MZUMBE UNIVERSITY

FACULTY OF LAW

COURSE : LLB 2

NATURE OF WORK : GROUP ASSIGNMENT

SUBJECT : LAND LAW

SUBJECT CODE : LAW 220

LECTURER : MS. ITEBA

PARTICIPANTS GROUP NO.03 (D)

01: YUSUPH HAMISI KISWAGA : REG 1236009/T.20

02: RICHARD ALLAN CHABO : REG 1236041/T.20

03: BRUNO MATHIAS NJOGOLO : REG 1236010/T.20

04: REHEMA E MWASONYA : REG 1236239/T.20

05. EUJEN SWEETBERT GAHUNGA : REG 1236044/T.20

06: JANETH A. NKENZI : REG 1236241/T.20

07: MARTHA GODFREY MBOYA : REG 1236244/T.20

08: MAGOOGE CHACHA MARO : REG 1236261/T.20

Question;

The Imperial Decree of 1895 and the Land Tenure Ordinance of 1923 were the foundation of
legal framework on land law and they were the best legislations ever seen. Critically discuss

i
TABLE OF CONTENTS
SCOPE OF THE QUESTION.....................................................................................................................2
INTRODUCTION.......................................................................................................................................2
FOUNDATION OF LEGAL FRAMEWORK OF LAND LAW IN TANZANIA......................................2
The Imperial Decree of 1895...................................................................................................................3
Land Tenure Ordinance of 1923..............................................................................................................4
Land tenure and estate under Imperial Decree of 1895 and the Land Tenure Ordinance of 1923 and that
under the Land Act Cap 113....................................................................................................................5
Land occupation under the Land Act.......................................................................................................6
Estate to occupation and conveyance of land under the Land Act...........................................................7
WHETHER THE IMPERIAL DECREE 1895 AND LAND TENURE ORDINANCE OF 1923 WERE
BEST LEGISLATIONS EVER SEEN OR NOT........................................................................................7
Occupation of land by the Government for the general interest of the citizens or natives.......................7
Protection of natives land against alienation by non-natives...................................................................7
Unfair treatment of customary tenure and statutory tenure......................................................................8
REFERENCE............................................................................................................................................10

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SCOPE OF THE QUESTION
The general concept of the question demand to discuss the on how the Imperial Decree of 1895
and Land Tenure Ordinance of 1923 as the foundation of legal framework of the Land Law in
Tanzania as they were best legislation ever. Work divided into three parts which include the
Introduction part that entails the general concept and historical back ground of pre-colonial
period in the land matters. Also the second part it explore on foundation of land law legal
framework and the reality of the phrase that whether it is true that the two legislations were the
best legislation ever seen or can the adverse inference be drawn. And lastly the conclusion which
summarizes the whole work.

INTRODUCTION
Before Tanzania as then was Tanganyika was colonized by the Germans and then the British, the
general structures of the land holdings were based on traditional laws and culture of each
respective tribe in an area. The individual as the member of the family, clan, or tribe acquired
rights of use in arable land he and his family could clear, cultivate and manage. However when
land shows the signs of exhaustions the shifting cultivation was practiced.1

Therefore by that time each tribe had Chiefs and elders or Headmen who controlled and
allocated land to individuals (members of that tribe) on behalf of the tribe in a fiduciary capacity.
This system was continued to exist even during the Germans and British colonial rule of
Tanzania by then Tanganyika. However, following the abolition of Chieftaincy by the African
Chief Ordinance (Repeal) Act No. 13 of 19632 after Tanzania obtained independence in 1961
the controlling of Chiefs over land which was one of their traditional functions was rendered
obsolete.3

FOUNDATION OF LEGAL FRAMEWORK OF LAND LAW IN TANZANIA

The fact that the Imperial Decree of 1895 and the Land Tenure Ordinance of 1923 was the
foundation of our land law legal framework, it is irresistibly undeniable facts, since before the

1
Fimbo, G.M., Essay in Land Law in Tanzania, Dar es salaam: Dar es salaam University Press, 1992 p 1
2
Cap. 51
3
Loc cit

1
coming of colonial rule, land was held under traditional law and culture of each respective tribe
as pointed out above. Upon the coming of the German colonial rule in Tanganyika they needed
to promote plantation agriculture of which led to the demand for land alienation of fertile or
potential areas.4

Due to the process of colonization in the last quarter of 19 th century. European nations, notably
Britain, France and Germany grabbed colonies and spheres of influence. The colonial territory
such as German East Africa (Tanganyika) henceforth become appendages to the metropolitan
home market for manufactured goods, a reservoir of cheap labour, raw materials and outlet for
export of capital. Imperialist requirement could be met by establishment of plantation
agriculture, settler agriculture or peasant agriculture in the colony. In Tanganyika these three
types of agriculture were pursued. Consequently an appropriate land policy which could
facilitate these types of agriculture had to be devised.5

Henceforth the above could not be possible without changing the land holding rules. Land
alienation was facilitated by legal and policy instruments. 6 The crucial instruments which were
established were the Imperial Decree of 26th November 1895 regarding creation, Acquisition
and Conveyance of crown land.7

The Imperial Decree of 1895

The Decree in its foremost section, section 1 it declared all land of German East Africa as
Crown land vested in the German Empire. Section of the Imperial Decree provided that

“except where the ownership and the real rights in land can be proved by private
persons or certain other specified persons, all land in German East Africa shall be
deemed un-owned and be regarded as Crown land and ownership to such land is
vested in the Empire.”

4
Tenga, W.R and S.J, Mramba., Theoretical Foundation of Land Law in Tanzania, Dar es Salaam: Law Africa
Publishing, 2014. p 41
5
Tenga, W.R and S.J, Mramba., Theoretical Foundations of Land Law in Tanzania, Dar es Salaam: Law Africa
Publishing, 2014. p 41
6
Fimbo, G.M., Essays in Land Law of Tanzania, Dar es Salaam: Dar es Salaam University Press, 1992. p 1 and 2
7
Regarding the acquisition and conveyance of land in general in German East Africa published 26th November 1895
and 1896 Circular/ Rules to implement the Decree,(Decree of the Imperial Chancellor regarding the carrying out of
the Imperial Decree pub;lished on 26th Nov, 1895, Ordinance by the Governor regarding the application and carrying
out of the Imperial Dacree of 26th Nov, 1895, regarding the creation, acquisition and transfer of land in G.E.A and
the Rules thereunder by the Imperial Chancellor dated 27th Nov, 1895 published on 4th December 1896)

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Notwithstanding of the provision of section1 of the Imperial Decree provided that all land
whether occupied or not was un-owned Crown land. A proviso to the section exempted land
already in the private ownership or possession by Chiefs or African communities. The Decree
imposed some control over the alienation of African land. Transfer from African to non-African
could not be valid without consent from the Governor. 8 State institutions were assigned a
function of granting land to the planters and settlers.

The implication of the Decree was that land was to be deemed un-owned Crown land. The only
exceptions were claims could be proved with documents by private persons who included settlers
and natives.9 Under the Imperial Decree there were four land tenure systems, (i) Freeholds
granted mainly to European settlers and arising from conveyance of property through purchase
or sell or public auction, (ii) Leaseholds granted by the government, (iii) Crown land un-owned
land as determined by the Commission appointed by the Governor and (iv) Customary land
tenure over land which as determined by the land Commissions.10

After the WW1 Tanganyika becomes a mandate Territory under the League of Nations vide the
Versailles Peace Treaty of 1919. The British started its control by proclaiming an Order in-
Council of 1920 (Tanganyika Order-in-Council) under the Foreign Jurisdiction Act of 1890
which provided inter alia for the reception of the English law.

Land Tenure Ordinance of 1923

Under the British administration the system of land holding continued to change. Following the
enactment of the Land Tenure Ordinance of 1923 (which called the Land Tenure Ordinance
Cap. 113) under section 2 of the Ordinance declared the whole of the land of the territory,
whether occupied or unoccupied from 26th January, 1923 to be public of which until to date as
per section 4 (1) of the Land Act11 it provides for all land in Tanzania shall continue to be public
land and remain vested to the president as a trustee for and on behalf of all citizens of Tanzania.

However the proviso to section 2 of the Ordinance did embrace all titles and any interests inland
acquired before the coming into operation of the Ordinance just to quote; “nothing shall affect

8
Section 11 of the Imperial Decree of 1895
9
Lyall, A. B., Land Law and Policy in Tanganyika, 1919-1932, a Dissertation submitted in partial fulfillment of the
Degree masters of Laws of the University of Dar es salaam, 1973, p 8.
10
Kironde, J.M., Land Tenure, Land Use and Land Reform in Tanzania, A Synopsis, 2006, p. 9
11
Cap 113

3
the validity of the title to the land or any interest therein lawfully acquired before 26 th January
1923.”

The Ordinance introduced the concept of right of occupancy which was defined to mean right to
occupy and use land. Following criticism from Permanent Mandate Commission of League of
Nations led to its amendments in 1928. Under section 4 the Governor in the exercise of the
power conferred upon him by this Ordinance, was required to have regard to the native law and
customs existing in the district in which such land was situated. Following such amendments the
word “native” was defined to mean any native of Africa not being of European or Asiatic origin
or descent and includes a Swahili not Somali.

Therefore the national government in Tanganyika inherited the colonial laws and policy on land
at independence. Thus at independence the Land Tenure Ordinance of 1923 and its colonial
spirit was retained. The word president was substituted for the word Governor whenever it
appeared in the Ordinance. It was possible for the President and till now as per section 4(2) of
the Land Act12 to acquire land although not with the similar motive with the Governor. The
concept of land ownership which was disrupted during colonial era continued to be a myth.
Individuals were deemed to own improvements on the land of terms of years and not the land
itself, the tenancy continued to date whereby individuals are allocated land to occupy and use
subject to the conditions attached to such allocation as per subpart 2 of the Land Act.

Land tenure and estate under Imperial Decree of 1895 and the Land Tenure Ordinance of
1923 and that under the Land Act Cap 113
Under the Imperial Decree of 1895 the occupier could hold land in perpetuity subject to the
resumption clause that the Governor could acquire it for public purpose at the original price plus
compensation for any improvements made on the land.13 Lease could either be of 21 years or
perpetual though the Governor could terminate it after 21 years with compensation. Customary
or native tenure continued in those areas where the occupiers could prove ownership under
native tenure under such land.

Under the Land Tenure Ordinance of 1923, as per section 3 all public and rights of control are
declared under control and subject to the disposition of the Governor, and shall be held and
12
[ Cap 113 R.E 2019]
13
Fimbo, supra note 4., p. 3

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administered for the use and common benefits direct or indirect of the natives, and no title to the
occupation and use shall be valid without the consent of the Governor. Also under section 5 of
the said Ordinance 1923, it stipulated the concept of right of occupancy, whereby it meant a title
to use and occupation of the land, and the grantee shall be termed as occupier and granted by the
Governor as per section 6 of the Ordinance 1923.

The estate to hold land under the Ordinance 1923 was for a definite time not exceeding 99 years
and shall be granted to the term of any contract which may be made between the Governor and
occupier.14 The transfer of land by natives to non-natives was restricted under 8 of the Ordinance
save for the consent of the Governor. And the disposition of land by revocation was entrusted to
the Governor15

Being the case at independence the Land Tenure Ordinance 1923 and its colonial spirit was
retained. This marked the foundation of land law tenure in Tanzania, henceforth word President
was substituted for the word Governor whenever it appeared in the Ordinance. As the result all
land in Tanzania shall continue to be public land and remain vested to the President as the trustee
for and on behalf of all citizens of Tanzania.

Land occupation under the Land Act

The Land Act provides for the right to occupy land on individual basis or in association with
others. Such right can either be of granted right of occupancy or derivative. 16 The right can be
enjoyed by both citizens and non-citizens. 17 For citizens their occupation is general not restrictive
according to the Act the right to occupy land which a citizen, a group of two or more citizens
whether formed together in an association or not partnership or corporate body, under the Act or
any other law. For non-citizens their occupation of land is qualified and restricted to
improvement approved by Tanzania Investment Centre only.18 In order for the foreigner to
obtain a right of occupancy he must secure a certificate of incentive from TIC as evidence to the
Commissioner for land of the approval by TIC of the investment.

14
Section 7 of the Land Tenure Ordinance 1923, Cap 113
15
Ibid section 10
16
Section 19(1) of the Land Act [Cap. 113, R.E 2019]
17
Ibid section 19(2)
18
Ibid section 20(1)

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Estate to occupation and conveyance of land under the Land Act
The estate on holding land in Tanzania is categorized and the category includes, long-term right
of occupancy (99 years) short term right of occupancy (less than 99 years but not less than 5
years) and periodical (not more than 4 years or year to year) according to Land Act a right of
occupancy may be granted up to but not exceeding 99 years it can be also be granted for a term
together with an option for a further term or terms which together with the original term may be
up to but shall not exceed 99 years.19

Natives were restricted to dispose of land to non-natives without the prior consent of the
Governor, the same was retained under the Land Act, under section 45(2) the President has the
power to revoke the right of occupancy to any occupier (a citizen of Tanzania) who attempt to
dispose of the right of occupancy to a non-citizen contrary to the requirements set out under the
Act.

WHETHER THE IMPERIAL DECREE 1895 AND LAND TENURE ORDINANCE OF

1923 WERE BEST LEGISLATIONS EVER SEEN OR NOT

Occupation of land by the Government for the general interest of the citizens or natives
The Ordinance may be said as it has been a good law for technical reasons, that it enabled the
Government to acquire land freely without having to bow down to individuals. In the first place
the President could acquire land under the Land Ordinance for the general benefits of the citizens
just as it was for the Governor under section 4 of the Ordinance.20

Protection of natives land against alienation by non-natives

Proviso to section 1 of the Imperial Decree 1895 and section 8 of the Land Tenure Ordinance
1923 restricted alienation of natives land to non-natives by limiting the transfer of land by
natives to non-natives subject to the consent of the Governor. Although the Governor was acting
mainly to safeguard the interest of the colonial Government but in one way or another it
protected the natives land form being smoothly alienated by white settlers in a sophisticated
manner.

19
Section 32(1) of the Land Act [Cap. 113, R.E 2019]
20
Tenga, supra n. p 43

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Unfair treatment of customary tenure and statutory tenure
Under the Imperial Decree 1895 through the Circular 1896 distinguished ownership claims and
mere right of occupation.21 Ownership claims were to be proved by certificates and were
essentially aimed for settlers; mere right of occupation could be proved merely by cultivation and
were aimed for the natives. In this case no document was needed for natives. Consequently,
natives land fell squarely under the realm of un-owned land because the only vivid way to justify
ownership was through evidentially document which they could not have such land was
smoothly treated as Crown land.22

Just like its predecessor German, under the British the deemed right was not given equal status as
the granted right of occupancy. Under regime of German and British colonial rule occupation by
native was deemed permissive and at the will of the Crown and the Governor. Henceforth this
rendered illusory notion of security of tenure on Customary Land Tenure because the Decree and
the Ordinance failed to protect the native’s rights in their land because it could not prevent
compulsory acquisition of natives land by the colonial government for the benefit of immigrants.
As seen in the case of Mtoro bin Mwamba v. AG23 the applicant applied for the first
registration as a beneficial owner of the land I fee simple under the Washomvi custom but was
refused. He brought the matter to court, in the court he argued that Washomvi tribe recognized
individual ownership equivalent to freehold. It was decided inter alia that Washomvi law or
custom did not know individual ownership to the land except individual usufructuary rights and
where land was held by a native the inference was that the possession was permissive and not
adverse. According to this case, it appears therefore that what was considered to be of interest to
the natives was a mere right to the standing trees and not the land itself.

As the courts were acting as the instruments of the ruling class and not justice, sometimes they
defeated genuine claims on mere technical grounds. In the case of Descendants of Sheikh
Mbaruk Bin Rashid v. Minister for Lands and Mineral Resources 24 the appellants were Arab
Immigrants. They had settled on a land at Ukonga without documents and had never been
required to produce documents of title by anybody since 1896. Later on they were required to
vacate and their land acquired. The relevant authorities required them to state the nature of their
21
Tenga p 43
22
James, R. W., Land Tenure and Policy in Tanzania, Dar es salaam: East African Literature Bureau, 1971 p 14
23
[1953] 2 TLR 327
24
[1960] E.A 348

7
interests on the land. They stated their interests and made claims. However, negotiation for
compensation broke down. The appellants applied to the court of appeal. The Court held that the
title of native community was recognized as right of occupancy but the appellant being an Arab
could not have deemed right of occupancy under the Land Ordinance (1923). Their occupation
was only permissive and not ownership. The compensation was to be based on their right as
licensees and not otherwise.

Generally this work explore about the foundation of legal framework of land law in Tanzania,
however to say that the Imperial Decree 1895 and the Land Tenure Ordinance of 1923 were
the best legislation ever seen could be somehow illusory because after the coming of the
colonialist was the beginning of the fierce struggles between customary tenure and statutory
tenure. Customary tenure was deemed inferior to the statutory tenure. This time saw the
commencement of land alienation and grabbing. The colonialists used policy and statutory
instruments as ideal weapons for accomplishing those goals. Terms like un-owned Crown and
public land were colonial inventions to grab land from the natives. Customary rule of ownership
were disregarded and one had to prove ownership in person and with documentary evidence. As
a result majority of natives’ occupation was deemed permissive and could be alienated at will.
Statutory amendments were mostly a farce and were not intended to safeguard the natives’
interest.

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 REFERENCE
STATUTES

The Land Act [Cap. 113, R.E 2019]

The Land Tenure Ordinance of 1923

CASES

Descendants of Sheikh Mbaruk Bin Rashid v Minister for Lands and Mineral Resources [1960]
E.A 348

Mtoro Bin Mwamba v. A.G [1953] 2 TLR 327

BOOKS

Fimbo, G.M., Essays in Land Law of Tanzania, Dar es Salaam: Dar es Salaam University Press,
1992.

James, R. W., Land Tenure and Policy in Tanzania, Dar es salaam: East African Literature
Bureau, 1971.

Kironde, J.M., Land Tenure, Land Use and Land Reform in Tanzania, A Synopsis, 2006.

Tenga, W.R and S.J, Mramba., Theoretical Foundations of Land Law in Tanzania, Dar es
Salaam: Law Africa Publishing, 2014.

DISSERTATION

Lyall, A. B., Land Law and Policy in Tanganyika, 1919-1932, a Dissertation submitted in partial
fulfillment of the Degree masters of Laws of the University of Dar es salaam, 1973.