A. LAND
The perception of a lawyer and a layman might be different on reference to the term land. For the later might consider land to mean any piece of ground, physical substance or any soil whatsoever.For customary and Islamic Law perception, it is possible for some one to possess or own land without buildings and permanent trees which remain in the ownership of the developer.1 But for a lawyer, land means more than that, for example in Tanzania „land‟ includes the surface of the earth and the earth below the surface and all substances other than minerals and petroleum, forming part of or below the surface, things Naturally growing on the land, buildings and other structures permanently affixed to land.2
At common law land includes structures such as buildings and any other things attached to the soil, whether above or below the surface.3 Land transfer at common law includes not only physical soil but also all buildings permanently attached to soil. It can be construed further that mines and minerals below the surface of the earth go with the ownership of soil above them. Obviously, this is not in line with Tanzania position in which case minerals and petroleum are not part of the Soil. Even the term „ownership‟ of land is alien to Tanzania land laws. Land is acquired in the country for occupation and use.4It is the public in Tanzania which owns the land and the same has been vested in the president as trustee.5 The concept of land ownership of which in some jurisdictions gives
the owner the right to use (and abuse) land6 is not applicable in our Country. Not only that land is not owned in the real sense of ownership but also its occupation and use is subjected to some express and implied conditions7breach of which can attract fines, actions in court even revocation of the right of occupancy.8
Land must be distinguished from other types of property for a number of reasons.9Firstly land is a permanent property in which case creation of long term rights is feasible.10 Secondly, a greater varieties of rights can be created in land than in other property e.g. lease, mortgage, easement, a usufructuary right or other servitude etc. Thirdly, land can be considered as an unusual valuable asset.11 This can be evidenced from formality requirements in disposing land or interest therein. Requirements such as transaction to be in writing, use of prescribed form, approval and the like are very important in some cases in order to validate disposition of land. More over, land is an immovable property saves in rare cases, unlike most of the properties which are movable.
In England, property is categorized into two parts, real and personal property. Real property is land, primarily, freehold land and personal property covers all other properties including land held for a fixed term of years.12English classification of property is irrelevant to Tanzania because the consequences of the division have become of less importance and total abolition of whatever real property that existed.13
Societies had developed different attitudes concerning land and its associated rights. Perception on land depends on nature of land, its use and availability. In Australia, in one of the cases about aboriginal land claims, there was a feeling among aborigines that they did not own the land rather; it is the land that owned them.14 In Africa, land was a property for men in the community in which case no one could claim monopoly of the same.15But, this line of argument has not passed without conflicting views.16The most striking view is found among the indigenous people of America who believed that:
„the earth was created by the assistance of the Sun, and it should be left as it was. … The country was made without lines of demarcation and it is no mans business to divide it… The earth and myself are of one mind. The measure of the land and the measure of our bodies are the same. Do not misunderstand me, but understand me fully with reference to my affection for the land. I never said the land was mine to do with as I chose. The one who has the right to dispose of it is the one who created it. (Mcluhan T.C., Touch the Earth (Abacus, 1972, P. 54).17
Society perception on land generally is neither uniform nor static and it does change as the society develops being nourished by political aspirations.
B. LAND LAW
Land law not only that is a challenging area of law, but also interesting one. The importance of the subject is routed from the importance of land to human life. Every one in the society is interested in land in one way or another directly or indirectly. A small piece of land can attract diverse interests from different persons. E.g. A person can invest his money over that land, others live over there, some extract minerals beneath and more people use a path over it as a main – way, short-cut or as a playing ground. People can enjoy interests in land simultaneously under co-occupancy or co-ownership, or consecutively through succession.18 For a law student the subject is not less complicated. It can easily kick out of academic scene a non dutiful student. Land law is made out of different rules and Principles evidenced in statutes, by –laws even precedents.19 The nature of the subject was well explained by Kate Green & Joe Cursley that:
„The dry and legalistic façade created by the artificial language and technical concepts of land law tends to conceal the fundamental issues: land law is really just about the sharing out of our limited islands‟20
Lawyer‟s concern is, more than land itself rather than an interest in land. Interests are not necessarily the land itself consisting of earth and its fixtures but it imports abstract concepts such as leases, mortgage, freehold, usufructuary rights and easement. It can be said that land law is the law which govern and regulate land ownership, distribution and use. It is about what we can term as „land affairs‟ Obviously the above explanation is too general. It might leave many questions unanswered. Ownership or possession of land is controlled by the law. It provides what physically does land consist, who will acquire or be granted land, when to be granted and duration of the grant.21 It covers subsequent attainment of interests in the acquired or granted land; such as, leases, easement, mortgages, license, sublease etc. which are termed as „derivative rights‟ in Tanzania.22 It is enshrined with restrictions‟ and conditions placed or imposed on the land acquired or granted and the subsequent interest acquired basing on policy, consideration, development condition and technical constraints.
Citations
1. Wakfu commissioner v. Ali Mohamed Ali Nandi (950) 18. E.A.C.A. 86
2) S. 2 Land Act Cap. 113 R.E. 2002
3) Commonwealth V.N.S.W (1923) 33 C.L.R. 1
4) S. 19 LA
5) S. 4 (1) LA
6) J., Roger, Smith, Property Law (4thEdition) Longman London, 2003 P. 6
7) S. 34 LA, Also, G.N77 of 2001
8) Part VI sub-part 4 LA
9) Roger, Op. cit., P. 7
10) Roger. Ibid, P. 8
12) Roger, Op.cite., P. 7
13) S. 182 L.A.
For example in Tanzania sources of Land Law is the constitution of URT, 1977, The Land Act Cap, 113
19) R.E., 2002, Village Land Act Cap. 114 R.E. 2002, G.N. of 2001, The courts (Land Disputes settlements)
20) Act, No. 2 2002, and some cases like Lohay Akonay and Joseph Lohay v. A.G., High Court of Tanzania at Arusha. Misc. Civil cause No. 1 of 1993.
21) G., Kate, & C., Joe Land Law, creative print & Design London 2004 P. 3
22) J.G., Riddal, An Introduction to Land Law, (5theditions) Butterworths, London, 1993 P.1
