INTRODUCTION
Land has been, and will continue to be the human habitat on planet Earth. It is a resource that everyone needs to have for his sustainability of life. Therefore there are various methods of accessing or acquiring land; a person can acquire land allocated by the authority, purchase, gift, Inheritance and by adverse possession. Some of these system are recognized and therefore protected by the land Acts.[1] The main discussion of this paper is the land acquired by adverse possession in context of land law in Tanzania. Adverse possession refers to the possession that is technically and wrongfully inconsistent with the title of the proper owner.[2] It means the possession which is inconstant with the little of the true owner.
The concept of adverse possession was born in England around 1275 and was initially created to allow a person to claim right of “seisin” from his ancestry. Many felt that the original law that relied on “seisin” was difficult to establish, and around 1623 a statute of limitations was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. This early English doctrine was designed to prevent legal disputes over property rights that were time consuming and costly. The doctrine was also created to prevent the waste of land by forcing owners to monitor their property or suffer the consequence of loosing title. This discussion will focus on the requirements for one to claim to have adverse possession in context of land law in Tanzania; the paper will further look various laws that affect the concept of adverse possession on customary tenure, unregistered land, registered land and the concept of adverse possession on public land.
MAIN DISCUSSION
There are certain requirements which must be met to establish a successful claim on adverse possession was highlighted In the case of Buckinghamshire cc v Moran[3]and these are requirement was adopted by the land law in Tanzania. These requirements include;
(a) Corpus possidendi (Actual possession of the property).Adverse possessor must be actual, meaning that the adverse possessor must physically occupy the land in dispute. Actual occupancy means the ordinary use of land including any actual visible means and started to behave like his property and it should not be secrete. In other words it suggests the actual control of that land. In case of Jumanne Mazebele v. Bukombe Kihongwe[4]in this case the appellant who claimed title to a piece of land by way of adverse possession but lost the claim in court. In dismissing the appeal, the court held that a person who claims the land must be in physical occupation, this is to say the enjoying of the crucial physical possession and use by the adverse possessor is crucial. This is as for example as act of building a house on the land and using it, or an act of cultivating the land for a certain purpose.
(b) Animus possidendi (The intention to posses must be obvious); this means in addition to the physical enjoyment of the possession on the premise. The intention to posses by an adverse possesses is as well significantthe claimant must show intention to possess (animus possidendi) the land in exclusion of all other persons including the true owner. The intention must be made sufficiently clear to the owner.In Powell vs Macfarlare[5] it was stated that animus possidendi involves intention in one’s own name on one’s own behalf to exclude the world at large, including the owner of the better title so far as it is reasonably practicable as the process of the law will allow.
(c) The possession must be adverse; this is usually to say in adverse possession there must be two parties who are antagonistic to each other whereby one party must be the person who is the adverse possessor and the other party claiming to be the real owner of the disputed land.
(d) Lapse of 12 years period: the claims for adverse possession can as per law stand only upon the expiration of the uninterrupted use of the land for a period consecutive twelve years by the adverse possessor thus after the expiry of such time there shall be no right to bring suit or cause of action against the adverse possession by the true owner[6]. Also in Markfield Investment Ltd V. Evans[7]it was alleged that if claim for stopping time running is not brought by the owner then upon lapse of 12 years. The possessor may bring a claim for adverse possession and may be successful. Therefore, the lapse of time bars the legal owner from challenging the occupation of the adverse possessor, the action is also within the period of 12 years provided by the customary law (limitation of proceedings) Rule 1963.
THE POSITION OF ADVERSE POSSESSION UNDER THE EARLY CONCEPT OF CUSTOMARY TENURE IN TANZANIA
The concept of customary limitation, it has unknown to early customary law, it is trite knowledge that customary jurisprudence knows no such concept that the customary system could not rationally accommodate such a concept, a stranger can occupy and use land of another without pay a rent and acknowledging the grantor title. This is due to the reasons of many writers that the idea has been much resisted everywhere in tribal areas where the people love the endless ramification of costesstretching into the limitless pass this can be witnessed in the case of Philip Mtusha v. Stephen John[8]whereby chagga law – under customary, there is no limit to the time at which land (Kiamba cha asili)cannot be claimed. Spry J, conclude this position by accepting customary law as longer as a person delays asserting his right the heavier will be burden on ptroving his case.
Although the customary law did not recognize the concept of limitation at which the adverse possessor has been on occupation over the land. In case of Kataso Kabondola v. Mulongo.[9]The court consider the point as satisfied that no such concept is known to Kerewe customary law, despite attempts made by district commissioner to introduce a period of limitation after which claim to land would be barred.
In litigation arising conflicting claims to title and as absence of remedial legislation there is a pressure on the court a remedy, three judicial attempts should be considered as (a) long possession (b) prescriptive doctrine and (c) acquiescence doctrine
(a)Long possession
Acquisition of title by long possession as it is being developed in Tanzania pay under emphasis at customary rule; the long possession can determine the time running under early customary in the case of Idd Juda Omary[10]. The concept of adverse possessor on his right to cover over the land has discussed, as chagga law, when a person plant sisal or tree of permanent nature on shamba the shamba will be taken to him no matter how long he had abandoned it.
But George CJ did not endorse that customary law application by providing that since the appellant occupied the land at least seven years that long occupation would entitle to him to posses the land in dispute.
(b)Acquiescence doctrine
This is dependent rule of estoppels which adverse possessor can continue over the land where the owner did not make any object while the act was in progress. In Duke of Leeds v. Amherst.[11]Lord Cartenham stated “If a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot after wards acquiescence” similarly was stated in the case of Ramsdem v. Dyson[12]Lord Cranworth stated inter alia in his judgment that
if a stranger begins to build on my land supposing it to be his own and i perceiving his mistake abstain from setting him right and leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that when i saw the mistake into which he had fallen it was my duty to be active and to state my adverse title, and that it would be dishonest in me to remain wilfully passive on such an occasion in order afterwards to profit by the mistake which I have prevented.
(c)Prescriptive doctrine.
This doctrine operates in manner that a long and undisturbed possession is protected; the doctrine confers a right, immunity or obligation to a person by reason of lapse of time. Prescriptive principle have been applied in customary law jurisprudence by court in Africa since colonial period
So as we have seen above that the issue of what amount to a long occupation was a challenge in minds judger as we have seen in the case of Iddi Juda Omary[13]where the judge in deciding the case suggested that the long occupation should be at least 7 years, this brings an idea that even another judge could suggest otherwise that the long occupation should be two years or six years. So in eliminating those contradictions in ascertaining what amounts to a long occupation there emerged the need of the introduction of the law of limitation.
THE POSITION OF ADVERSE POSSESSION UNDER THE CURRENT CONCEPT OF CUSTOMARY TENURE IN THE CONTEXT OF TANZANIA
The issue of limitation on time was unknown under the customary tenure under the doctrine of prescription but the introducing of the limitation rules operated to super code this doctrine as for instancethe limitation of time for the adverse possessor to acquire title over the land was firstly provided under Customary Law (Limitation of Proceedings)G.N. No. 436/1963 and the Customary Law (Limitation of Proceedings) Rules GN. No. 311/1964 item No. 6 in the Schedule, which states that in any proceeding to recover possession of land, should be filed within 12 years from the day the right accrues. This can also be witnessed in the case of
I am also of the view that the appellant acquired the title to the land in dispute by long
Possession. It is common knowledge that the appellant in this case became in possession of the land in dispute in 1966 when he retained it. He had uninterrupted possession of that land from 1966 till 1986 (some 20 years later) when the four respondents filed this B suit. According to the Customary Law (Limitation of Proceedings) Rules GN. No. 311/1964 item No. 6 in the Schedule, any proceeding to recover possession of land should be filed within 12 years from the day the right accrues. Since it is contended that the appellant was in adverse possession of that piece of land since 1966, then the four C respondents or the clan council should have sued the appellant within 12 years from 1966. But that was not done and so the appellant acquired a title to that piece of land after the expiry of the 12 years.
The concept of adverse possession is also provided under the Land Registration Act[15]which inter alia provides that “for the avoidance of doubt, it is hereby declared that an application for first registration may be made by a person claiming to have acquired a title to a registrable estate by adverse possession or by reason of any law of prescription” this means that the land acquired under adverse possession can be registered if it conform with the law of limitation Act[16]which requires the adverse possessor to be in possession of the disputed land for a period of 12 years uninterrupted.
An application for first registration may be made by a person claiming to have acquired a title to a registrable estate by adverse possession or by reason of any law of prescription. The Registrar can only allow application for registration after being satisfied that a good title has been shown. He must however not allow any application until after the expiration of two months from the date of publication of the advertisement in the Gazette relating to the application. Where he has received being heard unless the notice of objection is first withdrawn or the application is amended to comply with the notice of objection.
Section 38 of the Limitation Act[17] limits acquisition by adverse possession of an interest / estate in any public land and interest/estate acquired on land other than public land upon expiration of the right of occupancy under which the land is held where the land is not held under right of occupancy on reversion of the land to the president. There are provisions which cover the running of time for future interests.
Also in the of Lasack s/o Nguvumali v. Petro s/o Bikulako (substituted by Mtalikwa s/o Bikulako)[18], in which the Respondent planted permanent crops (Coffee and Eucalypty trees) on his land and he abandoned the land then the appellant took possession of the land for more than 30 years hence claimed to be the legal owner of the land, the appellant based his claim on the long user of the shamba without interruption. Whereby Onyiuke, J. held that adverse possession cannot defeat title of original occupant however long the land was under the adverse possessor where the real owner of the land has planted permanent crops.
However the doctrine of adverse possession cannot be applied in public land as provided under section 38(a) of the law of limitation Act[19]which states that no person shall become entitled to an estate or interest in any public land by adverse possession; thus adverse possession can only occur in private land, this quotation can be proved in the case of Jayantilal P. Rajan v. City Council of Dar es salaam[20]which the court held that no person can acquire prescriptive right over land against the Government.
Although the doctrine of adverse possession is in the inconsistence with the right of the legal owner but in actual situation have some significance in its application such as;
Ø To ensure that the land remains marketable. Since if the land remain idle it remain barren land,
Ø Unregistered title depends on possession. If not possession squatter may enter the land.
Ø The law can prevent injustice especially where the squatter has enter land innocent and mistakenly having believing that land is idle. The squatter can establish title
Ø The squatter may apply the land to be his or her name. The two Acts are silent on adverse possession. But the act mentions abandonment of land. As in section 35 of village land, the village may reallocate to the needy person of land act if a person is outside for less than 5 yrs. And leave the land undeveloped.
3. CONCLUSSION
Generally, the position and rights depend on the nature and period of the occupation of land whereby during the colonial era before the enactment of law of limitation Act, the concept of customary tenure under customary law had to depend on the circumstances of the occupation and use of land whereby every judge has do decide on his own discretion.The situation has to change after the enactment of new law of limitation Act whereby the position and right of adverse possessor is determined by law. This will encourage the existence of justice between the adverse possessor and the original owner, and it will lead to justice to be done and manifestly to see that it has been done in all disputes related to land.
CITATIONS
[1] Rwegasira, A. (2012). Land As A Human Rights, A History of Land And Practice in Tanzania. pp. 94 - 117
[3] [1990] Ch 623(CA)
[4] Rwegasira op.cit p. 113
[5] (1977) P&CR 38
[6]This is per section 2 of the customary law (limitation of proceedings) Rule 1963, and the 3rd columns of the first schedule of the law of limitation Act cap 89 RE 200)
[7](2001) 1 WLR 1321
[8] L.C.C.A No.59/1962; 1963 Digest 229
[9] Appeal No. 49/1952; 1953 Digest, 7 Wakerewe – Ukerewe District Mwanza Region.
[10] (1965) L.C.C.A 83/1965
[11] (1846) 2PH 117 at 125 or at page 551 James and Fimbo
[13] (1965) L.C.C.A 83/1965
[15] [Cap 334 R.E 2002]
[17].ibid
[18] (1972)HCD 139
BIBLIOGRAPHY
STATUTES
The Limitation Law Act [Cap 89 R.E 2002]
Land Registration Act[Cap 334 R.E 2002]
Customary Law (Limitation of Proceedings) G.N. No. 436/1963
CASES
Buckinghamshire cc v Moran 1990] Ch 623(CA)
Corea .v.Appuhamy (1912) A.C 230
Iddi Juda Omary(1965) L.C.C.A 83/1965
Jayantilal P. Rajan V City Council of Dar es salaam [1983]T L R 385(HC)
Jumanne Mazebele v. Bukombe Kihongwe
Kataso Kabondola v. Mulongo. Appeal No. 49/1952; 1953 Digest, 7 Wakerewe – Ukerewe District Mwanza Region.
Lasack s/o Nguvumali v. Petro s/o Bikulako (substituted by Mtalikwa s/o Bikulako) (1972) H.C.D 139.
Philip Mtusha v. Stephen JohnL.C.C.A No.59/1962; 1963 Digest 229
Powell vs Macfarlare(1977) P&CR 38
Thomas Matondane V Didas Mawakalile & 3 Others[1989] TLR 210 (HC)
BOOKS
Rwegasira, A. (2012). Land As A Human Rights, A History of Land And Practice in Tanzania. Dar es Salaam: Mkuki Na Nyota
James, R.W (1971), Land Tenure and policy in Tanzania, Dar es Salaam: East Africa Literature Bureau
