INTRODUCTION
Land compensation, it is a cardinal principle of law that a person is entitled to own property and to the protection of the same in accordance with law. Where the property is to be taken or expropriated he has to be paid compensation. The amount of compensation has to be commensurate to the property. Such compensation must also be prompt.
It is on this backdrop that any deprivation of private property without prompt and fair compensation contradicts any just system of law. Article 24 of the Constitution of United Republic of Tanzania is couched along the same justification that every person is entitled to own property and has a right to the protection of his property in accordance with law[Constitution of United Republic of Tanzania [Cap 2 R.E 2002]].
As far as compensation is concerned can be basically looked into two major phases that is before the enactment of Land Acts (Old trend) and after the enactment of Land Acts (New trends), as it is well illustrated hereunder:-
OLD TREND ON COMPENSATION
The old trend of compensation was before 1999, and was to the effect that the compensation can be effected only by unexhausted improvement. The expression an unexhausted improvement is defined under Section 2 of Land Act[Cap 113 R.E 2002], and has the same meaning as to anything or quality permanently attached to the land direct resulting from expenditure of capital or labour by an occupier or any person acting on his behalf so as to increase of productivity and it includes the standing tree and crops. In those times a person could not be compensated on loss of land as the land was deemed to have no value and land is public and occupiers have only usufructuary rights[Jesse, J.M. & Chalambo, J. (2009), Background to the Land Law in Tanzania, Faculty of Law, Dar es Salaam.].
NEW TREND ON COMPENSATION
The new trend of compensation stated from 1999 to current time. This happened following the land policy of 1995 which come up with the new idea about the land value and basically as the result of the Shivji Commission of 1994 on which the commission deal with matter relating to the issue of land value and the issue of land compensation thus they come up with the New land policy of 1995[W.R Tenga and J Mramba (2008). Manual on Land Law and Conveyance in Tanzania, Dar es salaam University Press, Dar es salaam at p 102]. The land policy of 1995 suggested the areas in which compensation should payable, as per Paragraph 4.2.19 and 4.2.20of the policy that compensation should base on, Market value of the real property(land), Disturbance allowances, Transport allowances, Profits of cultivations, Cost of acquiring, for getting another land and Any other cost, expenditure incurred for carrying development of that land[The National Land Policy of 1995].
After the enactment of land Act 1999 and the village land Act 1999 the new trend of compensation started to be used as provided under Section 3(1)(g) of the Land Act[Cap 113 R.E 2002], which provide that, payment of full fair and prompt compensation and also provided the areas or items in which compensation must be payable that are, the market value, disturbance allowance, transport allowances, cost of acquiring land, interest at market rate will be charged and any other cost.
Also the Village Land Act[Cap 114 R.E 2002], under section 3(1)(g) mention that the interest in land has value and under Paragraph (h) of the same section provide for the prompt and fair compensation for any one whose customary use of land has been interfered by the state under the Act or the Land Acquisition Act[Cap 118 R.E 2002].
Following the enactment of the Land Act, two regulation were published to support the Act that are, Land (compensation Claims) Regulation, 2001[G.N 78 of 2001], Land (assessment of value of land compensation) Regulations, 2001[G.N 78 of 2001].
The Law on compensation in a situation where ones rights over the land are deprived
Basically there are wide arrays of laws that deals with compensations in the event where ones right to own land has been deprived off and this includes the followings:-
Compensation under Land Act [Cap 113 R.E 2002] and the Village Land Act [Cap 114 R.E
2002] provided under Section 3(1) (g) of the Land Act[Cap 113 R.E 2002], provide that, payment of full fair and prompt compensation and also provided the areas/items in which compensation must be payable that are, the market value, disturbance allowance, transport allowances, cost of acquiring land, interest at market rate will be charged and any other cost. Other provisions are Section 4(3), Section 19 and Section 20 (3), 156 of the Land Act.
Once the right of occupancy has been revoked, the former occupier is entitled or has right to compensation. This is clearly stipulated under Section 49 of Land Act[Cap 113 R.E 2002].That a person shall not arbitrarily be deprived of his property for the purpose of acquisition or any other purpose without the authority of the law, which shall set out conditions for fair and adequate compensation.
It however, can be shown in the case of Manyara Estate Ltd& Others v. The National Credit Agency[1990] T.L.R 9], In this case, in October 1994, the right of occupancy was revoked by the President, but under section 49 of the Land Act he was entitled to compensation for any unexhausted improvement existing on the land in dispute.
The Land Act also provides for payment of compensation to the former occupier whose right of occupancy has been revoked. Section 49 (3) provides inter alia that “ there shall be payable to the former occupier whose right of occupancy has been revoked compensation which shall equal the value of unexhausted improvements made in accordance with the terms and conditions of the right of occupancy on the land at the time of revocation.
Also the Village Land Act[Cap114R.E 2002] under section 3(1) (g) mention that the interest in land has value and under Paragraph(h) of the same Section provide for the prompt and fair compensation for any one whose customary use of land has been interfered by the state under the Act or the Land Acquisition Act.
The law also provides that all lands acquired by non-citizens prior to the enactment of the Land Act is deemed to have not value except for unexhausted improvements for which compensation may be paid as per section 20 (3) of the Land Act[Cap 113 R.E 2002]
Compensation under Land Acquisition Act [Cap 118 R.E 2002]
Where the land has been acquired by the president in respect of section 3 and 4 of Land Acquisition Act[Cap 118 R.E 2002], the occupier is entitled to compensation as per Section 11 of the Act[Cap 118 R.E 2002]. Although section 12 of the Act[Cap 118 R.E 2002]restricts compensation to unexhausted improvements, the Land Act provides room for payment of compensation to vacant ground[Cap 113 R.E 2002]. Under section 14 of the Land Acquisition Act[Cap 118 R.E 2002] in assessing compensation for any acquired land the Minister or Court must consider the following:- the value of the land at the time of the publication of the notice of acquisition. In this case the value of the land should be taken or considered separate to that of any improvement or work constructed but not improvement to be made of the purpose for which the land is acquired[Section 14(a-c) of the Land Acquisition Act].
Compensation under GN No. 78 and GN No. 79 of 2001
First and foremost, Regulation 4 of the Land (Compensation Claims) Regulations[GN No. 79 0f 2001] provides category of persons who worth compensation in the event where their rights to own land has been deprived off, and according to this regulation it includes: -
- · Holder of right of occupancy in general land or reserved land transferred to village land under section 5 of land Act Or a holder of right of occupancy in respect of land which is compulsory acquired by the president for public purposes land acquisition Act of 1967, Or an occupier in respect of right of occupancy revoked by president under Section 49.
- The holder of customary right of occupancy where the land becomes the subject of a granted right of occupancy in favour of another person, and such holder is moved or relocated under section 34 of land Act.
- Occupier of land in any urban or peri-urban area where such land is acquired by the president under provision of section 60 of land Act.
- Occupier of land obtained by consequence of disposition by a holder of granted right of customary occupancy where such occupier is refused the right of occupancy under section 54 of land Act.
Under Regulation 3, 10, 11, 12 of The Land (Assessment of value of land compensation) Regulations, 2001[G.N 78 of 2001], provides more categorically on aspect that must be carefully observed in conducting assessment. The basis for assessment of value for unexhausted improvement shall base on market value.
Disturbance allowance, that is the value of land multiplied by average percentage offered by commercial banks on fixed deposit for 12 months. Transport allowance that is the actual cost is twelve tons of luggage or road or rail within 20 km from the point of displacement. Accommodation allowance that is market rent for the building multiplied by 36 months.Loss of profit, which means the net monthly profit of the business carried out in that land times 36 months and the evidence of audit account must be shown[G.N 78 of 2001].
v Case laws relating to compensation
In the case of Mwalimu Omari and Another v. Omari A. Bilali,[[1990] TLR 9,The Resident magistrate held that plot no.60 belonged to the plaintiff and there was no compensation for the house built while the case was sub judice, MwalimuOmari appealed. It was held inter alia that the appellants erected the building knowing full well that the matter was still sub judice and that the respondent had a valid letter of offer from the Ministry of Lands. Since they did so at their own peril no compensation could legally be given to them except for the few cassavas and toilet which existed at the start of the suit.
Also in the case of RamadhaniKambi Mkinga v. RamadhaniSaidi[1985] TLR 140 , the appellant was the owner of land held under a right of occupancy but while he was in prison the respondent bought it for Shs. 4,000/=, and without effecting the necessary transfer to himself, built a house on the land and made other improvements. After the appellant was released from prison he demanded his land back. The trial court decided in his favour but ordered him to pay the respondent compensation for the unexhausted improvements effected on the land. The appellant appealed against the compensation order. High court decided that where knowingly or recklessly A enters upon B's land in circumstances that amount to a trespass and where B promptly makes protests against his entry, A is not legally entitled to be paid any compensation by /for any of the improvements he might have effected on the land in the course of the trespass; the respondent was not entitled to compensation for the unexhausted improvements because he did not enter upon the appellant's land in good faith.
Lastly, In the case of SalumJumaMzeruvsOmariUbaya[1984] TLR 31,compensation of improvement on another person land in case of double allocation of land, the respondent built on the plot of land belonging to the appellant. The respondent was asking for compensation because he did not know that the plot on which he was building had an owner and that he had his letter of offer for the same plot. The appellant on the other hand argued that the respondent was not entitled to any compensation because he was building on another person's land without even a building permit and had to be stopped from doing so by arresting his workmen on the plot.
It was heldthat there was no reason for compensation since it was not equitable to force the appellant to take a building he did not want since the respondent had developed land and since there was no compensation, the respondent could demolish his building and carry away his building materials.
CONCLUSION
Despite the presence of all these laws on compensation, but still in practice there is public cries especially on payment of full fair and prompt compensation. The experience from the practice reveals the most of time objection has been raised especially on miscalculations of compensations, for instance the case of kipawa resident had a lot of complains regarding the minimal compensation paid after the land had been acquired by president purposes i.e expansion of the airport. The situation is the same to pastoralists in or around national parks like Nkomazi game reserve, Serengeti, Ngorongoro have always seen to resist to leave the land due to the lack of sort of compensation.
References:
References:
1.Land Acquisition Act[Cap 118 R.E 2002]
2. Constitution of United Republic of Tanzania [Cap 2 R.E 2002]].
3.Land (compensation Claims) Regulation, 2001[G.N 78 of 2001]
2. Constitution of United Republic of Tanzania [Cap 2 R.E 2002]].
3.Land (compensation Claims) Regulation, 2001[G.N 78 of 2001]
