true owner/paper owner and the adverse possessor. Adverse possession was also referred to as

the possession that is inconsistent with the title of the true owner.4

Adverse possession becomes the method of acquiring land apart from the normal ones of

buying, being given as a gift, being given as inheritance and the like. This happens when the

true owner has abandoned the land in a considerable period. It should be noted that, “the notion

of adverse possession does not apply in public land”.5

1 (1953) 20 EACA 78

2 Animus revertendi is a Latin phrase which means intention to return

3 Dr. Tenga, W. R and Mr. Sist Mramba. Manual on Land law and Conveyancing in Tanzania. (2008) p. 154

4 Corea Vs. Appuhamy (1912) AC 230

5 Op ct fn. No. 3 p. 350

2

Like abandonment, Adverse possession has also two (2) elements, which are factual possession

and intention to possess (animus posidendi). In factual possession, the possession by the

adverse possessor should be open, not secrecy, that is, possessing the land like the true owner

does, but it should not be by the permission of the true owner. This has been said in the case of

Raid vs. Bustorn6. For the second element of adverse possession, intention to possess, the

adverse possessor must show the use of the property for his/her own benefit. It also should be

noted that, “it is difficult to establish adverse possession to a person with certificate of

occupancy under the granted right of occupancy especially for registered land”

Abandonment and Adverse possession are two sides of the same coin, this is due to the fact

that, it is when the true/paper owner has abandoned land for a considerable period of time then

adverse possession will occur subsequent to the possession of the land by the adverse

possessor.

1.1 Background of the study

Under Customary Law, there have been cases that have ruled out that the concept does not

exist, and those that favour the concept.7 Example; in the case of Kimenanga Vs. Mevongori

Mosoni8 the Court ruled on the existence of the concept of abandonment, but in the case of

Ngutsu Mwajaira Vs. Safari9, the assessors said the concept was not in existence, “… the

owner of the land can always claim it back again no matter how long he has been away”.

6 (1980) Vol. XI Ch. D. 5

7 Dr. Tenga, W. R and Mr. Sist Mramba. Manual on Land law and Conveyancing in Tanzania. (2008) p. 149

8 1962, James R.W and Fimbo G.M pp. 299 - 300

9 Ibid pp. 568 - 569

3

Before 1999, that is, before the Land Act10

and the Village Land Act11

, the concept of

abandonment was not codified, thus, the coming of the Land Act12


relieve the work of the Magistrates, Court Assessors, Judges and Justices of Court of Appeal in

dealing with issues of abandonment.

1.2 Statement of the problem

This paper is concerning with the assessment of the role of the Land Acts in matters of

abandonment and adverse possession; it has looked upon if there are clear provisions on issues

of abandonment, and if they are exhaustive, this is in the sense that, if they provide each and

everything concerning abandonment and adverse possession.

But roughly, one can say that, the Land Acts has fairly provided for issues of abandonment and

adverse possession but they are not comprehensive in such issues, that they are in lacunae.

Example, issues of time so that a land is considered abandoned is not well addressed,

sometimes even the court does not say it is for how long, example in Nyagobro Ginonge Vs.

Chagha Gasaya,14

the Court said, “………It would be neither good law nor in accordance with

public policy to allow a plot holder to depart from the land for such a number of years with the

result that the land may lie fallow or revert to bush.” The court did not say it is for how long.

10

Chapter 113 [R.E 2002] 11

Chapter 114 [R.E 2002] 12

Op ct fn. No. 10 13

Op ct fn. No. 11 14

(PC) Civ. App. 151-D-67; 19/9/68

4

Thus, this paper will address such issues and recommendation will be provided to all persons

in the cadre of law, example, scholars of law which includes students in law, lecturers; also to

the Parliament; to the Government; to the Judiciary and to the public at large.

1.3 Objectives of the Research

The following are the Objectives of the Research;

i. Exploring more on the issues of abandonment and adverse possession, and to ease the

study to scholars of law.

ii. Developing new ideas, because when researching one would find new things and ideas

that were not in his or her mind before.

iii. To find some loopholes in the Land Acts in issues of Abandonment and Adverse

possession and how they can be solved.

1.4 Significance of the Research

This study has the following Significances;

i. Partial requirement before acquiring a Bachelor of Laws at Tumaini University – Iringa

University College at 2011.

ii. Widening the scope of understanding in the subject matter, that is, Abandonment and

Adverse possession.

5

iii. After realizing the problem from the Research on Abandonment and Adverse

possession, the Ministries concerned for Legal affairs and Land will be able to do some

Legal changes on these issues.

iv. To make a start to those who will be interested in doing a Research on Abandonment

and Adverse possession.

1.5 Hypothesis formulation

It is true that the Land Acts discusses the concept of abandonment and adverse possession

(though implicitly), example sections 51 and 45 of the Land Act15


respectively but such Acts are not comprehensive in themselves, they are supplemented by

other pieces of legislation, example, the Law of Limitation Act17

and the Land Registration

Act.18

1.6 Research Methodology

The study is essentially descriptive and analytical as it hinges on the detailed survey and

examination of Land Acts and other Acts concerning the issues of abandonment and adverse

possession of land.

15

Chapter 113 [R.E 2002] 16

Chapter 114 [R.E 2002] 17

Chapter 89 [R.E 2002] 18

Chapter 334 [R.E 2002]

6

1.6.0 Types of Data collection

The Research has used the Secondary method of collecting date, that is, through visiting the

already published literatures since the Research is done while we are at the University. We

have used Secondary method of collection of data because Primary method of collecting data

involves students being in a field. It has also involved some of the Primary methods of

collecting data, which are practicable example and interview.

1.6.1 Research Tools/Methods/Techniques

In this, we used interviews, which had been conducted to scholars of Law in Tumaini

University and outside Tumaini University, this include students of Law, Lectures in Law and

practitioners of Law where applicable. We decided to use interview because this method is

cheap in terms of money and time.

1.6.2 Sampling

Samples were obtained by Random sampling, that is, without using the scientific method of

getting the sample to be used in the Research. This is to give each scholar of law an equal

chance of being selected as a sample.

The sample size was 15 scholars of law at Tumaini University – Iringa University College and

outside the Tumaini University.

7

1.6.3 Data Analysis and Processing

Here, the data collected has been analyzed and processed scientifically, the data collected has

also been edited to leave the data that are needed and to set out of the data that are not needed.

1.7 Literature review

The Research has visited Land-law books, which discusses the concepts of abandonment and

adverse possession, it has also visited Manuals on Land Law, also Land Acts and non-Land

Acts that provides whether expressly or impliedly on the issues of abandonment and adverse

possession has been visited. Apart from these, Electronic materials and Articles relevant to

abandonment and adverse possession have been used.

Examples of the books that have been used are such as the Law of Property (An Introductory

Survey) (4th

edition)19

. Where as in this book under Chapter 4 there is a title “The rights of

possessors of land, including Adverse possession” the Chapter introduces the concept of

Adverse possession, it says, the doctrine of Adverse possession is based on Statutes of

limitation for recovery of real property. The same Chapter shows five elements of adverse

possession, which includes;

i. Actual

ii. Open

iii. Exclusive

iv. Continuous and peaceable

v. Hostile and under claim of right

19

Boyer, Ralph E., H. Havenkamp and S. Kurtz. Westlan Publishing

8

The Chapter also shows on the innocent improver doctrine where as the doctrine of annexation,

improvements to real estate made by a wrong doer belong to the owner of the real estate.

Another book on the concept adverse possession is Property Law – Cases and Materials (3rd

edition)20

. Part II of this book carries a title “How Property Interests arise and purchasers”.

Under Part II of the book there is a title; “Adverse possession” which is the most concern of

the paper, Part II also shows what the position of adverse possession against registered estates

is.

Part II of the book also shows the requirements for adverse possession, these are:

i. Possession; animus posidendi

ii. The possession must be adverse

iii. Stopping time running

iv. Twelve years

Effects of adverse possession are also provided by Part II of the book, they are grouped as

follows:

i. General principles: Unregistered land. Here there is the case of Tidirborne vs. Weir.21

ii. General principles: Registered land

iii. Before the adverse possession is completed. Here there is the case of Asher Vs.

Whitlock22

20

Smith, Roger J. Published in 2006 21

(1982) LT 735 22

(1865) LR 1 QB 1

9

iv. Adverse possession against tenants. Unregistered land. Here there is the case of

Marylebone Property Co. Ltd. Vs. Fairweather23

v. Adverse possession against tenants. Registered land. Here there is the case of General

London Commercial Estates Ltd. Vs. Kato Kogaku Co. Ltd.24

Apart from those books, there is the book Introduction to Land law25

. Part II of the book

shows on the acquiring interests and binding purchasers. The book gives the

Introduction/Nature and importance of adverse possession. The book also shows the

justifications for adverse possession and there is also an explanation on the assessment of

adverse possession.

There is also the book Land Law (7th

edition)26

in which Part I of it which carries the title

“Let’s Start at the very beginning” whereas under it, in Chapter 2, there is methods of Informal

Acquisition of interests in land, one of which is Adverse possession. In that Chapter, there is a

definition of adverse possession, but also, there is the discussion of adverse possession of

unregistered land. In due discussion of Adverse possession, the book gives elements of adverse

possession as well as cases concerning Adverse possession of unregistered land.

The book introduces the concept of adverse possession of registered land. In discussing this,

the book talks on time, the nature of title acquired, trusts. The book also provides for remedies

available for the true/paper owner against the adverse possessor.

23

(1963) AC 510 24

(1998) All ER 948 25

Smith, Roger J. Published in 2007 26

Chappelle, D. England: Pearson Longman

10

All of the books has not mentioned the concept of abandonment but instead in all the books

there is the concept of adverse possession, this is because, in those countries the concept of

abandonment is not familiar, instead they are acquainted with the concept of adverse

possession.

A Manual that has been used in the Research is Manual on Land law and Conveyancing in

Tanzania of (2008)27

in which in Chapter Ten (10) there is the concept of Abandonment and

this has been discussed together with Chapter Twenty One (21) which is Limitation of actions.

Some Land Acts that has been used are the Land Act28

and the Village Land Act;29

also the

Land Registration Act30

and the Land (Amendment) Act31

where necessary. The non-Land Act

includes the Law of Limitation Act.32

Also for some of the references the Civil Procedure

Code33

and the Judicature and Application of Laws Act34

has been used.

Those are some of the Literatures that have been visited in doing the Research to mention but a

few.

27

Dr. Tenga, W. R and Mr. Sist Mramba. 28

Chapter 113 [R.E 2002] 29

Chapter 114 [R.E 2002] 30

Chapter 334 [R.E 2002] 31

Act No. 2, 2004 32

Chapter 89 [R.E 2002] 33

Chapter 33 [R.E 2002] 34


11

CHAPTER TWO

THE CONCEPTS OF ABANDONMENT, ADVERSE POSSESSION AND THEIR

APPLICATION

2.0 Introduction

Perusal of many Literatures, one will find that the concept of abandonment is not always used;

instead, the concept adverse possession is used. Nevertheless, as it has already been established

in Chapter One that, abandonment and adverse possession are two sides of the same coin, that,

it is when the true/paper owner has abandoned land for a considerable period then adverse

possession will occur subsequent to the possession of the land by the adverse possessor.

Critical look on Land laws, one can witness that, the concept of abandonment of land is highly

used in Tanzania (a Common law country) but in other countries, Common law jurisdictions

and Civil law jurisdictions prefer the term adverse possession. This does not mean that

Tanzania does not use the term adverse possession, in Tanzania, both terms are used together.

2.1 Definition of concepts and their applications

2.1.0 Abandonment

Abandonment was defined in the case of Alimohammed Adamji Vs. Punja Gudka35

by Sir

Barclay Nihill (P) to mean the cesser of occupation without animus revertendi.36

Under

Customary Law, there have been cases that have ruled out that the concept does not exist, and

35

(1953) 20 EACA 78 36

As it has been stated above that Animus revertendi is a Latin phrase which means intention to return

12

those that favour the concept.37

Example; in the case of Kimenanga Vs. Mevongori Mosoni38

the Court ruled on the existence of the concept of abandonment but in the case of Ngutsu

Mwajaira Vs. Safari39

, the assessors said the concept was not in existence, “… the owner of the

land can always claim it back again no matter how long he has been away”.

In the case of Kimenanga (supra) Spry J as he then was delivered the following judgment.

‘This is a difficult case because the evidence of fact is far from clear. As I see, the first

question that has to be decided in which one of the parties was the original owner of the land.

The lower court decided in favour of Silanga Kimenanga, the present appellant, because they

believed the evidence of his witness. They said that Silanga first acquired and then gave it to

Mevongori Mosoni, the present respondent. Before the District Commissioner, however,

Silanga conceded that Mevongori had cleared the land in dispute. It is not suggested that the

land was ever granted to either party by the Government or by any traditional authority. The

assessors who sat with the District Commissioner and those who sat with him are unanimous in

saying that the local customary law was that land belonged to the first person who actually

cleared it. It would appear therefore that Silanga could not have given the land to Mevongori

since he himself had no title to it. It may well be that there was some discussion between the

two and that Silanga stood aside in favour of Mevongori but it would seem clear that

Mevongori as the first person to clear the land was the first person entitled to it.

37

Dr. Tenga, W. R and Mr. Sist Mramba. Manual on Land law and Conveyancing in Tanzania. (2008) p. 149 38

1962, James R.W and Fimbo G.M pp. 299 - 300 39

Ibid pp. 568 - 569

13

The second question is whether Mevongori lost title to the land by abandonment. According to

his own statement Mevongori cleared the land personally; first used it for grazing and

subsequently for cultivation. Then at some time, he moved away in search of fresh grazing. It

is not clear from the evidence when this was but it appears to have been in or about 1949. For

the next ten years the land at least part of it was occupied by tenants of Mvengori. This appears

from the statement of Silanga. It is clear therefore that Mevongori did not intend to abandon

the shamba at the time when he left it and that he was asserting a right over it up to 1959 when

the present dispute arose. Tenants of both parties now occupy parts of the land. This aspect of

the case does not appear to have been considered in the lower courts. The assessors who sat

with me expressed the opinion that had Mevongori trees on the land and looked after them, he

would have retained ownership, but as he apparently only planted annual crops he lost his title

to the land when he went away. I accept this as a general principle but I do not think it governs

this case because it does not appear that there ever was complete abandonment of the land.

The assessors who sat with him expressed the opinion that Mevongori had no right to permit

the use of the land by others. He find this difficult to accept because both claimants assert that

they have put tenants on the land and the right in principle of the true owner to do so does not

appear to have been challenged at any stage in the proceedings. In short, my opinion is that

Mevongori acquired title to the land in question when he cleared it and that he has never

completely abandoned his rights. I accordingly uphold the decision of the District

Commissioner and dismiss this appeal.’

14

In the case of Ngutsu (supra), the father of the respondent, Omari called Safari gave land to the

fathers of the applicant and respondent respectively. The father of the applicant was not of the

Nduruma tribe but the applicant has married into that tribe and has lived amongst them all his

life. Omari the respondent, subsequently left the land which he had inherited and which is the

land in dispute and went away to Tanganyika. The evidence show he was away for about 12

years, and this would account for the fact that he did not seem to know the boundaries. Again

the evidence shows that whilst Omari was away the brother of the applicant with his wife

entered into possession of Omari’s land and this case was brought by Omari to recover it from

the applicant’s sister in law.

The Court framed some issues to decide upon in the case, first whether Omari having left his

land for so many years was entitled to come back and claim it and second whether the

applicant or his sister in law can retain Omari’s land because of their undisputed possession of

it for this period.

The Division Court held that Omari was entitled to claim back the land which had belonged to

him even though he had been away for some years. They further held that neither the applicant

nor his sister in law could remain in occupation of the land which Omari claimed. That Court

further held that no person who was not of the tribe could own land no matter how long they

had lived there. The District Officer accepted the findings of the Divisional Court but thought

it would be contrary to natural justice in this case if the applicant or his sister in law could not

remain upon the land which they had occupied for so long.

15

The case was taken to appeal, the court stated, “We have consulted the opinion of the assessors

and we have been advised that the owner of the land can always claim it back again no matter

how long he has been away. In this respect the custom of the tribes differs from that in North

Nyanza where we held in Yoseph Tindibale Vs. Stephano Munyangani40

that a man who leaves

his land with no one to protect it is deemed to have abandoned it and therefore loses his title to

it. In the instant case, therefore according to the advice of the assessors which we accept the

respondent is entitled to re-assume possession of the land when he returns to it.”

In addressing the second issue, that is, whether the applicant or his sister in law can resist the

respondent’s claim because of their undisturbed occupation of the land, the Court said it had no

evidence with regard to the actual time that they have occupied it except that it was during

Omari’s absence, that is, during some part of the 12 years during which he was away. The

court stated, “We have been advised by the assessors that a person can only continue to

cultivate land belonging to another owner if there has been an agreement for him to cultivate it

and second that the occupier continues to be of good behaviour. We have not reason to think

that either of them ever made an agreement with Omari that they could cultivate it. It follows

therefore that Omari is entitled to repossess himself of the land which he left some years ago,

and the applicant Ngutsu has to vacate that part of the land which he inherited from his father.

He is of course entitled to retain that so long as he is of good behaviour and his son after him

but neither he nor his sister in law nor his brother is entitled to the land which Omari inherited

from his father and which now belongs to him.”

40

(1955) C.R.O LR Vol III p. 9

16

The court directed a line be drawn showing the original boundaries between the two plots

owned by the fathers of the parties respectively so that each shall keep to his own land unless

they decide to enter into an agreement otherwise. The application was with costs.

By considering the cases above, it can be said that, Under Customary law, the concept of

abandonment has been one of mixed views. That, others say the concept of abandonment exists

and others say the concept does not exist, it can also be said, existence or non – existence of

the concept depends on the customs of different societies. This is because section 11 (1) (a) of

the Judicature and Application of Laws Act41

provides inter alia that, Customary law shall be

applicable to, and courts shall exercise jurisdiction in accordance therewith in matters of a civil

nature between members of a community in which rules of customary law relevant to the

matter are established and accepted, or between a member of one community and a member of

another community if the rules of customary law of both communities make similar provision

for the same matter.

2.1.0.1 Elements of Abandonment

As it has already been explained in Chapter One that, abandonment involves two (2) distinct

elements; mental element and physical element. Mental consists of the intention to abandon all

rights in the land while physical consists of the external fact of leaving the land.42

Both

elements should be there to construe abandonment, one can leave the land but she/he could be

41

Chapter 358 [R.E 2002] 42

Dr. Tenga, W. R and Mr. Sist Mramba. Manual on Land law and Conveyancing in Tanzania. (2008) p. 154

17

having an intention to return, example, by frequently visiting the area / plot of land or by

placing a care-taker of the land.

Where a person has remained out of possession of land for such an unreasonable length of time

that raises a presumption of abandonment, the onus is on him to establish an animus revertendi

(intention to return); this is a Common law Principle, that, whoever asserts something must

prove, that, the burden of proving that thing asserted by him lies on him.

It has to be noted that, abandonment does not pass title but destroy title, that is, the original

grantor’s title can be revived upon fulfillment of some conditions. However, in Rashid bin Ali

Vs. Bakari bin Kayanda43

it was held that, occupation and cultivation of land gives the

occupier rights tantamount to those of an owner.

2.1.0.2 Land Acts on Abandonment

With the enactment of the Land Acts, the position of abandonment has been settled and it is

now more certain.

2.1.0.2.1 Position of the Land Act

Under the Land Act,44

land held for a right of occupancy shall be taken to have been

abandoned where one or more of the following factors appear, that;

43

(1941) Governor’s Appeal no. 31 44


18

i. the occupier owes any rent, taxes or dues in respect of the land and has continued to

owe such rent, taxes or dues or any portion of them for not less than five years from the

date on which any rent, taxes or dues or any portion thereof first fell to be paid;

ii. the occupier has left the country without making any arrangement for any person to be

responsible for the land and for ensuring that the conditions subject to which the right

of occupancy was granted are complied with and that occupier has not given any

appropriate notification to the Commissioner;

iii. any building on the land has failed into a state of such disrepair that it has become a

danger to the health and safety of any person occupying that building for any lawful

purpose or a neighbour to the occupier;

iv. persons with no apparent lawful title so to do are occupying or using the land or any

buildings on the land and one or more of those persons or a person from a community

which contains one or more such persons have so occupied or used the land or any

building on the land for a period of not less than two years immediately preceding the

date on which in accordance with this section, the Commissioner publishes a notice of

abandonment in the Gazette;

v. by reason of the neglect of the land, the land is–

19

a. no longer capable, without significant expenditure and remedial work, of being

used for productive purposes; or

b. suffering serious environmental damage.

These factors are found under section 51 (1) of the Land Act.45

Under section 51 (2) of the

same Act, where it appears to the Commissioner46

that any land has been abandoned, he is

required to publish in the Gazette and in a newspaper circulating in the area where the land is

situate a notice of abandonment which shall state the location of the land; the boundaries of the

land; set out briefly the grounds on which the Commissioner intends to rely in determining that

the land has been abandoned; state the time, being not less than sixty days from the date of the

publication of the notice within which any person claiming to have an interest in the land may

show cause why the land should not be declared to be abandoned.

Where the Commissioner consider that a piece of land has been abandoned despite

representations made by a person claiming to have an interest in the land that the land should

not be declared to be abandoned, he shall issue in the prescribed form, a declaration of

abandonment, and shall send a copy of that declaration to the occupier of the land at his last

known place of abode or last known address, this is found under section 51 (3) of the Land

Act.47

However, according to section 51 (5) of the same Act, where the Commissioner is

satisfied with the representations made by a person claiming to have an interest in the land that

the land has not been abandoned, he shall take no further action.

45

Chapter 113 [R.E 2002] 46

In this context, Commissioner means the Commissioner for Lands appointed under section 9 of the Land Act,

Chapter 113 [R.E 2002]. Herein below he will be referred shortly as the Commissioner. 47

Op ct fn. No. 43

20

2.1.0.2.2 Position of the Village Land Act

Under the Village Land Act,48

land held for a customary right of occupancy shall be taken to

be abandoned where one or more of the following factors appear, that;

i. The occupier has not occupied or used the land for any purpose for which land may

lawfully be occupied and used, including allowing land to lie fallow, in the village for

not less than five years;

ii. the occupier, other than a villager whose principal means of livelihood is agricultural or

pastoral, owes any rent, taxes or dues on or in respect of the land and has continued to

owe that rent, taxes or dues or any portion of it for not less than two years from the date

on which that rent, taxes or dues or any portion of it first fell to be paid;

iii. the occupier has left the country without making any arrangement for any person to be

responsible for the land and for ensuring that the conditions subject to which the

customary right of occupancy was granted are complied with and has not given any

appropriate notification to the village council.

To promote justice, the Village Land Act49

has specifically provided that, in determining

whether land has been abandoned in terms of items i and ii above, regard shall be to;

48

Chapter 114 [R.E 2002] 49

Ibid

21

a. the means of the occupier of the land, and where the occupier is an individual, the age

and physical condition of the occupier;

b. the weather conditions in the area during the preceding three years;

c. any customary practices, particularly practices amongst pastoralists which may have

contributed to the non-use of the land during the preceding three years;

d. any advice on the matter sought by the village council or given to it by the

Commissioner.

Such exceptions are found under section 45 (2) of the Village Land Act,50

in addition to that,

section 45 (3) of the same Act provide that, a land shall not be taken to be abandoned where a

spouse or dependants of the occupier are occupying and using that land, notwithstanding that

the occupier–

a. is not and has not for not less than three years occupied or used that land; or

b. owes any rent, taxes, fees or dues on that land; or

c. has not specifically appointed a spouse or a dependant to manage the land in his

absence.

Where a Village Council considers that any village land held for a customary right of

occupancy has been abandoned, it shall publish a notice in the prescribed form at the offices of

50


22

the Village Council and affix a copy of the notice in a prominent place on that land, this is per

section 45 (4) of the Village Land Act.51

2.1.1 Adverse possession

Adverse possession refers to the peaceful occupation of land without a formal legal

agreement.52

In Tanzanian land laws, if a person moves into a land, occupies it and develops it

for 12 years or more with no interference whatsoever from the true owner of that plot, then that

person who has occupied it for the 12 years or more acquires adverse possession. The person

who owns land under adverse possession has the same legal rights over the land to the person

who is granted a right of occupancy over the land.53

The Adverse possessor who has claimed a

title to a registrable estate is allowed by the Land Registration Act54

under section 16 to make

an application for registration, but, registration will be done is the application is the first one,

that, no one has applied. Reference can also be made to section 72 (1) of the Land Registration

Act.55

Adverse possession is also known as ‘squatters’ rights.’56

In Corea Vs. Appuhamy,57

adverse possession was referred to as the possession which is

inconsistent with the title of the true owner. If the true owner stands and sees another person

dealing with his property in a manner inconsistent with his right and makes no objection while

51

Chapter 114 [R.E 2002] 52

Paul Van Der Molen. The Future Cadastres – Cadastres after 2014. Retrieved from

www.eurocadastre.orgpdfvandermolen2.pdf. Accessed on 1st of August 2011.

53 www.fbattorneys.comnewsDec27_10.html. Accessed on 1

st of August 2011.

54 Chapter 334 [R.E 2002]

55 Ibid

56 UN – HABITAT. Handbook on Best Practices Security of Tenure and Access to Land: Implementation of the

Habitat Agenda. Nairobi. p. 13 57

(1912) AC 230

23

the act is in progress, he cannot afterwards complain, that is the proper sense of the word

acquiescence, this was said in Duke of Leeds Vs. Amherst.58

In Asher Vs. Whitlock59

, the plaintiff had been in adverse possession though the time limitation

period had not expired, the question was whether the plaintiff can sue another person (not the

true owner) who was in possession. Cockburn CJ said that, on simple ground that possession is

good title against all but the true owner, so the plaintiff is entitled to succeed. This shows, the

person who owns land under adverse possession has the same legal rights over the land to the

person who is granted a right of occupancy over the land

In Tanzania, when a person want to institute a suit for recovery of land, he / she has to do so

within twelve (12) years from when the cause of action arises, example, paragraph 22 of Part

One of the Schedule to the Law of Limitation Act60

provides that, suit to recover land shall be

limited to twelve (12) years from the date the cause of action rose.

2.1.1.1 Conditions an Adverse possessor must fulfill in adverse possession

Such occupation of land by an adverse possessor should be peaceably, that is, without

interruption by the true owner and should be not by force on the side of the adverse possessor.

In Mulcahy Vs. Curramore Property Ltd61

the Court said inter alia that, adverse possessor

must possess the land openly and peacefully. In this regard, section 57 (1) (a) of the Village

58

41 ER 886 at 888 59

(1865) LR 1 QB 1 60

Chapter 89 [R.E 2002] 61

(1974) Vol. 2 NS WLR 464

24

Land Act62

provides for a village adjudication committee or an adjudication officer to

determine a person who has occupied a village land under customary law in peaceable, open

and uninterrupted for not less than twelve years to be entitled to a customary right of

occupancy.

The other condition is, an adverse possessor should not conceal some facts which are in

relation to the land. In Rain Vs. Buxton,63

the adverse possessor had occupied the underground

cellar for the period of sixty (60) years, and the door to that cellar was always open / visible

from the basement and the area was used without any secret. After sixty (60) years, the true

owner came and claims his land saying that the adverse possessor has committed fraud. The

argument by the true owner was rejected as the door was visible and the adverse possessor

possessed without secrecy.

Another condition need to be fulfilled by the adverse possessor is, possession of the land

should not be as a result of the permission by the true owner, so, if the owner allows a person

to occupy or use his land for even unlimited period of time till he take possession of his land,

that does not amount to adverse possession.

In Hyde Vs. Pearce64

the plaintiff entered land following a contract to purchase it. The sale

stalled because of a dispute, yet the plaintiff remained in the piece of land for sixteen (16)

years after a request for him to leave. Templeman, LJ said that, the plaintiff must show some

62

Chapter 114 [R.E 2002] 63

(1880) Vol. XI Ch. D. 5 64

[1982] 1 WLR 560

25

further quality, namely, adverse possession, the plaintiff was allowed into possession as a

purchaser pending completion of the sale, if he had been a mere trespasser, no doubt the

vendor would have brought proceedings, therefore, the court ruled that, there was no adverse

possession as the plaintiff was allowed to enter into the land.

Finally yet importantly, possession of the land must be single and exclusive, that, there should

be no sharing of the same piece of land between the true owner and the adverse possessor. The

true owner must have either been disposed or discontinued in using the land. In the earlier

cases of Leigh Vs. Jack65

and Williams Brothers Ltd. Vs. Referty,66

it was held inter alia that,

where the paper – title holder retains plans for the land and where he has done nothing to

render such plans impossible, no adverse possession of the land was possible.

However, that position was overruled in the subsequent case of Buckinghamshire County

Council Vs. Moran67

that, even if the paper – title holder does still have plans for the disputed

land, adverse possession will be possible, provided that the squatter satisfies all the other

requirements of adverse possession. However, this position was also subsequently overruled in

Leigh Vs. Jack68

and it was said that, any owner may resist claims of adverse possession

merely by claiming to have plans to develop the land at some time in future. In 1997, Moran’s

approach (supra) was confirmed, thus overruling Leigh proposition (supra) in The Mayor and

Burgesses of London Borough of Hounslow Vs. Minchinton.69

65

(1879) 5 Ex D 264 66

[1957] 3 All ER 593 67

[1989] 3 WLR 152 68

supra 69

(1997) 74 P & CR 221

26

To us, we think the condition that there should not be sharing of the land or retention of the

land by the true owner and adverse possessor should stand. We say this because, whenever

there is agreement between the two, it shows there is permission by the true owner to the

squatter to use true owner’s land.

2.1.1.2 Adverse possession of Public land

In Tanzania, the notion of adverse possession does not apply in public land. Example, section

38 of the Law of Limitation Act70

limits acquisition by adverse possession of an interest /

estate in any public land and interest / estate acquired on public land. Therefore, long-term

unchallenged occupation lasting 12 years gives legal rights on private land but not on public

land, where adverse possession principles do not apply.71

Thus, no suit or other proceeding by or on behalf of the President or the Government of the

United Republic for the recovery of land shall be dismissed on the ground that the period of

limitation has expired.

2.1.1.3 Rationale for Adverse possession

There are some of the justifications for the evolving of the concept of Adverse possession,

these are as follows;

70

Chapter 89 [R.E 2002] 71

Kironde, Lusugga J.M. Improving Land Sector Governance in Africa: The Case of Tanzania. Paper prepared

for the Workshop on “Land Governance in support of the MDGs: Responding to New Challenges” Washington

DC March 9-10 2009.

27

i. There should be an end to litigation. That, if there would be no adverse possession,

every grantor of land would be required to trace his root of title back to the garden

of Eden and every land owner would live under the perpetual shadow of

apprehended re-possession at the command of some earlier and more meritorious

claimants of title.72

Under this there is a Latin Maxim, interest republicae ut sit finis

litium which literally means, there should be and end of law suit.

ii. Ensuring that land always remains marketable, in a sense that, land is a precious

commodity, so it should always be in commerce.73

In that regard, in 2001. The

government of Venezuela gave peasants the right to expropriate land that was not

being used productively in order to redistribute wealth.74

iii. Title for unregistered land always remain to possession, so, possession of land for a

long time shows title.75

Title basing in form is otherwise known as seisin.76

iv. Also the law on adverse possession is used to prevent injustice / hardships especially

when a person, a squatter has entered a land mistakenly and innocently believing

that, that land is not possessed by anyone else, that it is not used for a long time.

72

Goo, S.H. Sourcebook on Land Law. Quendish (1994). p. 171 73

Smith, Roger J. Property Law – Cases and Materials (3rd

edition). 2006. p. 66 74

Ibid. p. 64 75

Ibid 76

Chappelle, Diane. Land Law (7th

ed.). England: Pearson Education Limited. (2006). p. 63

28

v. Defendants should be protected from stale claims and that, claimants should not sleep

on their rights.77

However, it is possible for a squatter to acquire land by adverse

possession without the owner realizing it. It may be because the owner has more

land than he or she can realistically possess. Example, a local authority cannot keep

an eye on every single piece of land it owns.

vi. To encourage plaintiffs to institute proceedings without reasonable delay and thus

enable actions to be tried when the recollection of the witness is still clear.78

vii. To enable a person to feel more confident, after the lapse of a given period of time, that,

an incident which might have given rise to a claim against him is finally closed.79

77


ed.). 2006. p. 66 78


ed.). England: Pearson Education Limited. (2006). p. 77 79

Ibid

29

CHAPTER THREE

CRITICAL ANALYSIS OF THE ROLE OF LAND ACTS AND NON-LAND ACTS IN

MATTERS OF ABANDONMENT AND ADVERSE POSSESSION

3.0 Introduction

As it has been seen in the previous Chapter, that, the Land Act,80

specifically under section 51

and the Village Land Act,81

under section 45 provides for abandonment of land held under a

right of occupancy and abandonment of land held for a customary right of occupancy

respectively. Furthermore, the Land Registration Act82

has been seen and its condition when an

adverse possessor wants to register a land acquired through adverse possession.

Apart from the Land Act,83

the Village Land Act84

and the Land Registration Act85

the Law of

Limitation Act86

also provides for limitation of actions relating to land. In this Chapter, the role

of the mentioned Acts will be addressed on issues of abandonment and adverse possession.

3.1 Study Findings and Analysis

This study focuses on the following areas;

80

Chapter 113 [R.E 2002] 81

Chapter 114 [R.E 2002] 82

Chapter 334 [R.E 2002] 83

Op ct fn. No. 80 84

Op ct fn. No. 81 85

Op ct fn. No. 82 86


30

3.1.0 The question of time

The time to be taken that one has abandoned the land, which is known is twelve (12) years is

not specifically provided under the Land Act,87

it is an issue that presents some controversies

to scholars of law. Example, section 51 of the Land Act88

only provide time limitation of five

(5) years for a land to be considered abandoned when the occupier owes any rent, taxes or dues

in respect of the land concerned for such a time.

Also under the same section of the same Act, there is a provision for a period of limitation of

two (2) years for a land to be considered abandoned for persons with no apparent lawful title so

to do have occupied or used the land or any buildings on the land immediately preceding the

date on which in accordance with section 51, the Commissioner publishes a notice of

abandonment in the Gazette.

Thus, when one look critically the provision of section 51 of the Land Act89

, the period which

is known that the land has been abandoned, that is twelve (12) years has not been provided. At

least the Village Land Act,90

example section 45 (1) (a) has tried to show the time by which the

occupier will be taken to have abandoned the land, that is, five years.

87

Chapter 113 [R.E 2002] 88

Ibid 89

Ibid 90


31

Nevertheless, the provision of section 45 (1) (a) of the Village Land Act91

has brought some

controversies, this is because paragraph 22 of Part One of the Schedule to the Law of

Limitation Act92

provide for one to succeed for a suit for recovery of land, he / she should

institute a suit within twelve (12) years from the date the cause of action accrued. The question

comes, does such provision of the Law of Limitation Act applies even to village land.

Due to the foregoing reasons, one can say that, the question of time controversies was there

even before the coming of the Land Acts. Courts circumvented from saying what is really the

exact time for a land to be considered abandoned, example, in Nyagobro Ginonge Vs. Chagha

Gasaya,93

the Court said, “… It would be neither good law nor in accordance with public

policy to allow a plot holder to depart from the land for such a number of years with the result

that the land may lie fallow or revert to bush.”

Under the question of time also, the known period of time, twelve (12) years for a land to be

considered abandoned and to bar the true owner from claiming a piece of land to an adverse

possessor seem to be a lot of time compared to other countries in the world while as it has been

stated above, land should always remains marketable, in a sense that, land is a precious

commodity. In other countries, example Brazil, when a person has occupied a piece of land for

only more than five years without legal intervention of the owner, he / she can be granted

ownership of a piece of land not exceeding 250 square metres.94

91

Chapter 114 [R.E 200] 92

Chapter 89 [R.E 2002] 93

(PC) Civ. App. 151-D-67; 19/9/68 94

UN HABITAT. Shared Tenure Options for Women: A Global Overview. Nairobi (2005). p. 84

32

3.1.1 The question of adverse possession in public land

Tanzanian Land laws specifically prohibit adverse possession to the public land, that, one

cannot occupy land and bar the government to institute a claim to recover its land by merely

adverse possession. Section 38 of the Law of Limitation Act95

as explained in the previous

Chapter limits acquisition by adverse possession of an interest / estate in any public land and

interest / estate acquired on public land. In other countries, example, Brazil, adverse possession

can be there even in public land.96

3.1.2 The question of adverse possession in registered land and in unregistered land

3.1.2.1 In Registered land

The idea of statutory transfer of the estate is accepted for registered land. Its principle

significance is where there is adverse possession against a tenant. This principle is summarized

by the law of commission in the following words, “when a squatter’s application for

registration is successful for any of the reasons as explained, the Registrar will register him /

her as the new Proprietor of the estate against which he or she adversely possessed. The

squatter will therefore be the successor in title to the previous registered proprietor.97

That is

the position in England, and it is clearly put in their Land Registration Act, 2002, under

paragraph 1, Schedule 6 to that Act.

95

Chapter 89 [R.E 2002] 96

UN – HABITAT. Handbook on Best Practices Security of Tenure and Access to Land: Implementation of the

Habitat Agenda. Nairobi. p. 13 97


ed.). 2006. p. 90

33

In Tanzania, as in England, the position is more or less the same, in the Land Registration

Act98

under section 72 (1) provide that, “Any person who claims that he has acquired any

estate in any registered land by adverse possession or by reason of any law of prescription may

apply to the Registrar in the prescribed manner for registration of his estate or interest.” And

according to section 72 (5) of the Land Registration Act99

when the Registrar is satisfied as to

the title of the applicant, he may allow the application and register his estate, but such estate

shall be subject to any estate or interests which have not been extinguished by such adverse

possession.

In England, the law, that is, their Limitation Act, 1980 limit a true / paper owner to claim his

title in registered land within ten (10) years from the date the cause of action rose.100

In

Tanzania on the other hand, there is no distinction as to limitation of cause of action

concerning registered land and in unregistered land, all of them uses twelve (12) years as the

period of limitation.

3.1.2.2 In Unregistered land

The squatter remains bound by other claims to the land, such as easements and restrictive

covenants. The major dispute has been as to whether there is a statutory transfer of title to the

squatter, this is particularly important where there has been adverse possession against

tenant.101

In Tichborne Vs. Weir102

Bowen LJ said, the most that can be said is that, he acquired

98

Chapter 334 [R.E 2002] 99

Ibid 100


edition). 2006. p. 65 101

Ibid. p. 90 102

(1892)67 LT 735

34

an absolute title to the land as against everybody but the landlord. The landlord has his rights

against the squatter. These were the reasons of Bowen LJ on the question as to whether the

squatter can step into the shoes of the lessee so as to be liable on the lease-hold covenants.

The question as to apply to the Registrar of Titles as appointed by section 4 of the Land

Registration Act103

are the same like that of registered land. Example, section 16 of the Land

Registration Act104

allows an adverse possessor to make an application for registration, but,

registration will be done is the application is the first one, that, no one has applied.

In England, the law, that is, their Limitation Act, 1980 under section 15 (1) limit a true / paper

owner to claim his title in registered land within twelve (12) years from the date the cause of

action rose. The position of England in unregistered land is the same as that of Tanzania to all

kind of land; registered and unregistered land. Reference can be made to paragraph 22 of Part

One of the Schedule to the Law of Limitation Act.105

3.1.3 Awareness of the public on issues of abandonment and adverse possession

Generally people seem to lack knowledge on issues of abandonment and adverse possession in

land, some of them are even scholars of law. This was realized during the conduct of our

research as some of the members of the public and scholars of law were interviewed.

103

Chapter 334 [R.E 2002] 104

Ibid 105


35

Apart from such issues, the general public seem to lack knowledge on Land Laws, in a Paper

prepared for the Workshop on “Land Governance in support of the MDGs: Responding to New

Challenges” Washington DC March 9-10 2009, Improving Land Sector Governance in Africa:

The Case of Tanzania, Kironde, Lusugga J.M shows that, out of 200 people, only 3.5% know

very well the Land Policy, 3% know very well the Land Act and again 3% know very well the

Land Acquisition Act, some has partly knowledge on such matters and many do not know at

all such matters.

3.2 Testing of hypothesis

Having examined the Land Act,106

Village Land Act,107

the Land Registration Act108

and the

Law of Limitation Act109

which addresses the issues of abandonment and adverse possession, it

is important to refer back to hypothesis we formulated to see if they were correct.

The hypothesis of this study was based on the postulate that the Land Acts discusses the

concept of abandonment and adverse possession (though implicitly), but such Acts are not

comprehensive in themselves, they are supplemented by other pieces of legislation, example,

the Law of Limitation Act110

and the Land Registration Act.111

This has been found to be

correct as far as this Chapter depicts. The Land Acts has not managed to stand alone.

106

Chapter 113 [R.E 2002] 107

Chapter 114 [R.E 2002] 108

Chapter 334 [R.E 2002] 109

Chapter 89 [R.E 2002] 110

Ibid 111

Op ct fn. No. 108

36

Apart from being supplemented by other pieces of legislation, they are found being not

comprehensive as there are issues which they ought to provide but they are not found in the

Act, example of which is the issue of limitation of time.

37

CHAPTER FOUR

RECOMMENDATIONS AND CONCLUSION

4.0 Introduction

The Research could be of no use if it could be done without any recommendations to what the

study find being some of the deficiencies of abandonment and adverse possession laws in

Tanzania. In this juncture, recommendations will be made to scholars of law, to the Parliament,

to the government, to the judiciary and to public at large.

4.1 Recommendations

4.1.0 To scholars of law

Scholars of law in this context include Lecturers, Students and other Academicians in law. To

them, when reading any law materials, they should do that critically, because one can think

there is no any problem in a certain material or issue but finding out later in practice that there

are some deficiencies.

In addition, we urge that, whenever they get a chance, they should do a research in issues of

abandonment and adverse possession to correct us where we went wrong, to appraise us where

we have made a contribution and to continue at where we ended so as to fulfill the goal of the

calling.

38

Apart from that, they should make some contributions to the Parliament, to government and to

the public at large on the deficiencies of the laws concerning abandonment of land and adverse

possession. Nevertheless, such a contribution should not only end there, also, they should make

contribution on legal matters at large.

4.1.1 To the Parliament

To the Parliament in specific, since one of its main tasks given by the Constitution of the

United Republic of Tanzania112

under Article 64 (1) is to make laws and amend them thereto, it

should amend such Land Acts that as stated they are not comprehensive in matters of

abandonment and adverse possession. Example, the issue of time.

In such amendments, provisions should be more certain so as to avoid conflicts of laws,

example, between the Village Land Act,113

example section 45 which provide for a period of

time for a land to be considered abandoned is five (5) years while paragraph 22 of Part One of

the Schedule to the Law of Limitation Act114

provide for a period of limitation to action for

instituting a claim for recovery of land.

In addition, with regard to amendment that should be made to by the Parliament, we think

adverse possession should also be allowed concerning public land. Since law is general, that, it

covers for natural persons and artificial persons, also public land should be subject to adverse

possession so that the land remains marketable because it is a precious commodity.

112

Chapter 2 [R.E 2002] 113

Chapter 114 [R.E 2002] 114


39

4.1.2 To the Government

Since this is the key player in the running of the state, it should provide education to the public

on matters relating to abandonment of land and adverse possession because as it has been seen

in Chapter Three, the public seem to lack the knowledge in these matters. Nevertheless, the

government should not only provide education to the public on matters relating to

abandonment of land and adverse possession only but also the all issues concerning law.

4.1.3 To the Judiciary

The courts as custodian of justice should continue to be in the frontline in ensuring that they

provide justice that conforms with not only what the law stipulates in issues of abandonment of

land and adverse possession, but also the Judges and District Land and Housing Tribunal’s

(DLHT) Chairpersons should use their wisdom to provide justice. Example, section 95 of the

Civil Procedure Code115

allows the court to make such orders as may be necessary for the ends

of justice or to prevent abuse of the process of the court without any limit.

They should not only rely on what the law postulates because of the deficiencies proved by the

laws governing matters of abandonment and adverse possession. This is also because as it is

known; Judges (including Magistrates and other players in justice) do really make laws.

115


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4.1.4 To the Public

As already explained above that the government should supply legal education to the public,

but the public as well should not wait for the government to supply them with that education

because there is always some competing priorities in the government, it cannot fulfill all things

in a single day, thus, the public should make sure it find such education for the general welfare.

4.2 Conclusion

The Research which has been done has presented some issues on abandonment and adverse

possession. In Tanzania as it has been observed, there are pieces of legislation which

specifically provide for issues of abandonment and adverse possession, these are the Land

Act116

and the Village Land Act.117

These Acts has been found having some deficiencies, thus,

they are supplemented by other Acts, example, the Law of Limitation Act118

and the Land

Registration Act.119

The Research has also recommended to the scholars of law which includes students in law,

academicians in law and lecturers in law. Apart from such scholars of law, the Research has

recommended to the Parliament to amend laws concerning issues of abandonment and adverse

possession because they have proved to be defective. The government has also been advised to

provide education to the public, because the public in general is ignorant on issues of

116

Chapter 113 [R.E 2002] 117

Chapter 114 [R.E 2002] 118

Chapter 89 [R.E 2002] 119


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abandonment of land and adverse possession but also in legal matters at large, but caution has

been provided to the public that it should not wait to the government to supply it with such

education it should seek it. The Judiciary is also recommended to act judiciously and decide on

cases brought to it by using Statutes providing for issues of abandonment and adverse

possession, but, it should not only rely in such pieces of legislation because they have proved

to be with some deficiencies, sometimes it should just use its wisdom.

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BIBLIOGRAPHY

BOOKS:

Boyer, Ralph E., H. Havenkamp and S. Kurtz. The Law of Property (An Introductory Survey)

(4th

edition). Westlaw Publishing Co. Ltd.


ed.). England: Pearson Education Limited. (2006).

Goo, S.H. Sourcebook on Land Law. Quendish Publications Ltd. (1994).

Smith, Roger J. Introduction to Land law. Published in 2007


edition) Published in 2006

UN – HABITAT. Handbook on Best Practices Security of Tenure and Access to Land:

Implementation of the Habitat Agenda. Nairobi.

UN HABITAT. Shared Tenure Options for Women: A Global Overview. Nairobi (2005).

MANUALS:

Dr. Tenga, W. R and Mr. Sist Mramba. Manual on Land law and Conveyancing in Tanzania.

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(2008)

James R.W and Fimbo G.M. Essays in Land Law. (1962).

ARTICLES:

Kironde, Lusugga J.M. Improving Land Sector Governance in Africa: The Case of Tanzania.

Paper prepared for the Workshop on “Land Governance in support of the MDGs:

Responding to New Challenges” Washington DC March 9-10 2009.

Paul Van Der Molen. The Future Cadastres – Cadastres after 2014. Retrieved from

www.eurocadastre.orgpdfvandermolen2.pdf.

ELECTRONIC SOURCES:

www.fbattorneys.comnewsDec27_10.html. Accessed in 1st of August 2011.

Abandonment and Adverse Possession : Assessing the Role of Land Acts

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