Land administration during colonial period

 Introduction

This post attempts to discuss issues pertaining to land administration during the colonial Era. The major instruments that were used to get control over land have been outlined as a means to provide an understanding of their implication to the pre-colonial systems of land occupation. Some landmark cases that were decided during this period have also been referred to shade more light the crucial issues.

Land during the German Era

The need to promote plantation agriculture led to the need for land alienation of fertile areas or potential areas. Land Alienation was facilitated by legal and policy instruments. During the German Era the crucial instruments that were used were the:-

(1) Imperial Decree of 26^thNov.1895,[1]

(2) 1896 Circular/rules to implement the Decree.[2]

 The Imperial Decree and its Implication

Section 1 of the Decree provided that ‘except where claims to ownership and to real rights in land can be proved by private persons or certain other specified persons, all the 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.’

Under the above section, the Decree provided that all land whether occupied or not was un-owned crown land. A proviso to the section exempted lands already in private ownership or possession by chiefs or African communities. Under the Decree all land grants had to be made by the Government.[3]The Decree imposed some control over the alienation of African lands. Transfers from an African to a non-African could not be valid without consent from the Governor.[4]The implication of the Imperial Decree was that all land was to be deemed un-owned crown land.  The only exception is where claims could be proved by private and other persons e.g. settlers and natives respectively.[5] Thus, Land was either occupied or unoccupied. Sovereignty and property merged in one entity to constitute the radical title.[6]

 Implication of the 1896 Circular

The Circular distinguished between ownership claims and mere rights of occupation. Ownership claims were to be proved by documents and were essentially aimed for the settlers. Mere rights of occupation could be proved only by cultivation and were aimed for the natives. In this case no documents were needed for natives. Consequently native lands fell squarely under the realm of un-owned because the only vivid way to justify ownership was through evidentiary documents which they could not have. Such lands were smoothly treated as crown lands.

Under the Decree and the Circular, occupation by natives was deemed permissive. Their lands were subjected to expropriation for freeholds purposely for the settlers. This rendered illusory the notion of security of tenure. Transfer of Crown land could be affected through Conveyance of ownership or Lease. Conveyance of ownership was to be held subject to the resumption clause i.e to be handled over to German Government when needed for public purpose. Three forms of tenure therefore existed during the German period. These were conveyance of ownership, leases and customary tenure.[7]

Under conveyance of ownership, the occupier could hold the land in perpetuity subject to the resumption clause that the Government could acquire it for public purpose at the original cost price plus compensation for any improvements made on the land. Lease could either be of 21 years or perpetual though the Government could terminate after 21years with compensation. There was an option to purchase. Customary or native tenure continued in those areas where the occupiers could prove private ownership under native tenure to such land.

Protection of Native Lands

Proviso to section 1 of the Imperial Decree limited transfer of land by natives to non-natives for more than 15 years without consent of Governor. The Governor mainly safeguarded interests of the Colonial Government. Alienation of native land continued.

After WW1 Tanganyika became mandate Territory under the League of Nations. The British had the responsibility to nurture it until it was ready for independence. In that case Tanganyikawas not a British colony. The Policy on land was guided by Articles 6 and 7 of the Mandate Agreement which were similar to Article 8 of the Trusteeship Agreement.[8]

Art ( 8) Trusteeship Agreement provided that ‘In framing laws relating to the holding or transfer of land and natural resources, the Administering Authority shall take into consideration native laws and customs, and shall respect the rights and safeguard the interests, both present and future, of the native population. No native land or natural resources may be transferred, except between natives, save with the previous consent of the competent public authority. No real rights over native land or natural resources in favour of non-natives may be created except with the same consent.’

Factors that influenced the British Land Policy were the status of Tanganyika as mandate and then trust territory and the policy to develop the country as plantation and peasant economy for metropolitan industries.[9] 

 Conversion of German Titles

Land alienated by German was sold as enemy property to British and few Indians videthe Enemy Property (Disposal) Proclamation of 1920. Very small percentage went to Africans. Alienated land continued to be alienated. German freeholds and leaseholds were retained as British freehold and leases. The leases carried the previous German conditions.

The British started it control by proclaiming an Order in Council (Tanganyika Order in Council of 1920) which provided for various issues including the law to be applied. The Order in council which was also considered as the first constitution did touch though sparingly on public lands under section 8(1).[10] The British also passed the Land Tenure Ordinance (1923). Section 2 of the Ordinance declared all lands whether occupied / unoccupied to be public lands. Proviso to the section stated that ‘... nothing shall affect the validity of the title or interest to land which had been lawfully acquired before the commencement of the Ordinance.’[11]

Section 3 vested all public lands and interests over them under the control and subject to the disposition of the Governor for the use and common benefit direct/indirect of the natives.[12]The preamble to the Ordinance which under the rules of statutory interpretation does not form part of the statute provided at lengthy on the protection of native rights.[13] Basically, section 3 and the proviso to section 2 could not protect native rights. There was continued land alienation in the name of common interest. The Ordinance introduced the concept of Right of Occupancy[14]and was defined as the right to use and occupy land. Criticisms from the Permanent Mandates Commission of the League of Nationsled to its amendment in 1928. Under section 4, the Governor in the exercise of the powers conferred upon him by this Ordinance in respect to any land, was required to have regard to the native laws and customs existing in the district in which such land was situated.

The amendment recognized customary titles by redefining right of occupancy to include… ‘title of a native or a native community lawfully using or occupying land in accordance with native law and custom’ hence the deemed right of occupancy for the natives.’ Despite such a redefinition, practically the amendment could not serve the purpose of protecting native rights against the superior granted rights. What it did was more of redefining right of occupancy to include deemed rights though it failed to protect them. It remained to be a mere declaration without guarantee of security. The Governor could for instance grant land to any person as he deemed fit land for public interest. This resulted in acquisition of land under native rights in favour of granted rights. Apart from the Ordinance there were regulations,[15] orders and circulars to ensure effective land control. It would seem that the British introduced a dual policy on land tenure. The native/deemed rights and granted rights. Although both tenure were recognized but in actual sense the native right was seen as inferior in comparison to the granted right.

The struggle between the two could also be noted in the case of Mohamed Nyakioze vs Sofia Mussa[16]where the court was trying to show the equality of the rights of the holders of the two tenures. The court stated that section 2 of the land Ordinance defines a right of occupancy as a title to the use and occupation of land and includes title of a native or native community lawfully using or occupying land in accordance with native law and custom… it would appear therefore that a certificate of occupancy could be issued to a person whose title to the use and occupation of land was in accordance with native law and customs.

Implications of the British Land Policy

Under the British the deemed right was not given same status as granted right of occupancy. In Muhena bin Said vs Registrar of Titles[17] the appellant applied to the Land Registry to be registered as an owner in fee simple. His application was rejected on the grounds inter alia that there was no evidence to satisfy the registrar that his occupation was other than the admitted general permissive occupation by all inhabitants of the territory. He added to prove that he had been in possession of the land for 30 years prior to the coming of the Germans and British. The court was of the view that although the proviso to section 3 of the Land Tenure Ordinance 1923 did provide that nothing could affect any title or interest in land lawfully acquired before the date of its commencement but the original tribal customs had no concept of individual ownership in fee simple.

Again in Mtoro Bin Mwamba vs A.G[18]the applicant applied for first registration as a beneficial owner of a land in fee simple under the Washomvi custom but was refused. He brought the matter to court. In court he argued that the washomvi tribe recognized individual ownership equivalent to freehold. It was decided inter alia that the Washomvi law or custom law did not know individual ownership to land except individual’s usufructuary rights[19]and that where land was held by a native the inference was that the possession was permissive and not adverse.

As the courts were acting as 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 vs Minister for Lands and Mineral Resources[20]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 interests on the land. They stated their interests and made claims. However, negotiations for compensation broke down. The appellants applied to the court of Appeal. The court held that the title of a native community was recognized as a right of occupancy but the appellant being an Arab could not have a 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.

In some instances courts considered the idea of individual ownership as a foreign concept which could not be comprehended among the Africans. This was serious failure on the part of the courts to administer justice as they also failed to treat each case on its own merit and avoid generalization. In the case of Amodu Tijani vs Secretary Southern Nigeria[21] the appellant a head chief of the Oluwa family in Nigeria claimed compensation for the land which was acquired by the colonial Government for public purpose. The basis of the claim was that the land was owned by the community. The Court stated inter alia that the chief had no absolute ownership of the land except right of control and management (seigneurial right). Also he could not claim the whole value of the land unless members of the community independently claimed and any compensation was to be distributed among the members of the communities represented. The court further stated that the notion of individual ownership was quite foreign to native ideas. Land belonged to the community, the village or the family never to the individual.

In what was seen as total generalization of judicial perception on the African land tenure in re Southern Rhodesia[22]the court stated inter alia that some tribes were low in the scale of social organization that their usages and conceptions of rights and duties could not be reconciled with the legal ideas of civilized society Although the court also hinted that some indigenous people were developed to the extent that their legal conceptions could hardly be less precise to that of English ideas this was a mere obiter and could not safeguard native rights to land.

Generally, while courts were seen as instruments of governance safeguarding the interests of the ruling at the expense of the natives the case of Mabo vs Queensland (No.2) (1992) which involved the Australian Aborigines (natives) provides a different stand where the Meriam people claimed continuous connection with their land despite the fact that the islands had been declared a possession of the New South Wales Colony in 1797 and annexed by the Queensland government in 1879 on the pretext that it was a vacant land. In particular the court held that the Meriam people (Aborigine) were entitled to the land against the whole world and the concept of terra nullis could not apply. In a nutshell, Eddie Mabo was an Indigenous inhabitant of the Murray (Mer) Islands in the Torres Strait. He led a group of the Meriam people in a Supreme Court  to challenge against the Queensland government on the issue of land ownership. Their case stated; 'Since time immemorial the Torres Strait Islands of the Mer (known as Murray), Danar and Waier and their surrounding seas, seabeds, fringing reefs and adjacent islets have been continuously inhabited by people called the Meriam people'

The Queenslandgovernment reacted to the land rights claim by passing the Queensland CoastIslands Declaratory Act 1985 (Qld) which said that the Torres Strait Islander rights and claims had been extinguished in 1879 when the islands came under the rule of the Queensland government. It was a futile move to stop the Meriam people's claim and in 1989 it was overruled as it contravened the Racial Discrimination Act 1975 (Cth). The case then came to the High Court of Australia – the highest court in the country. In the High Court the Meriam people claimed continuous connection with their land. This was despite the fact it had been declared a possession of the New South Wales Colony in 1797 and then annexed by the Queensland government in 1879. The Queensland government said it had saved the Indigenous people of the Murray Islands from 'barbarism' and that the Crown had assumed all rights to the land in 1879. This assertion, however, was undermined by the fact that in 1913 the Queensland government had bought land from the Meriam people on which to build a police station. If the Crown (and therefore the State government) already owned the land then why would it have to buy some from the Indigenous inhabitants? The government had also established a land court in the early part of the 20th Century to preside over land disputes between the Meriam people. Again, why establish a court to make judgments if the land belonged to the Crown?  On3 June 1992 six of the seven High Court Judges ruled;

'The Meriam people are entitled as against the whole world, to possession, occupation, use and enjoyment of the lands of the Murray Islands.'  Mabo vs Queensland [No 2] (1992) 175 CLR 1 declared that terra nulliushad never legally existed and that it had been wrongfully applied to Australia. The high court said that 'ultimate' title existed instead, and through that, native title could be claimed. Australian land law has developed from English land law and it was under those principles that Australia was settled. At common law all land is owned by the Crown which then deals with that land as it sees fit. In the 18th century there were three legally recognized principles that governed the taking over of new land; conquest, treaty or occupation (the terra nullius principle). As Australiawas an 'empty' country neither of the first two principles applied, and so under 18th century English common law, Australia became an occupied country. This legal fiction of an empty country was directly challenged by the Mabo case.
Under common law, landowners don't exclusively own their land, or own it absolutely – the Crown has ultimate title (dominium plenum). The Mabo judgment also broached this issue in relation to Indigenous land rights. It was the judgment of the court that in a true case of terra nullius then exclusive ownership of acquired land is matter of fact, however in an area where there are Indigenous owners, their rights to ownership are also recognized by common law. These Indigenous rights are known as 'native title'. This essentially means that when the English took possession of Australian land, they may have had ultimate title and the political power, but they never had absolute ownership of the land. And what is more, native title was never officially overturned when the New South Wales Colony was established.

One of the High Court judges involved in the Mabocase, Justice Brennan, described native title as; 'Indigenous inhabitants' interests and rights in land, whether communal groups or individuals, under their traditional laws and customs'

Terra nullius had been proven to be fiction and both ultimate title and native title were recognized and protected by common law. The claim of the Meriam people to ownership of the Murray Islands, therefore, was proven to be justified on the facts of their case. The Meriam people could prove a long and continuous tradition of living on that land, and native title had never been extinguished (overturned) on their land. The High Court judges in the Mabo case also investigated the circumstances where native title can be extinguished. They found that the Crown needed to show that it had dealt with a piece of land in a manner that was inconsistent with the continuing existence of native title. This meant that wherever the Crown had granted land to a person, on which that person, for example, had built a house, native title was extinguished.

 In the same manner as the Land Rights Act (Northern Territory) 1976(Cth), land that was already in use or that had been sold off could not be claimed by Indigenous peoples. It follows that wherever the Crown had sold the land (granted a freehold title) or rented out the land (a common law lease), native title was extinguished. The reason that a lease is sufficient to extinguish native title is that a lease gives the right to exclusive possession (no one else can use it) in return for rent money. The right to exclusive possession and the continuing occupation by Indigenous inhabitants are incompatible at law. This was based on the fact that if someone else had been using the land, then an Indigenous person could not have maintained a continuous, traditional link with that land – which is the basis on which native title is granted. This means that any land, disposed of by the Crown, is never able to be claimed under native title. Legislation by the government can also extinguish native title on a piece of land, but only if it doesn't breach the Commonwealth Constitution or the Racial Discrimination Act 1975. The Mabo decision ended forever the idea of terra nullius in relation to Australia, when it recognized the Meriam people as the owners of the Murray Islands. It also opened the door for other Indigenous groups to be able to claim ownership of land that they could prove a continuous connection with.

In Tanzania, the British unlike the German did not declare land to be crown land. Tanganyika was a mandate and then Trust territory not a colony. Its policy was couched under such framework. Crown lands were totally under the control of the German Empire. Public lands under the British were specifically intended to facilitate alienation of land as the Governor had control over all lands.

The East African Royal Commission’s Report (1955)

The Commission outlined the evils of communal ownership that existed by then and the need for encouraging individualization of land. It mentioned inter alia the features of communal ownership as including;-

(i)    Limitation of land market and value,

(ii)    Restriction on outsiders from the community from using the land,

(iii)    Focusing more on tribal exclusiveness as a means of security although it failed, and

(iv)   Encouraging unlimited number of stock over all land as well as fragmentation of the land due to lack of adequate controls and regulations.

Essentially, communal ownership was considered by African communities as an appropriate measure for safeguarding security on land. The Report however pointed out some of what were considered to be the shortfalls of communal ownership. These included:-

(i)  Impossibility of the tribes to exclude other non-tribal members from all land within there sphere as a right. Generally, tribes were trying to protect their land from being invaded by outsiders as one of security measures but was impossible.

(ii)    Limiting prospects of material advancement in land and sound agricultural husbandry. That it failed to encourage competition and therefore occupiers had no incentive to invest in land. In particular its features impeded development. It was considered to be difficult for people to care for the common property as tenure security was uncertain.

(iii)   Tribal restrictions on economic mobility were an impediment to economic development.(iv)  The exclusiveness of tribal land to its members was not a sufficient security to their holding.(v)  Limitation on application of mechanization and its ineffectiveness in promoting sound agricultural systems such as crop rotation and maintaining a balance between the stock and the carrying capacity of the land.

The Report apart from exploring the shortcomings of the system also identified some of the advantages of Individual ownership it was trying to advocate. The advantages were that Individual ownership:-

(i)   Promoted permanent crops,

(ii)   Developed a sense of responsibility among occupiers,

(iii)   Promoted individual security as opposed to tribal security,

(iv)   Encouraged land transfer through sale and purchase,

(v)    Reduced land fragmentation,

(vi)   Promoted land market,

(vii)  Promoted new technology,

(viii)  Encouraged land use planning and regulations as complementary tools.

The arguments formed the basis of Tanganyika Government Paper No 6 of 1958 which proposed a shift towards the freehold system and abolish customary tenure which never saw its way into law anyway. It however need to be noted that though the Report might have made a fair assessment of the matter it was advocating for what was considered to be best not for the majority of East Africa but the colonial Government at the time. The Report was fiercely criticized by the then President of TANU the late Mwalimu Nyerere in a paper entitled MALI YA TAIFA which was published in 1958. The paper conceded inter alia that the Government intended to remove the menace of shifting cultivation. But it opposed the proposed solution to shifting cultivation. It further acknowledged that the proposed individualization could be a solution which would create many other problems more difficult to solve than those it intended to solve. On this, the paper was reflecting on the implications of freehold system. That if people were given land to use as their property also they had the right to sell it. Bearing in mind the economical status of the majority of the people it was easy for them to be persuaded to sell the land thus turning themselves to tenants in the hands of rich foreigners. Also it could not be determined who will own land in years to come with precision particularly who will be the landlords and who will be the tenants. It could in other words create a class of rich and poor which TANU was struggling to fight against.[23]

Citations

[1] Imperial decree regarding creation, acquisition and conveyance of Crown Land and regarding the acquisition and Conveyance of Lands in general in German East Africa, published on 26/11/1895.

[2] See Instructions regarding the Carrying out of the Imperial Chancellor, published on 27/11/95, Ordinance by the Governor regarding the application and carrying out of the Imperial Decree of 26 November (1895) regarding Creation, Acquisition and Transfer of Land in G.E. A., and rules thereunder by the Imperial Chancellor dated the 27 November 1895 published on 4/12/96.82.

[3]Section 2

[4] Section 11

[5] See Lyall A. B Land Law and Policy in Tanganyika 1919-1932, A dissertation submitted in partial fulfilment of the Degree of Master of Laws in the University of Dar Es Salaam  (1973) at 8.

[6] See Shivji Not Yet Democracy: Reforming Land Tenure in Tanzania (1998) at 73.

[7] Op.cit fn 72 at 9

[8] See also Art (7) of the Trusteeship Agreement provided that ‘The Administering Authority undertakes to apply in Tanganyika the provisions of any international conventions recommendations already existing or hereafter drawn up by the United Nations or by the specialised agencies referred to in Article 57 of the Charter, which may be appropriate to the particular circumstances of the Territory and which would conduce to the achievement of the basic objectives of the international trusteeship system.’

[9] Op.cit fn  73 at 2.

[10] All rights in or in relation to any public lands shall vest in and may be exercised by the Governor for the time being in trust for His Majesty...public lands were defined to mean all lands in the Terrotory which are subject to control of His Majesty by virtue of any Treaty, Convention ot Agreement...section 1

[11] Section 2 ‘the whole of the lands of the Territory, whether occupied or unoccupied, on the date of the commencement of this Ordinance are hereby declared to be public lands. Provided that nothing in this Ordinance shall be deemed to affect the validity of any title to land or any interest therein lawfully acquired before the date of the commencement thereof and that all such titles shall have the same effect and validity

in all respects as they had before that date. Such titles, however, shall be proved to the satisfaction of the Governor within five years from the date of this Ordinance in such form as may be prescribed.

[12] …all public lands and all rights over the same are hereby declared to be under the control and subject to the disposition of the Governor and shall be held and administered for the use and common benefit, direct

or indirect, of the natives of the Territory, and no title to the occupation and use of any such lands shall be valid without the consent of the Governor’.

[13] WHEREAS it is expedient that the existing customary rights of the natives of the Tanganyika Territory to use and enjoy the land of the Territory and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves their families and their posterity should be assured protected and preserved; AND WHEREAS it is expedient that the existing natives customs with regard to the use and occupation of land should as far as possible be preserved; AND WHEREAS it is expedient that the rights and obligations of the Government in regard to the whole of the lands within the Territory and also the rights and obligations of cultivators or other persons claiming to have and interest in such lands should be defined by law.

[14] See section 1

[15] For instance consider the Land Regulations of 1926 for agriculatural land and the Land (Pastoral Purposes) Regulations 1927.

[16] (1971) HCD no 413

[17] (1948) 16 EACA 79

[18] (1953) 2TLR 327, James R.W and Fimbo GM (1973) at 8

[19] Essentially this meant the right to use and occupay land but not ownership.

[20] (1960) E.A 348, James R.W and Fimbo G.M (1973) at 389.

[21] (1921) 2 AC 399

[22] (1919) AC 211

[23]See also Fimbo G.M ‘Land, Socialism and the Law in Tanzania’ in EALR Vol 6 No 3 1973 at 230

References

Illife,J.,Tanganyika under GermanRule,1905-1912, East African Publishing House,Nairobi,1969,reprinted,1977

Imperial Decree published on 1895 on Instructions regarding the carrying out of Imperial Chancellor, published on 1895

Presidential Commision of Inqury Report Vol. 1 (1994)

James R.W Fimbo G. M Customary Land Law of Tanzania: A Source Book (1973)