Hostname: page-component-586b7cd67f-rdxmf Total loading time: 0 Render date: 2024-11-30T16:14:48.088Z Has data issue: false hasContentIssue false
  • English
  • Français

Discriminatory Restrictions on Private Dispositions of Land in Tanganyika: A Second Look

Published online by Cambridge University Press:  28 July 2009

G. F. Akilagpa Sawyerr
Get access Rights & Permissions [Opens in a new window]

Extract

“A disposition of land belonging to a native in favour of a non-native or conferring on a non-native any rights over the land of a native shall not be operative unless it is in writing and unless and until it is approved by the Minister.” [Land (Law of Property and Conveyancing) Ordinance, s. 11(i).]

Type
Research Article
Information
Journal of African Law , Volume 13 , Issue 1 , Spring 1969 , pp. 2 - 27
Copyright
Copyright © School of Oriental and African Studies 1969

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

2 “Because the economy of Tanzania defends and will continue to depend on agriculture and animal husbandry, Tanzanians can live well without depending on help from outside if they use their land properly. Land is the basis of human life and all Tanzanians should use it as a valuable investment for future development. Because the land belongs to the Nation, the Government has to see to it that it is used for the benefit of the whole nation and not for the benefit of one individual or just a few people.” The Arusha Declaration, 1967, 17.

3 Cap. 114, Tanganyika Revised Laws (1955), Supplement 1964. (Unless otherwise stated Tanganyika statutes will be referred to by their chapter numbers in the 1955 Revision of Laws and the year of Supplement where relevant.)

page 3 note 1 The National Executive Committee of the Tanganyika African National Union (T.A.N.U.) meeting in Arusha from 26 to the 29 January, 1967, set out in definitive form the country's policy of socialism and self-reliance. This statement, known as the Arusha Declaration, was published (together with two appendices) under that title by the Government Printer, Dar-es-Salaam, in 1967.

page 3 note 2 The historical material in the discussion under this head is gathered mainly from the following books, which will be specifically referred to again only in rare cases: Chidzero, Tanganyika and International Trusteeship, 1961; Hailey, An African Survey, 1956, pp. 726 et seq., , Harlow, , Chilver and , Smith (Eds.) History of East Africa, 1965, Vol. II;Google Scholar and , Taylor, The Political Development of Tanganyika, 1963.Google Scholar

page 3 note 3 See Laws of Tanganyika, 1928 Ed., Vol. III, 1.

page 3 note 4 See Tanganyika Revised Laws, Applied Laws, cap. 1, 4.

page 3 note 5 As a result of these alienations to settlers and the rapid increase in population, the pressure on the land, especially around Arusha, Moshi, Tanga and Mwanza, has been so acute that the Government has on occasion had to acquire land compulsorily from settlers for reallocation to land-hungry Africans.

page 3 note 6 No. 3 of 1923, now Tanganyika Revised Laws, cap. 113, Supplement 1964.

page 3 note 7 No. 2 of 1923, now cap. 114, Supplement 1958.

page 4 note 1 For fuller discussions of the development and application of British land policy in Tanganyika, see the works cited in p. 3, n. 2, supra, in particular, Taylor, op. cit., pp. 55–62 112–123 and 210–211.

page 4 note 2 Government Circular No. 4, 23 April, para. 4.

page 4 note 3 Proposals of the Tanganyika Government for Land Tenure Reform, Government Paper No. 2, 1962, para. 40.

page 4 note 4 Ministry of Lands, Settlement and Water Development, Annual Report of Land Division, 1964.

page 4 note 5 British Mandate for East Africa, Art. 6; Trusteeship Agreement for the Territory of Tanganyika, Art. 8 (for references see p. 3, nn, 3 and 4, supra).

page 5 note 1 Oldaker, “Tribal Customary Land Tenure in Tanganyika” (1957), Tanganyika Notes and Records 46, 117, at p. 120.

page 5 note 2 Taylor, op. cit., 14.

page 5 note 3 Hailey, op. cit., 685.

page 5 note 4 Nyerere, Socialism and Rural Development, 1967, 8.

page 5 note 5 Review of Land Tenure Policy, Government Paper No. 6, 1958, para. 14.

page 5 note 6 Ibid., para. 16.

page 6 note 1 This policy for the creation of what would have amounted to native reserves was strongly urged by the white settlers and the administration in Kenya. Though it was resisted by Governor Cameron of Tanganyika, one of the charges given to the Arusha Lands Commission under MarkWilson, J., was to make recommendations for “improving the homogeneity of alienated and tribal lands respectively …”: Tanganyika, Arusha-Moshi Lands Commission Report, 1947, p. 5. The desirability of this policy, which in part explains the Meru Land Case (see Chidzero, op. cit., 241), was doubted in the Commission's report (Arusha-Moshi Lands Commission Report, pp. 44–45) and the policy, never vigorously pursued, was abandoned by 1958.

page 6 note 2 Speech of the British delegate to the 11th Session of the Trusteeship Council in 1952. Cited in Chidzero, op. cit., 240.

page 6 note 3 Land Regulations, 1948, r.3 (as amended), rights of occupancy; Freehold Titles (Conversion) and Government Leases Act, cap. 523, Supp. 63, s. 19, government leases. The power of approving dispositions has been delegated to the Commissioner for Lands, Assistant Commissioner for Lands, Land Officers, Assistant Land Officers, Area Commissioners and Area Secretaries: Delegation of Powers Order, G.N. 399 of 1968.

page 7 note 1 The exercise of this discretion can be called in question before the High Court, in cases of gross mal-exercise, by the issue of orders of mandamus, certiorari or prohibition. It is probably also possible to bring such questions before the Permanent Commission of Enquiry.

page 7 note 2 Information obtained from interviews with officials of Department of Lands in the Ministry of Lands, Settlement and Water Development, Dar-es-Salaam.

page 8 note 1 Where he seeks to dispose of it, of course, the transaction falls within s. 11.

page 8 note 2 In one recent case a para-statal organisation sought approval for an agreement to purchase a store for its business. On the recommendation of both the Regional Land Officer and the Regional Commissioner that the price sought by the private occupier was excessive and that the organisation could itself build a better store at smaller cost, consent was refused.

page 8 note 3 Freehold Titles (Conversion) and Government Leases Act, cap. 523, s. 38.

page 8 note 4 Land Regulations 1948, reg. 6; Rights of Occupancy (Development Conditions) Act, No. 18 of 1963, s. 5.

page 8 note 5 E.g. Morogoro (G.N. 230 of 1967), Tabora (G.N. 43 of 1968), Tanga (G.N. 64 of 1968) and Bukoba (G.N. 230 of 1968).

page 8 note 6 See Government Paper No. 2, 1962, para. 15, on the use of the consent provision to encourage development of land held under a right of occupancy.

page 9 note 1 (1951), 1 T.L.R. (R.) 547.

page 9 note 2 Mohamedbhai Kanbhai v. Mtoo Tafakari (1953), 1 T.L.R. (R.) 433.

page 9 note 3 Mohamed Alladita v. El-Harthi (1955), 22 E.A.C.A. 84.

page 9 note 4 See s. 11 (vi).

page 9 note 5 Section 11 (i).

page 10 note 1 This has been decided in relation to rights of occupancy under reg. 3 of the Land Regulations, 1948, which is, in material parts the same as s. 11: Patterson and Versi v. Kanji (1956), 23 E.A.C.A. 106; Patel v. Lawrenson (1957), 2 T.L.R. 309; Fazal Kassam (Mills) Ltd. v. Abdul Nagji Kassam, [1960] E.A. 1042.

page 10 note 2 Section 11 (vii); Mohamedbhai Khanbhai v. Mtoo Tafakari (1953), 1 T.L.R. (R.) 435 (on appeal, (1953), 1 T.L.R. 639, this case was decided under s. 2 of the Registration of Documents Ordinance 1921, which prohibited registration of unapproved dispositions of land from a native to a non-native. See also s. 11 (ii) of the Land (Law of Property and Conveyancing) Ordinance.

page 10 note 3 [1960] E.A. 1042.

page 10 note 4 By the Land (Amendment) Regulations, 1958, reg. 21 of which added on the requirement of writing.

page 10 note 5 This contrasts with the terms of other consent provisions. The Land Regulations, 1926 (G.N. No. 8/926), reflecting their Nigerian origins, provided that any purported alienation of a right of occupancy without the Governor's consent was not only unlawful, but “null and void” (s. 2). This was replaced in the Land Regulations, 1931 (G.N. No. 127/1931) by an “unless and until” clause similar to that in s. 11.

It contrasts also with the consent provision in the Freehold Titles (Conversion) and Government Leases Act, cap. 523, which provides in these terms:

“19. A disposition of a Government lease shall not be operative without the consent of the Commissioner.

“20. Where the Commissioner fails to give his consent to any disposition to which section 19 applies within six months after it is sought, or refuses consent, the transaction shall become void.”

page 11 note 1 (1957), 2 T.L.R. (R.) 309.

page 11 note 2 (1953). 1 T.L.R. (R.) 433.

page 11 note 3 Ibid., 639. See p. 10, n. 2, supra, for the basis of the Court of Appeal's decision.

page 11 note 4 It would appear from the Court of Appeal decision in the Uganda case of Motibai Merji v. Khursid Begum (1951), E.A. 101 (C.A.) that such a transaction, being void ab initio, cannot be corrected and enforced. It is submitted that such a proposition cannot be supported on the facts of that case since, as the Court repeated several times, on the evidence the requisite consent had never been obtained and the transaction was clearly unenforceable for that reason alone. In any case, it is difficult to see how in a case arising under 11 it can be denied that the parties, by reducing their oral agreement into writing and getting it approved, have concluded a valid and enforceable agreement, at least from the date of such approval.

page 11 note 5 Patterson and Versi v. Kanji (1956), 23 E.A.C.A. 106, 109.

page 12 note 1 In case of unwritten dispositions, as they are not specifically enforceable, it would seem to be open to either party to repudiate them at any time before their reduction into writing.

page 12 note 2 Amar Singh v. Kulubya, [1964] A.C. 142, 153 (in this case the Privy Council was dealing with a consent requirement as to a disposition of mailo land in Uganda, but the reasoning applies equally to section 11).

page 12 note 3 The Privy Council has described such agreements as “inchoate” pending approval: Denning v. Edwardes, [1961] A.C. 245, 254.

page 12 note 4 See discussion above of matters considered in giving consent.

page 12 note 5 In Mohamed Alladitta v. El-Harthi (1955), 22 E.A.C.A. 84 the native party was permitted to restore the deposit paid by the purchaser and recover his title deed 19 months after the agreement was signed. But in that case no consent had been obtained and the point made in the text was not put to the court.

page 12 note 6 Patterson and Versi v. Kanji (1956), 23 E.A.C.A. 106, 109.

page 13 note 1 (1953), 1 T.L.R. (R.) 639 (discussed on p. 11, supra).

page 13 note 2 (1955). 22 E.A.C.A. 84.

page 13 note 3 See p. 12, n. 5, supra, for comment on this case.

page 13 note 4 The absence of a consent requirement makes a secret effective disposition to a third party more likely.

page 14 note 1 In Patel v. Lawrenson (1956), 2 T.L.R. (R.) 309 the court refused full or partial specific performance of the agreement and denied the plaintiff any damages for breach of contract. The issue posed in the text did not, however, arise since approval for the plaintiff's purchase had not been obtained.

page 14 note 2 Gangji v. Hemedi (1956), 23 E.A.C.A. 268, 269.

page 14 note 3 Ibid.Denning v. Edwardes (1961), A.C. 245, 254.

page 14 note 4 Mohamed Alladita v. El-Harthi (1955), 22 E.A.C.A. 84, 86; Patterson and Versi v. Kanji (1956), 23 E.A.C.A. 106, 111. But see Patel v. Lawrenson as explained in n. 1, supra.

page 14 note 5 Mohamed Alladita v. El-Harthi (1955), 22 E.A.C.A. 84, 86.

page 14 note 6 (1956), 23 E.A.C.A. 106.

page 15 note 1 [1961] E.A. 157; on appeal, [1964] A.C. 142.

page 15 note 2 In contrast to the terms of s. 11, the Uganda consent provisions covering this lease made it a punishable offence for a native to permit a non-native to occupy his mailo and for a non-native to so occupy it without the appropriate consents: The Possession of Land Law (cap. 25 of the 1957 Revised Edition of the Native Laws of Buganda), s. 2(d), (k)(2), and Land Transfer Ordinance (cap. 114 of the 1951 Revised Edition of the Laws of Uganda), ss. 2, 4(1). Thus a transaction contravening these provisions was clearly “illegal” and void.

page 15 note 3 This was upheld by the Judicial Committee of the Privy Council: Amar Singh v. Kulubya, [1964] A.C. 142.

page 15 note 4 [1961] E.A. 157, at p. 166.

page 16 note 1 [1967] E.A. 166.

page 16 note 2 L.N. 142/1961 (Kenya).

page 16 note 3 Ibid., 171, 172.

page 16 note 4 Ibid., 168.

page 17 note 1 Ibid.

page 17 note 2 Occupation under an unapproved disposition within s. 11 is not prohibited or made punishable, cf. Uganda statutes discussed in p. 15, n. 2, supra. As the law stands it would appear to be open to a non-native by agreement wth the occupants to move into occupation of land held under customary tenure without seeking consent, if this is expected to be refused. Such a transaction is not likely, however, to prove attractive to non-native alienees who are peculiarly sensitive on the question of good title.

page 17 note 3 [1967]E.A. 166, 177.

page 17 note 4 Ibid., 170.

page 17 note 5 In the Nigerian case of Solanke v. Abded, [1962] 1 All N.L.R. 230, the “lessee” under an unapproved lease sued the lessor for trespass. The latter argued that as the purported lease was without the necessary consent the plaintiff could not rely on it in his claim for trespass. It was held that though an unapproved lease was under the relevant section unlawful, null and void, it was not necessary in the interest of public policy for the agreement to be treated as illegal. It was thus not open to the defendant to rely on his own wrongful act to impeach the agreement.

page 18 note 1 (1954), 1 T.L.R. (R.) 435. In this case an Arab mortgaged property to an Indian without obtaining the necessary official consent. The validity of the mortgage therefore depended on whether the Arab was a “statutory native” for the purpose of the relevant statute. At the time of the mortgage, 1922, this was the Registration of Documents Ordinance, 1921, s. 2 of which defined a native as “a native of Africa (including) a Swahili and a Somali.” It was held that the defendant was not a native within this definition and that contrary to the ruling in Mohamedbhai Khanbhai v. Tafakari (1953), i T.L.R. (R.) 433 the wider definition in s. 11 of the Land (Law of Property and Conveyancing) Ordinance, which had in the meantime been passed, did not retrospectively affect the situation. It is submitted that this interpretation of s. 2 of the Registration of Documents Ordinance, 1921, applies to s. 2 of the Land Ordinance which is essentially similar.

page 19 note 1 This still leaves unexplained the exclusion of, and therefore the denial of the rights of natives to, persons whose mothers were natives but whose fathers happened to be European or Asian. Could the explanation of the definition be at least in part that it was intended to exclude persons born and bred in Africa of European or Asiatic parents and who could with some justification claim to be “natives of Africa” after a generation or two? The low incidence of intermarriage and the generally superior standard of living of persons of mixed parentage would go some way towards explaining why their exclusion from the definition of native within the Land Ordinance did not cause any noticeable hardship.

page 19 note 2 (1951), 1 T.L.R. (R.) 547.

page 19 note 3 Ibid.

page 19 note 4 See for short discussion and references on this matter Hailey, op. cit., pp. 43–5.

page 20 note 1 Salomon v. Salomon, [1897] A.C. 22.

page 20 note 2 A. G. Katate v. Nyakatukuru (1954), 7 U.L.R. 47; Kajubi v. Kayanja, [1967] E.A. 301. See also People's Pleasure Park Co. v. Rohelder, 61 S.E. 794 (Va., 1908), affd. 63 S.E. 981 (1909); Perkins v. Monroe Church of Christ, 70 N.E. 2nd 487 (Ohio, 1946), in which cases a company and a church composed of negroes were held not to be coloureds or non-Caucasians within restrictions imposed by building covenants.

page 20 note 3 It may be necessary to restrict this protection to corporations whose articles expressly limit membership to natives: see n. 6, infra, and accompanying text.

page 20 note 4 Land Transfer Act, cap. 202, s. 2(b), Revision of the Laws of Uganda, 1964. See also Interpretation (Special Provisions) Act, cap. 17, s. 2. Ibid.

page 20 note 5 Two unreported cases discovered and discussed by P. A. Thomas, in “Corporate Personality and the ‘African’ Company in Uganda” (1968), 1 E.A.L.R., 33, 49–50, provide exceptions to this consistency. They are Samueli Kasule v. Lameka Ntambi for Mengo Blue Gardens, High Court Civil Appeal No. 51 of 1958, and Simson Kiyimba v. Tedele Kasumba, Judicial Adviser's Miscellaneous Causes No. 1 of 1964.

page 20 note 6 In addition to the first two cases cited in n. 5, supra, see Nakalyakani and Co. Ltd., v. Musoke, Uganda High Court Civil Appeal No. 34 of 1942 (unreported) and Kubo v. Buganda Butchers Ltd., Uganda High Court Civil Case No. 194 of 1951 (unreported). This whole question of the relevance of the racial character of a corporate body has been fully discussed in relation to Uganda by Thomas, loc. cit.

page 21 note 1 Land (Law of Property and Conveyancing) Ordinance, cap. 114 (Tanganyika) s. 11 (ix) (sub-section added on by Freehold Titles (Conversion) and Government Leases Act, cap. 523, Fourth Schedule). This provision would seem to be duplicated in the Land Transfer (Specified Corporations) Act, No. 20 of 1966, s. 3 (2), which also empowers the Minister to exempt from the operation of s. 11 of cap. 114 any “specified corporation” i.e. corporation listed in the Schedule to the Act. The only corporation originally set out in the Schedule was the National Housing Corporation, but the Permanent Housing Company of Tanzania Limited has now been added by G.N. 121 of 1968.

page 21 note 2 It is necessary to state this assumption which underlies the suggestion of alternative criteria, since a radical modification of the consent provision is suggested later in this study.

page 21 note 3 It is stated as one of the principal aims and objects of T.A.N.U. and the Government

“(h) To see that the Government gives equal opportunity to all men and women irrespective of race, religion or status”: T.A.N.U. “Creed”, The Arusha Declaration, 1967, 2.

page 21 note 4 It is reported that when land was set aside just outside the White Highlands in Kenya for Asian agricultural settlement in the 1920's there was no demand for it. LordHailey therefore questioned the existence of any considerable body of Asians interested in cultivation: Hailey, op. cit., 407. Perhaps a similar doubt remains as to Asians in Tanganyika today.

page 22 note 1 Judicature and Application of Laws Ordinance, cap. 453, Supplement 61, s. 9(2)(a).

page 22 note 2 Sawyerr, “Internal Conflict of Laws in East Africa“, in East African Law and Social Change (Ed. Sawyerr, 1967), pp. 110, 146–7.

page 22 note 3 President Julius Nyerere has indicated as much in these words: “Twenty years ago we could have said all capitalists in this country were from those areas [Asia and Western Europe]; we cannot say this now. For the truth is that capitalist attitudes have nothing whatsoever to do with the race or national origin of those who believe in them or practise them”. Nyerere, “Socialism is not Racialism”, The Nationalist, 14 February 1967 (reproduced as Appendix II to The Arusha Declaration. This passage occurs at p. 27 of the reproduction). See in addition Dumont, False Start in Africa, Chap. 6, for the growth of a privileged landed class of Africans in other parts of Africa.

page 23 note 1 Para. 5(iii). See also Government Paper No. 2–1962, para. 9.

page 23 note 2 This has been particularly noted among the Chagga, the Sambaa, the Haya and around Tanga: Dobson, 6 J.A.A. 80, 81, 90; Oldaker, loc. cit., pp. 120, 138; Nyerere, Socialism and Rural Development, pp. 13 et. seq. See the recent cases of Laurean Baitu v. Stanislaus Tibenda, Pancras Elias v. Gretian Pancras and Anor. and Evarista Martin v. Tafumioa Tibishubwamu and Anor., reported as cases Nos. 410, 411 and 412 respectively in Tanzania High Court Digest, Vol. 2 (1968), for discussion of the sale of land among clan members in the Bukoba area.

page 23 note 3 Dumont, loc. cit.

page 23 note 4 Loans advanced by state-controlled agencies constitute a major source of the economic strength of this class of persons. It is therefore in the power of the state to limit this strength by the imposition of strict conditions for the giving of loans. If such conditions relate to the amount of the loan and the purposes to which it can be put, they will together with the other control mechanisms suggested in this study, provide an instrument for regulating the capacity of natives as well as others to exploit their fellow natives.

page 24 note 1 See p. 2, n. 1, supra.

page 24 note 2 See p. 3, n 1, supra.

page 24 note 3 “The Arusha Resolution”, in the Arusha Declaration, pp. 19, 20.

page 24 note 4 See e.g. Interim Constitution of Tanzania (Amendment) (No. 2) Act, No. 40 of 1967, s. 2 (Members of the National Assembly); and Local Government Laws (Amendment) Act, No. 15 of 1968, ss. 3, 10. (Members of Local Authorities).

page 24 note 5 Interim Constitution of Tanzania, No. 43 of 1965 (as amended), s. 27, (2)(1).

page 24 note 6 Ibid., s. 27 (14)(a)(i).

page 25 note 1 The Attorney-General is empowered to petition the High Court to declare a seat in the National Assembly vacant if he has reason to believe that its occupant is disqualified under the Constitution from election to the Assembly: National Assembly (Qualification of Members) (Forms and Procedure) Act, No. 14 of 1968, s. 3.

page 25 note 2 Interim Constitution of Tanzania, s. 27 (2)(k).

page 25 note 3 Ibid., s. 27 (12)(a).

page 25 note 4 The absence of a specifically legal sanction still leaves the weight of social and political pressure, especially in the atmosphere generated by the ideas behind the Arusha Declaration.

page 26 note 1 See p. 2, n. 2; p. 4, nn. 3 and 4, supra, and accompanying text.

page 26 note 2 See e.g. Nyerere, Socialism and Rural Development (1967).