LAND LAW
(Class Materials : GMF)
THE MEANING OF LAND
Cases: Saleh bin Hadi v. Eljofri (1950) 24 K.L.R. 17
Virji v.
Abdulrehman (1950) 24 K.L.R. 24
Shaw v.
Devshi (1923) 17 K.L.R. 20
Singh v.
Singh 11 E.A.C.A. 48
Commonwealth
v. N.S. Wales (1923) 33 C.L.R.1.
Francis v.
Ibitoye (1936) 13 N.L.R. 11.
Text: R. E. Megarry, A Manual of the Law of Real Property, 5th Ed. London,
Stevens & Sons Ltd., 1975 p. 347-350.
Note: At common law the rule that an article
annexed to land becomes part of the land was relaxed in favour of a tenant for
years, and he was allowed to remove two types of fixtures :-
First, any articles
attached to the land for the purpose of carrying on his particular trade, e.g. fittings in a bar,
petrol pumps in a garage, brewing vats, the reason generally given being that
it is public policy to encourage industry.
Secondly, a tenant may remove
chattels he has fixed to a house for ornament
or convenience. Examples of articles in this class are stores
and grates, ovens and presumably now refrigerators and electric cookers. (See Woodfall Landlord and Tenant, 24th Ed. p.758). But any fixture that cannot be removed
without substantial damage and is for the permanent improvement of the house
does not come within the exception.
Agricultural fixtures: It was
held in Elwes v. Maw (1802) 3
East 38 that a farmer could not remove chattels even if they were fixed to his
holding for the sole purpose of improving his agricultural operations. In that case the tenant farmer had built at
his own cost a shed for animals, a carpenter’s shed and a fuel house each of
which he removed before the end of the lease.
He was held liable to pay compensation to the landlord. This unfortunate state of affairs was
mitigated in England by a series of Agricultural
Holdings Acts giving a right of compensation, and where that did not
apply, a right of removal.
Under the
reception provisions, the Agricultural
Holdings Act, 1908 of England would have applied in Tanzania, but it is
expressly stated not to be in force in Tanzania by the Land (Law of Property and Conveyancing: Application of English Acts)
Order, 1943 – Revised Laws Cap. 114 – Supp. 58
I. TANZANIA
Land (Law of Property and Conveyancing)
Ordinance, Cap. 114 Section 2(1) subject to the provisions of this
Ordinance the law relating to real and personal property mortgagor and
mortgagee, Landlord and Tenant and Trusts and Trustees in force in England on
the 1st day of January,
1922 shall apply to real and personal property, mortgages, leases and
tenancies, and trusts and trustees in Tanganyika and the English law and
practice of conveyancing in force in English on the day aforesaid shall be in
force in Tanganyika.
[Note: This is a Special
Reception Clause, the General Reception Clause applies English law as it stood
on the 22nd of July, 1920.
See Section 2(2), JALO, Cap. 453]
Limitations on the application of English Law
(i)
Such English law and practice is to be in force “so far as the
circumstances of the Territory and its inhabitants and the limits of (His
Majesty’s) Jurisdiction permit.” Section 2(2).
(ii)
When such English law a practice is
inconsistent with any provision contained in any ordinance or other
legislation, or Indian Act for the time being in force in the Territory, such
last mentioned provision shall prevail. Section 2(3).
Conveyancing and Law of
Property Act, 1881,
(44
& 45 Vict. C. 41) of U.K.
S.2(ii)
‘Land’ unless the contrary intention appears, includes land of any tenure, and
tenements and hereditaments, corporeal and incorporeal, and houses and other
buildings, also and undivided share in land.
[Hereditaments means real property, that
is, all property that passed at common law on an intestacy to an heir. Corporeal
hereditaments are interests in all tangible forms of realty e.g. land
itself houses, trees, incorporeal
hereditaments are rights in land such as a right of way, a right to take
crops, a rent.]
Are fixtures corporeal or
hereditaments?
Land Ordinance, Cap. 113 of
the Laws of Tanzania:
Section
2 ‘Occupier’ means the holder of a
right of occupancy and includes a native or a native community lawfully using
or occupying land in accordance with native law and custom; ‘right of occupancy’ means a title to
the use and occupation of land and ng crops a growing produce.
S.2. Unexhausted improvement means anything or any quality permanently attached to the land dit of occupancy by
the Government. After the grant
government officials enter the land and remove certain fixtures. Advise A.
Land
Ordinance, Cap. 113
Section
2. ‘Unexhausted
improvement’ means anything or any quality permanently attached to the
land directly resulting from the expenditure of capital or labour by an occupier or any person acting on
his behalf and increasing the productive capacity, the utility or the
amenity thereof, but does not include the results
of ordinary cultivation other than standing crops a growing produce.
Section 14. Every
certificate of occupancy shall be deemed to contain provisions to the following
effects:-
(5)
that the occupier binds himself
to pay to the Minister on behalf of the previous occupier, if any, the amount
found to be payable in respect of any unexhausted improvements existing on the
land at the date of his entering into occupation.
See also Land
Regulations 1948, Reg. 8 and the 1st Schedule to those
regulations.
Problem 2:
X was granted a 66 year right of occupancy in
an urban area. He expected a residential
house and installed a number of fixtures to an end.
Problem 3:
X an occupier under a 99 year right of
occupancy, sublets to Y for a 15 year term. During that period Y erects a house
and installs racks on the land for drying sisal fiber. 6 months before the end of the 15 years, Y
comes to you seeking advice on two points:-
(i)
Whether at the end of the 15 years, he will get compensation for the
house, and
(ii)
Whether he has the right to remove the racks either before or at the
end of the 15 year.
Rent
Restriction Act, 1984
Section 2(3)
For the purpose of this Act
premises on … land subject to a right of occupancy shall not be premises which
are the property of the Government, and the provisions of this Act relating to
landlord and tenant shall not apply in relation to the Republic in its capacity
as landlord.
Land
Ordinance, Cap. 113
S.23(1)
If any person shall be found in unlawful occupation of public land a
district court, presided over by a first class magistrate, within whose
jurisdiction any part of such land is situate may order such person to
surrender such land within such period and upon such terms, it any, as to the
removal of buildings, the reaping of growing crops and other matters, as to the
court shall seem just.
Land
Registration Ordinance, Cap. 334
S.2(1)
‘Estate’ means … a right of occupancy in respect of which a certificate
of occupancy has been issued, but does not include the title to any
building, tree or other thing erected on or growing out of or affixed to land
and owned separately from the land.
See Kahtijabai
v. Kassam Sundeiji Samji (1955) 22 E.A.C.A. 301 (stencil).
Freehold
Titles (Conversion) and Government Leases Act, Cap. 523.
S.25
(1) Notwithstanding the
forfeiture, surrender or other termination of a Government lease, the former
tenant may within a period of three
months thereafter enter upon the former leased land and sever and remove any
fixture which he might have severed and remove, prior to the termination of the
lease.
(2) The tenant or if the application is made
within one month of the termination of a Government lease, the former tenant,
may apply to the Court for a declaration that any fixture on the leased land
shall be deemed to be a fixture of a kind which a tenant may sever and remove,
and if the court is satisfied that the application is made in respect of a
fixture which was annexed to the land by the tenant or former tenant, or by any
predecessor in title being of kin to the tenant or former tenant, and that the
fixture possesses a special value for the tenant or former tenant or his kin,
it may declare the same to be of a kind which a tenant may sever and remove.
(3)
When any person severs or removes a fixture in pursuance of a
declaration under this section, he shall repair any damage caused by such
severance or removal … [The above Act was disapplied by the Government Leaseholds (Conversion to
Rights of Occupancy) Act 1969 No. 44 of 1969 – see sections 1, 3 and
10. See also G.N. 85 of 1970].
II. UGANDA
Judicature Act,
1967 No. 11 of 1967 (U)
Section 3(1) Pursuant to the provisions of clause (1)
of article 91 of the Constitution, the High Court shall be a superior court of
record and shall have full jurisdiction, civil and criminal, over all persons
and over all causes and all matter is Uganda.
(2)
Subject to the provisions of the Constitution and of this Act, the
jurisdiction of the High Court shall be exercised:
(a)
in conformity with the written law including any law in force
immediately before the
(b)
subject to any written law and in so far as the same does not extend or
apply, in conformity with:
(i)
the common law and the doctrines of equity;
(ii)
any established and current custom or usage; and
(iii)
the powers vested in, and the procedure and practice observed by, the
High Court immediately before the commencement of this Act in so far as any
such jurisdiction is consistent with the provisions of this Act; and
(c)
where no express law of rule is applicable to any matter in issue
before the High Court, in conformity with the principles of justice, equity and good conscience.
(3)
The applied law, the common law and the doctrine of equity shall be in
force only in so far as the circumstances of Uganda and of its peoples permit,
and subject to such qualifications as circumstances may render necessary.
(4)
Subject to the provisions of subsection (3) of this section, in every
cause or matter before the High Court, the rules of equity and the rules of
common law shall be administered concurrently; and, if there is a conflict or variance between the rules of equity
and the rules of common law with reference to the same subject, the rules of
equity shall prevail.
(5)
For the purposes of this section, the expressions “common law” and
“doctrines of equity” mean those parts of the law of Uganda, other than the
written law, the applied law or the customary law, observed and administered by
the High Court as the common law and the doctrines of equity respectively, immediately before the
commencement of this Act.
Public
Lands Act 1969, No. 13 of 1969 (U)
S. 54 - In this Act, unless
the context otherwise requires, “Commission” means the Land Commission
established by article 108 of the Constitution;
“Controlling
authority” means.
(a)
in relation to land held on a statutory lease, the designated authority
by which the land is so held;
(b)
in relation to land vested in freehold in the Commission and not let on
a statutory lease, the Commission;
(c)
in relation to land held in statutory freehold or freehold, the
Commission;
“lessee” includes sub-lessee and any person
whose title is derived from the lessee.
“public land” means any land vested in the
Commission or a public body, or granted in freehold under the former laws..
“repealed Act” means the Public Lands Act
[Cap. 201] repealed by this Act.
S.1 - It is hereby declared that, subject to the provisions of this
Act, all rights, titles, estates and interests in land and all other rights,
obligations and liabilities vested in the Commission immediately before the
Commencement of this Act, shall upon such commencement continue to be so vested
for the same estate or interest and to the same extent as they wee previously
vested.
S.17 - Subject to the provisions of this Act, a
controlling authority shall have full powers to grant estates and crate rights or interests in and to manage,
dispose of and otherwise deal with the estate or interest in public land vested
in it.
S.22(1) Without prejudice to the right of the
Commission to grant a lease of public land in a designated urban area to the
designated authority, a controlling
(5) In every lease of public
land:
(a)
there shall be implied as covenants in the lease enforceable by the
lessee against the controlling authority that:
(i)
the controlling authority has full power to grant the lease; and
(ii)
the lessee, fulfilling all covenants express or implied, shall quietly
hold and enjoy the premises without interruption by the controlling authority
or by person lawfully claiming under it, expect so far as any written law
otherwise permits;
(b)
there shall be implied, except where expressly varied or expected, as
covenants in the lease enforceable by the controlling authority against the
lessee, that he lessee shall:
(i)
keep in reasonable repair all buildings erected before the commencement
of and included in the lease and all buildings erected by the lessee and
deliver up all such buildings, subject to the provisions of subsection (8) of
this section relating to the removal of buildings of a temporary nature, in
such repair at the determination of the lease; and
(c)
there shall be implied, if the lease is a building lease, as covenants
in the lease enforceable by the controlling authority against the lessee,
except where expressly varied or excepted, that the lessee shall:
(i)
erect the buildings specified in the lease in the manner and within the
period therein provided;
(ii)
erect such buildings of good and substantial materials;
(iii)
keep the buildings so erected in good and substantial repair; and
(iv)
deliver up the buildings so erected in good an substantial repair on
the determination of the lease.
(7) In the absence of any specific covenant to the contrary in a lease
of public land, all buildings on such land, whether erected by the lessee or
not, shall, on the determination of the lease, pass to the controlling
authority without payment of compensation.
(8) Notwithstanding the
provisions of subsection (7) of this section, where a lessee of public land has
erected any building of a temporary nature on such land, not being a building
erected in pursuance of some obligations on his part in that behalf contained in
the lease, or has affixed any engine, machinery or other fixture upon or to
such land, such building, engine, machinery or fixture shall, in the absence of
any specific covenant to the contrary in the lease, be the property of and be
removable by the lessee before or within one month after the determination of
the lease, but,
(a)
before so removing any such building, engine, machinery or fixture the
lessee shall pay all rent owing from him and shall perform or satisfy all other
his obligations in respect of the land leased to him;
(b)
in removing any such building, engine, machinery of fixture the lessee
shall not cause any avoidable damage to any other building or to any other part
of such land; and immediately after the removal shall make good all damage
occasioned thereby;
(c)
the lessee shall not remove any such buildings, engine, machinery or
fixture without giving one month’s previous notice in writing to the
controlling authority of his intention to do so;
(d)
at any time before the expiration of the notice under paragraph (c) of
this subsection, the controlling authority may, by a declaration in writing to
the lessee, elect to purchase any building, engine, machinery or fixture to
which the notice relates, and that building, engine, machinery or fixture shall
thereupon become the property of the controlling authority which shall pay to
the lessee the fair value thereof;
(e)
any dispute arising to such value between the controlling authority and
the lessee shall be referred to arbitration in the prescribed manner.
(9) On the determination of any
lease of public land the lessee shall not, in the absence of any specific
covenant to the contrary in the lease, be entitled to make any claim against
the controlling authority in respect of any improvements made to the land.
(10) In this Section,
“improvement” means all work actually done or material used on, in or under
land by the expenditure of capital or labour.
S.43 Notwithstanding
any provision of the Registration of Titles Act or the absence of any
instrument registrable thereunder, the Registrar of Titles shall have all such
powers and shall of his own motion take all such steps as may be necessary to
give effect to this Act, whether by the alteration or cancellation of
certificates of title, the issue of fresh certificates of title, the issue of
fresh certificates of title or otherwise.
III. KENYA
Judicature Act, 1967, No. 16 of 1967 (K)
Commencement:
1st August, 1967. See IN 159
of 1967.
Section 3(1) The jurisdiction of the High Court and of
all subordinate courts shall be exercised in conformity with—
(a)
the Constitution;
(b)
subject thereto, all other written laws; including the Acts of
Parliament of the United Kingdom cited in Part I of the Schedule to this Act,
modified in accordance with Part II of that Schedule;
(c)
subject thereto and so far as the same do not extend or apply, the
substance of the Common Law, the doctrines of equity and the statutes of
general application in force in England on the 12th August, 1897,
and the procedure and practice observed in courts of justice in England at that
date:
Provided that the said Common Law, doctrines
of equity and statues of general application shall apply so far only as the
circumstances of Kenya and its inhabitants permit and subject to such
Interpretation and General Provisions
Act, Cap. 2 (K)
S.3(1) In this Act, and in every other written law
and in all public documents enacted, made or issued before or after the
commencement of this Act [i.e. 11th December, 1956], the following
words and expressions shall have the meanings hereby assigned to them
respectively except where there is something in the subject or context
inconsistent with such construction or interpretation, and except where it is
therein expressly otherwise provided—
“immovable property” includes land, whether covered by
water or not, any estate, right, in forest or easement in or over any land and
things attached to the earth or permanently fast need to anything attached to
the earth, and includes a debt secured by mortgage or charge on immovable
property.
Registration of Titles Act, Cap. 281 (K)
S.2 In this Act, except where there is something repugnant in the
subject or context—
“Land” includes land and benefits to arise out of land or
things embedded or rooted in the earth, or attached to what is so embedded for
the permanent beneficial enjoyment of that to which it is so attached, or
permanently fastened to anything so embedded, rooted or attached, or any estate
or interest therein.
“Proprietor” means the person or corporation registered
under this Act as the owner of land or as a lessee from the Government;
“Transfer” used in connection with land … means the
passing of that land … by act of the parties and not by operation of law, and
also the statutory instrument by which such passing is effected.
“Transmission” used in connection with land … means the
passing of such land … by operation of law or by virtue of appointment or
succession as trustee under any will or settlement or by virtue of appointment
to any office.
S.23 (1) The certificate of
title issued by the registrar to any purchaser of land upon a transfer or
transmission by the proprietor thereof shall be taken by all courts as
conclusive evidence that the person named therein … is the absolute and
indefeasible owner thereof, subject to the encumbrances, easements,
restrictions and conditions contained section (8) of see Vol. XI (1962 Revision of the Laws of
Kenya, Group 8.
S.3 In this Act, unless there is something repugnant in the
subject or context – “immovable property” does not include standing timber,
growing crops or grass.
“attached to the earth” means—
(a)
rooted in the earth as in the case of tree and shrill,
(b)
imbedded in the earth, as in the case of walls or buildings; or
(c)
attached to what is so embedded for the permanent beneficial enjoyment
of that to which it is attached.
S.8 Unless a different intention is expressed a necessarily
implied, a transfer of property passes
forthwith to the transferee all the interest which the transferor is then
capable of passing in the property, and in the legal incidents thereof.
Such incidents include, where the property is land … all
things attached to the earth;
And where the property is a house … all … things provided
for the permanent use therewith.
CHAPTER V
S.108 In the absence of a contract or local usage to the contrary the
lessor and lessee of immovable property, as against one subject to the
liabilities mentioned in the rules next following, or such of them as are
applicable to the property leased—
(h)
the lessee may remove, at any time during the continuance of the lease,
all things which he has attached to the earth, provided he leaves the property
in the state in which he received it.
S.136 Nothing in this Act contained shall effect … the construction or
operation of any grant … hereafter to be made … by or on behalf of the
Government …
Registered Land Cap. 300 (K)
S.3 In this Act, except where the context otherwise requires—
“interest” in land includes absolute ownership of land;
“land” includes land covered with water, all things
growing or land and buildings and other things permanently affixed
“proprietor” means-
(a)
in relation to land … the person named in the register as the
proprietor thereof;
S.27 Subject to the provisions of this Act--
(a)
the registration of a person as the proprietor of land shall rest in
that person the absolute ownership of that land together with all rights and
privileges belonging o appurtenant thereof.
S.4 Except as otherwise provided in this Act, no other written law
and no practice or procedure relating to land shall apply to land registered
under this Act so far as it is in consistent with this Act.
Provided …
S.163 Subject to the provisions of this Act and save as may be provided
by any written law for the time being in force, the common law of England, as
modified by the doctrines of equity, shall extend and apply to Kenya in
relation to land leases and charges registered under this Act and interests
therein, but without prejudice to the
rights, liabilities and remedies of the parties under any instrument subsisting
immediately before such application.
S.164 Upon the first registration of any land under this Act the Transfer of Property Act, 1882, of India
shall cease to apply to that land, except in relation to any dealing
entered into before the date of first registration.
Land Titles Act, Cap. 282 (K)
S.3 In this Act and in all instruments purporting to be made or
executed thereunder, except where inconsistent with the context and
subject-matter – “immovable property” includes land benefits to arise out of
land and things attached to the earth or permanently fastened to anything
attached to the earth, but does not include standing timber (other than coconut
trees), growing crops or grass.
S.20 (1) … the Recorder of Titles shall give a certificate of title
to those persons whose right to any immovable property or any interest therein
has been determined.
(a)
a certificate of ownership … which shall be granted to those persons
whose claim to an estate in fee in land has been upheld;
(b)
…
(c)
a certificate of interest … which shall be granted to persons whose
rights as owners of immovable property (other than land) … have been upheld.
S.21 … a certificate of ownership shall be conclusive proof that the
person to whom such certificate is granted is the owner of the coconut trees,
houses and buildings on the land in respect of which such certificate is
granted, at the date of the certificate unless there is noted thereon in manner
hereinafter provided a memorandum to the contrary effect.
Government Lands Act, Cap. 280 (K)
S.2 In this and in all conveyance, leases and licences and in all
agreements, notices and documents relating to Government land, expect where
inconsistent with the context – “Government Land” means land for the time being
vested in the Government by virtue of section 204 and 205 of the Constitution
(as contained in Schedule 2 of the Kenya Independence Order in Council 1963)
and sections 21, 22, 25 and 26 of the Constitution of Kenya (amendment) Act,
1964, {no. 28 of 1964].
“Unalienated Government Land” means Government Land which
is not for the time being leased to any other person …
S.40 (1) Licences to occupy
unalienated Government land for temporary purposes may be granted by the
Commissioner.
S.41 The occupant of any Government Land under a licence under
section 40 of this Act may remove any hut or other building erected by him
during his occupation of the land at any time before the licence expires.
S.71 In the absence of
special provisions to the contrary in any lease or licence under this
Act, all buildings on Government Lands leased or occupied under a licence,
whether erected by the lessee or licencee or not, shall on the determination of
the lease or licence, pass to the Government without
Provided that, in the absence of any special provision to
the contrary in the lese, in the case of a lease for term not exceeding thirty
years the lessee shall be at liberty within
three months of the termination (otherwise than by forfeiture) of such
lease to remove any building erected by him on the land leased during the
currency of such lese, unless the President elects to purchase such buildings;
and, in the event of disagreement as to the purchase price of such buildings
the same shall be determined by arbitration.
See Mgbemena v.
Onyekuru & another (1952) 20 N.L.. 100.
The
Agricultural Holdings Act 1883 of the United Kingdom; 1883 (46 & 47
Vict. C. 61) sections 3, 7, 8 and 34.
The Act, by section 35, is expressed to extend to Crown Land.
Question:
In the above Act a statute of general
application in Kenya?
Problem 4:
In 1932 X was granted 40 Year lease of
Government land (at that time known as Crown Land). He erected a two-storey building in which he
has been living. He tells you that he is
contemplating removing that building so that he may build elsewhere since he
has less than two years before the expiry of his lease. Advise
him.
(Adapted
from FIMBO/85/3-Mimeo UDSM)
Hakuna maoni:
Chapisha Maoni