Customary and granted land right of occupancy by datius didace

LAND LAW
CUSTOMARY AND GRANTED LAND RIGHT
OF OCCUPANCY.
ENGINEERED BY:
DATIUS DIDACE
Contacts:
Email: datiuced115@gmaiul.com
Visit: https://mzumbeuniversity.academia.edu/Datius_Didace

Prepared by: DATIUS DIDACE (Amicus Curiae)
CUSTOMARY AND GRANTED LAND RIGHT OF OCCUPANCY
Land means those parts of the surface of the earth that are capable in law of being owned and
are within the court jurisdiction. Generally, ownership of the lands includer the airspace above it
and the subsoil below (a coelo usque and centrum; from the heaven to the centre of the earth).
For the purposes of the land law, Land Act1, Defines land as including mines, and minerals
(whether or not owned seperately from the surface), buildings, and most interest in land. Chattels
fixed to the land so that they become part of it are also treated in law as land, under the maxim
Quicquid Plantatur Solo, Solo
Granted Right of occupancy; the right of occupancy of land in tanzania includes the
right of disposition grant of right of occupancy, includes right of disiposition as provided for
under section 22(1) (I) of Land Act. It is provided that (1) a granted right of occupancy shall be
(I) capable of being subject of dispositions. Land Occupation under the Land Act
TYPES OF GRANTED RIGHT OF OCCUPANCY
The Rights of occupancy can be categorized on the basis either of duration or function.
(i) The time/duration classification This category includes, long term rights of occupancy
(99 years), short term rights of occupancy (less than 99 years but not less than 5
years) and periodic term rights of occupancy (year to year or not more than 4 years).
(ii) Functional classification Under the functional classification, the rights of occupancy
includes:- Agricultural, Pastoral Land, Mixed Agricultural And Pastoral Land,
And Building Purposes.
The land occupation in Tanzania The Act provides for the right to occupy land on individual
basis or in association with others. Such rights are granted rights of occupancy and derivative
rights. Both rights are available to non-citizens individually or where they form majority in the
shareholder of a body corporation provided such grant is for Investment purposes under the
Tanzania Investment Act 1997. The law also provide room for partial transfer of interest by a
1
[Cap 113 RE 2002]

citizen for purposes of investment approved under the Tanzania Investment Act, 1997 in a joint
venture to facilitate compliance with development conditions. Non-citizen cannot be allocated
land for any other purpose than investment. If an application for a right of occupancy or a
derivative right, which is made by a non citizen or a foreign company, is for residential purposes,
use of such land shall be secondary or ancillary to the investment approved under the Tanzania
Investment.
Incidents of the Granted Right of Occupancy
These are provided under section 22 of the Land Act. The incidents define the granted rights of
occupancy as to be granted by the president, in general or reserved land, of the land which has
been surveyed, has to be registered under The Land Registration Act 2 , to be valid and
indefeasible, for a period of up to but not exceeding 99 years, at premium, for an annual rent,
subject to conditions, liable to revocation and liable to compulsory acquisition by the state for
public purposes subject to the prompt payment of compensation. The granted right of occupancy
does not confer water rights, rights over the foreshore, mineral rights, and rights to extract gas.
Section 23 of the land Act aimed at solving the squatter problem. Residential licence can be
granted to a person who occupies land in non-hazardous land and reserved for public utilities,
surveyed land, urban or peri-urban area for a given period of time. Individuals entitled to this
right are those who have occupied land as their home without official title for not less than 3
years. A residential licensee who has occupied land with his family for more than 3 years is
entitled to compensation where land is acquired for public purpose under the Land Acquisition
Act of 1967. A residential licence is not assignable, it binds the successor in title to the licensor
who obtains the land with actual or constructive notice of the licence, where it has been enjoyed
for not less than three years, it has to be compensated if land is to be acquired for a public
purpose or where the occupier is to be removed from the land as if that person or family had a
right of occupancy in the land.
2
Cap 334 RE 2002

Powers of Local Government Authorities in Granting
Residential Licence A Local Government Authority can grant a residential licence subject to the
following conditions. (a) to any person occupying land without official title or right within the
area of jurisdiction of that local authority as his home;(b) for a term which shall not be less than
six months and not more than two years which may be renewed for a similar term; and (c)
subject to any conditions, including conditions as to the payment of any fees or charges which
may be specified in the licence or which may be prescribed.
Application Process for a Granted Right of Occupancy
After the application has been made it will be determined by the commissioner and any person
who is aggrieved by the decision will be allowed to appeal to the minister. The factors to be
considered in determining the application includes; the type of land required and where it is
situated, citizenship, purpose / use of land applied disclosure, date and name etc. Where it has
been determined that a right of occupancy be granted to the applicant a letter of offer will be
issued by the commissioner or an authorised officer. The applicant shall accept the offer and
where the commissioner determines to grant a right of occupancy to the applicant he shall issue a
certificate referred to as a certificate of occupancy issued in the name of the president. The letter
of offer is an important legal document in view of the National Land Policy, policy
(i). The approach follows the broad outlines of the law of contract applicable in Tanzania where
an offer is followed by an acceptance. The Commissioner may withdraw a letter of offered in
order to ensure that this power is not abused compensation may be payable to the offeree if loss
is caused to her/him.
Conditions on the Right of Occupancy
A right of occupancy is normally accompanied with conditions. The conditions are one of the
ways in which the Government can ensure control and regulate development in land properly
used, the conditions can facilitate orderly land-use planning with the support of planning law

Length of the Term of the Granted Right of Occupancy
As noted, the duration of the right of occupancy is definite. A right of occupancy may be granted
for a term up to but not exceeding ninety-nine years; for a term together with an option for a
further term or terms which together with the original term may be up to but shall not exceed,
ninety-nine years; or from some lesser periods. Where the right of occupancy comes to an end
through afflux ion of time the person or organization occupying the land shall if complied with
the terms and conditions be offered a renewal of that right of occupancy before being granted to
any other person.
Change of Use
An occupier of land may apply to the commissioner for a change or variation to that right of
occupancy so as to enable him to undertake developments or use of that land or disposal of the
whole or part of that land in connection with the development of that land which is not permitted.
In order for an approved change of use to take effect it must have been endorsed on the
certificate of occupancy, signed by the commissioner with his official seal and all additional rent
have been paid.
Disposition of Right of Occupancy
Generally, a disposition of a right of occupancy does not require the consent of the commissioner
or authorized officer instead it requires notification. Once the commissioner has received the
notification he may issue the parties a notice requiring them to submit additional information or
apply for approval. It need to be stressed at this juncture that what section 36(2) intended was to
provide room for the government to either opt requirement of consent or approval. The Minister
vide GN 74/2001 made regulations that differentiated between categories of disposition that
require approval and those that do not require approval.
Therefore, the old requirement of consent has now been dispensed with. What has been adopted
in the law is approval and not consent. Perhaps a word on the legal difference between the two is
apposite. Although practically there seem to be no difference between consent and approval,
impliedly consent require the fulfilment of certain conditions before fundamental steps are taken
while approval signifies the non-delegable power of the Government as the superior land lord to

sanction any transaction affecting a right of occupancy. As it can be noted the approval is not as
restrictive as consent but a mechanism to ensure that formalities are complied with. As provided
under section 37(1) of the Land Act, the commissioner can approve categories of disposition.
These are:- where the assignment of right of occupancy granted to the assignor is less than 3
years before the proposed assignment is to take effect, a loan granted by a lender, exercise of the
on the security of mortgage, disposition of a right of occupancy or lease in the exercise of the
power of sale or lease.
According to section 39 (1) of the Land Act an application for a grant of approval for a
disposition is (a) made on a prescribed form; (b) signed by all the applicants; (c) accompanied by
any other information which is prescribed or which may be required by the Commissioner; (d)
accompanied by any fees which may be prescribed. A disposition which has been carried out
without approval of the commissioner is inoperative. The requirement for approval under this
section does not absolve an occupier other requirement to obtain any other consent, approval,
permit, licenses, or other authorization in respect of that disposition or for the use and
development of the land to be acquired through that disposition under any other law. The
commissioner can approve sale of a bare land if such sale complies with the provisions of section
9 of the Land Act, The sale of a bare land may be made to a citizen of Tanzania. But where the
land has been granted upon conditions, the purchaser must agree to comply with development
conditions to make the sale lawful. Such sale can be by auction or tender, and it can be of a
mortgaged land.
Breach of Conditions of Right of Occupancy
A breach of condition requiring continuous performance arises as soon and continue as long as
the condition is not complied with. This means failure to comply with the obligations or
liabilities constitutes a breach of the condition. Where the occupier of land has breached the
conditions of the right of occupancy certain consequences follow. The law empowers the
President to revoke the right of occupancy for good cause. Good cause includes breach of
condition contained in the right of occupancy. Other good causes include abandonments (un-
used) for 2 years, attempted disposition of the right of occupancy to a non-citizen contrary to the
Act and any other law etc. A right of occupancy which has become liable to be revoked ceases to
be liable if the breach is subsequently remedied.

Fine for Breach of Condition
Where breach has arisen the commissioner may serve a notice on the occupier to show cause as
to why a fine should not be imposed upon him in respect of such breach. The ocupier is
supposed to respond to the notice within a specified time. If the occupier has not committed such
breach the commissioner may suspend the payment of any fine for 2 years and if he does not
commit fraud within such period of time the fine will lapse and won’t be payable anymore. In
Sarjit Singh v Sebastian Christom3. It was stated that the grant of Right of Occupancy is not
automatic as some people tend to think, or would it necessarily follow after the offer is
communicated. A right of occupancy is created by the approval of the applicant's application for
the grant of the same (i.e. a right of occupancy) and the acceptance by the applicant of the
granted right; One first gets an offer, the offer must then be accepted. Once it is accepted the real
title is granted. A right of occupancy over a plot is granted by a Letter of Offer and then accepted
by the offeree. The latter must pay the requisite fees and supply the information required in the
letter of offer to constitute acceptance on his part. Once this is done a right of occupancy is
created and granted to the grantee.
Likewise, revocation must be done by someone who has power to revoke titles otherwise it will
be of no effect. In the case of Patman Garments Industries Ltd. v Tanzania Manufacturers
Ltd4. In Colonel Kashmiri v Naginder Singh Matharu5. The respondent was allocated a piece
of land by the Urban Planning Committee on 18th November, 1980 on condition that he pays the
necessary fees within thirty days from date of offer. He was delayed in paying the fees by the
land officer who told him to wait until certain matters concerning resurvey of the surrounding
areas were completed. Two months after the respondent was allocated the plot, the appellant was
also allocated the same plot. The trial judge found that the respondent obtained the plot through
approved channels and the late payment of fees by him was duly authorized. The appellant's
application, on the other hand, did not follow the proper procedures and was not approved by the
3
(1988) TLR 24
4
(1981) T.L.R. 30
5
(1988) TLR 163

Director for Land Development Services. In Rajabu Hassara v Saraya Rashid6. The appellant
was offered the right of Occupancy in respect of a certain plot in 1968. The Right of Occupancy
was eventually revoked by the President for alleged non-compliance with the conditions
stipulated in the Right of Occupancy in question. The crux of the appeal is whether or not there
had been "good cause" for the revocation of the Right of Occupancy, following which the said
plot was reallocated to the respondent. It was held inter alia that non-compliance with the
conditions stipulated in the Right of Occupancy constitutes "good cause" for the right to be
revoked. In Agro Industries Ltd v AG 7 .it was stated that notice before revocation was
important and the whole purpose of issuing a notice to revoke a right of occupancy is to afford a
party an opportunity to put up a case against the proposed revocation.
customary right of occupancy;
Customary right of occupancy means right of occupancy created by means of the issuing of a
certificate of customary right of occupancy under section 27 of the Land Act and includes
deemed right of occupancy, must have been allocated by Village Council. Deemed right of
occupancy on the other hand means the title of a Tanzanian citizen of African descent or a
community of Tanzanian citizens of African descent using or occupying land under and in
accordance with customary law. It can be acquired under customary law through inheritance,
clearing a virgin forest, purchase. Customary right of occupancy therefore includes land
allocated by the village council and land acquired under customary law (e.g through purchase,
clearing forest, gift inheritance) and held by villagers. It is important to be borne in mind that the
tenure that applies in villages is customary tenure. Such tenure include rights allocated by village
councils as it shall be dealt in this chapter and deemed rights which are not allocated by the
Village Council. Such rights are more informal and can be acquired through the means stated
above. A discussion on the application procedure will thus focus on the rights granted by the
Village Council as the custodian of village land and not deemed right of occupancy. One may
however decide to obtain a certificate of customary right of occupancy for his deemed right.
Section 12 of The Village Land Act divides village land into three groups. The groups are:-
communal village land , occupied or used land and occupational land. Communal village land
6
(1983) TLR 111
7
(1994) TLR 43

and occupational land may be made the subject of a grant by a village council to the occupier of
that land or a citizen who is a villager or a group of citizens who are villagers or any other
citizens by means of a document to be known as a certificate of customary title. The
occupational land may also be the subject of derivative right granted by a village council. Village
Land can be occupied by villagers and non villagers. Non villagers include non- village
organisation. Such organization include;- a government department or any office or part of it; a
public corporation or other parastatal body or any office, part, division or its subsidiary body;
and a corporate or other body, a majority of whose members or shareholders are citizens
registered or licensed to operate under any law for the time being in force in Tanzania applicable
to that corporate or other body which does not consist of a majority of the members of the village;
or any similarly composed subsidiary of that corporate or other body.
Where a non-village organisation has occupied village land under a granted right of occupancy,
before the commencement of the Act that granted right of occupancy shall, continue although it
exists in village land, for the remainder of its term. In such a case the Commissioner shall
continue to be responsible for the management of the right of occupancy. But if the village
council has managed the village land in an efficient manner to the satisfaction of the
Commissioner he may,delegate his functions of managing a right of occupancy in writing to that
village council subject to any conditions which he shall think fit to include in the instrument of
delegation. After the coming into operation of the Act, any non-village organisation which
wishes to obtain a portion of village land for the better carrying on of its operations may apply to
the village council for that land, which shall recommend to the Commissioner for the grant or
refusal of such grant
Applicable Law in Customary Rights of Occupancy
Section 14 of The Village Land Act8 defines the land which can be held under customary right
of occupancy to include any village land and any general land occupied by persons who
immediately before the coming into operation of the Act held that land under and in accordance
with a deemed right of occupancy. It has been further outlined that a person who has occupied
land for not less than ten out of twelve years immediately preceding the enactment of the Act in
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CAP 114 RE 2002

an urban or peri-urban area as his principal place of residence and does not occupy that land as a
tenant of another person to whom the Urban Leaseholds (Acquisition and Regrant) Act could
apply, or under a granted right of occupancy, will be deemed to have occupied that land under a
customary right of occupancy. Under the provisions of section 20(1) and (2) of the said Act the
law applicable on any matter concerning customary rights and obligations of a person, or a right
of group of persons occupying land under customary right of occupancy is customary law. 268 In
view of that any rule of customary law and any decision taken in respect of land held under
customary tenure, must take into account customs, traditions, and practices of the community
concerned to the extent that they are in accordance withthe provisions of sections 9 and 9A of the
Judicature and Application of Laws Act. Any decision that denies women, children or persons
with disability lawful access to ownership, occupation or use of any land held under customary
tenure is void and in operative.
Application Procedures for Customary Right of Occupancy
Application for a customary right of occupancy is made to the Village Council of the respective
Village. There are two types of applicants: -
Ordinarily residents in the village and non ordinary residents in the village. Ordinary resident in
a village includes:- (a) an individual person, a family unit, a group of persons recognised as
such under customary law or who have formed themselves together as an association, a primary
cooperative society or as any other body recognised by any law which permits that body to be
formed, who is or are villagers, (b) a divorced person who prior to the marriage breakdown was
a villager and has left for not less than two years, his or her spouse, and any citizens. Non-
ordinary residents in the village include a person or group of persons not ordinarily resident in
the village. Application for a customary right of occupancy must be:- (i) made on a prescribed
form; (ii) signed by the applicant; or where the application is made by a family unit, signed by
not less than two persons from the family unit; or where the application is by a group of persons
recognised as such under customary law, signed by not less than two persons who are recognised
by that law as leaders or elders of the group; or where the application is by a group of persons
formed into an association, a primary cooperative society or a body under a law which
recognises that body, signed by not less than two duly authorised officers; where the applicant is
a person or group of persons referred to in subsection (2); signed by not less than five villagers

who are not related to any of those applicants or a duly authorised agent of any of the applicants.
iii) The application must be supported by a declaration concerning any other land in Tanzania
held by the applicant; (iv) Accompanied by any documents and information which may be
prescribed or which the village council may require; (v) Accompanied by any fee which may be
prescribed; (vi) Where the applicant is a person or group of persons with no ordinary residence,
accompanied by a signed and witnessed statement that the applicants intend to establish or
commence the construction of their principal place of residence in the village within three
months of obtaining a customary right ofoccupancy; (vii) submitted to the village council or its
authorized officer.
Determination of Application for Customary Right of Occupancy
Determination of applications for customary right of occupancy is done by the village council
within 90 days of the submission of an application or within 90 days of the submission of further
information or a satisfactory explanation for its non-availability.
Factors to Take into Account in Determining Application for Customary Right Occupancy
In determining whether to grant a customary right of occupancy, the village council must
consider certain factors. The factors include:- (a) any decisions that have been reached by any
committee or other body on the adjudication of the boundaries to and rights in the land which is
the subject of the application for a customary right of occupancy, (b) any guidance from the
Commissioner concerning an application from a non-village organisation; (c) equality of gender
ie (i) not to treat an application from a woman, or a group of women less favorably than an
equivalent application from a man, a group of men or a mixed group of men and women; and (ii)
not adopt or apply discriminatory practices or attitudes towards any woman who has applied for
a customary right of occupancy.
Application from Non Village Organizations
Before dealing with an application from a non-village organisation, the village council must seek
guidance from the Commissioner. In giving the advice the commissioner takes into account-(i)
any advice which has been given to the application by the district council or as the case may be
the urban authority having jurisdiction in the area where the village is situate (ii) the contribution

that the non-village organisation has made or has undertaken to make to the community and
public facilities of the village; (iii) the contribution to the national economy and well-being that
the development for which the right of occupancy is being applied for is likely to make; (iv)
whether the amount of land in respect of which the non-villag Organisation is seeking a right of
occupancy is so extensive or is located in such an area that it will or is likely to impede the
present and future occupation and use of village land by persons ordinarily resident in the village;
(v) any other matters which may be prescribed.
Where the application is from a person or group of persons ordinarily resident in the village, the
Village Council must have regard to: - (i) where the applicant already occupies village land
under a customary right of occupancy whether the allocation of additional land under a
customary right of occupancy would cause that applicant to exceed the prescribed amount of
land which a person or group of persons may occupy in that village; (ii) where applicant already
occupies land under a customary right ofoccupancy, whether all the terms and conditions subject
to which that right of occupancy is held and all other regulations relating to the use of that land
have been strictly complied with and if they have not, the reasons for any noncompliance (iii)
whether the applicant has or is likely to be able to obtain access to the necessary skills and
knowledge to be able to use the land applied for productively and in accordance with the terms
and conditions subject to which the customary right of occupancy will be granted and all other
regulations applying to the use of the land for which the right of occupancy is being applied for;
(iv) the extent and manner in which the applicant, if an individual, intends to make provision for
any dependants that the applicant may have or will, if the applicant dies, have out of the land; ( v)
any other matters which may be prescribed.
Together with the advice from the Commissioner where the applicant is a non-resident person or
group of persons the Village Council must consider the following:- (i) the amount and location
of the land the applicant is applying for; (ii) the purpose for which the applicant is intending to
use the land and whether that purpose accords with any village development or land-use plan; (iii)
the matters referred to in subparagraphs (i) and (iii) of paragraph (d); and subparagraphs (iii) and
(iv) of paragraph (e); (iv) any other matters which may be prescribed. After considering all the
necessary factors the Village Council can grant or refuse to grant in respect of all or a part of the
land applied for a customary right of occupancy to the applicant. Where an application is refused,

the applicant can request the village council to furnish him with a statement of reasons for the
refusal.
Offer of Customary Right of Occupancy
Where a village council has determined to grant a customary right of occupancy to an applicant,
it is required to send or deliver to the applicant an offer in writing. The offer must be signed by
the chairman and secretary of the village council, in a prescribed form, setting out the terms and
conditions subject to which it will grant that customary right of occupancy to that applicant
Acceptance of the Offer
Where an applicant has received an offer in writing he is required within not more than 90 days
to reply in writing and sign in the prescribed form either (a) accepting that offer or (b) refusing to
accept that offer, and send or deliver that reply to the Village Council or its authorized officer.
The acceptance of an offer may be made conditional. A conditional offer will only be effective
once the conditions for its acceptance are substantially complied with. For instance, the offer
may be conditional upon the payment of a sum of money by way of a premium, an advance
payment of rent, a deposit or any tax or due to the village council or any other person or
Organization named in the offer.
In such a case acceptance shall not operate to conclude a contract for the grant of a customary
right of occupancy unless and until that sum of money is paid in full to the Village Council.
Once the Village Council has received a sum of money as required, it must immediately provide,
a receipt for that payment to the person who made that payment. Where at any time it is
discovered that the customary right of occupancy was affected by a corrupt practice, that
customary right of occupancy shall be deemed to be void and of no effect. The grantee of that
void customary right of occupancy shall, immediately become a trespasser on that land, liable to
suffer penalties applicable to trespassers. He can also be sued for his corrupt practices under any
relavant law. Where a contract of a customary right of occupancy has been concluded, the village
council is required within not more than ninety days of that conclusion, grant a customary right
of occupancy to the applicant who accepted the offer referred to in section 23 by issuing a
certificate, to be known as a certificate of customary right of occupancy. A certificate of
customary right of occupancy has to be (a) in a prescribed form; (b) signed by the chairman

and secretary of the village council, (c) signed or marked with a personal mark by the grantee of
the customary right of occupancy to which it relates at the foot of each page of the certificate,
and (d) signed, sealed and registered by the District Land officer of the district in which the
village is situated.
Duration of Customary Right of Occupancy
Customary right of occupancy may be granted for different durations. Generally, in a definite
term. The common durations under customary right of occupancy are:- (a) for a term which may
be indefinite (without time limit) or any length of time less than an indefinite term(for a time
limit) to a person who is a citizen, or a group of persons all of whom are citizens. (b) for a term
together with an option for a further term or terms which together with the original term may be
up to but shall not exceed ninety-nine years (a maximum of 99years); (c) from year to year or for
periods of less than a year determinable by the village council by one year's notice or less and
whether or not the grant includes an initial fixed term it does not exceed four years.
Option for Further Term
Where a right, of occupancy has been granted for a term certain, with or without an option for a
further term or terms certain no reduction in the length of that term certain or the term or terms
certain contained in the option or options can be made to or introduced in the option or options or
be made to or introduced into that right of occupancy by the village council without the
agreement of the occupier.
The village council may require the payment of an annual rent for customary right
occupancy
Conditions
Every customary right of occupancy shall be granted subject to conditions. Any person who
signs a certificate of customary right of occupancy bind himself and the group he represents to
observe and comply strictly with each and every condition contained in that certificate of
customary right of occupancy. Implied Conditions in customary rights of occupancy includes:- (a)
use and take steps to ensure that those persons occupying and working the land with the occupier
or occupying and working the land with his permission will:- (i) keep and maintain the land in

good state; and (ii) in the case of land to be used for farming, farm the land in accordance with
the practice of good husbandry customarily used in the area; and (iii) in case of land to be used
for pastoral purposes, use the land in a- sustainable manner in accordance with the highest and
best customary principles of pastoralism practiced in the area; (b) Obtain any permissions that
are required to be obtained before any buildings are erected; (c) Pay any rent, fees, charges, taxes
and other required payments due in respect of his occupation of the land as and when such
imposts fall due; (d) Comply with all rules, including all rules of customary law and all by-laws
applicable to the land and all lawful orders and directions given to him by the village council or
any person acting with the authority of the village council relating to his use and occupation of
the land or any orders of any local or other authority having jurisdiction over land in„ the area
where the land is situate or any orders of any officer exercising powers under this Act; (e) Retain
and keep safe all boundary marks, whether natural or otherwise on or at the boundaries to the
land; (f) Remain residing in the village but where he is to be temporarily absent, make all proper
arrangements for the land to be managed and used in accordance with the conditions set out in
the Act. According to section 48 of the Land Act no grant of a customary right of occupancy can
be made to any person, group of persons or non-village organization unless and until the
boundaries of and interest in that land have been adjudicated. Except is only where the
boundaries and interest in land is registered under any law applicable to the registration of
village land, or the boundaries and interests in land are fully accepted and agreed to by all
persons with an interest in that land. There are three types of adjudication namely; spot, village
and District adjudication.
Disposition of Customary Right of Occupancy
A transfer of customary right of occupancy from a villager to another does not require approval
but notification to the Village Council. An assignment of a customary right of occupancy may be
made to a person or group of persons not ordinarily resident in a village if and only if: (a) the
village council approves of the assignment; (b) there is an agreement prior to the assignment; (c)
in event of termination of the agreement the assignment shall be made to a citizen etc.
The parties to a proposed assignment shall notify the village council on a prescribed form of that
proposed assignment not less than sixty days before it is proposed The village council shall
disallow an assignment which:- (a) would result in the assignee occupying an amount of land in

excess of the prescribed maximum for that village; (b) would operate or would be likely to
operate to defeat the right of any woman to occupy land under a customary, right of occupancy, a
derivative right or as a successor in title to the assignor; (c) would result in the assignor
occupying an amount of land insufficient to provide for his livelihood or where he has a family
or other dependents, for their livelihood; (d) is to be made to a person or group of persons
referred to in subsection (2) etc. A disposition of a derivative right shall require the approval of
the village council having jurisdiction over the village land out of which that right may be
granted. The grant of a lease, a licence, a usufruct or an equivalent interest in customary law
from year to year or for a lesser period to a person ordinarily residing in the village from a
person ordinarily residing in the village etc shall not require the approval of the village council.
Surrender of Customary Right of Occupancy
A villager or group of customary villagers or any other person or persons holding a customary
right of occupancy, may, subject to the provisions of section 35 Village Land Act, surrender the
customary right of occupancy which has been granted to him or them. Where land has been
surrendered, it may be re-granted upon two options subject to a certain order. In the first option
where the person who has surrendered the customary right of occupancy is a man (i) his wife; (ii)
where he has more than one wife, his wives in order of seniority; and (iii) where he has no wife
or all wives have declined to accept the offer, his defendants. In the second option where the
person who has surrendered the customary right of occupancy is a woman (i) her husband; (ii)
where she has no husband or is divorced from her husband or her husband has declined to accept
the offer, her dependants in accordance.
Breach of Condition of Customary Right of Occupancy
A breach arises where a condition is not complied with. Types of breach, breach of a condition
requiring continuous performance, breach of a condition subject to a fixed term, failure to fulfil
any obligation in a condition requiring fulfilment of two or more separate obligations, failure to
comply with regulations made by relevant authorities in a given area, and failure to comply with
any rule of customary law applicable to the relevant land.

Remedies for Breach of a Condition
The village council may do the following in respect of breaches. It may: - (a) exercise any
remedy available under customary law; (b) impose a fine on an occupier in accordance with
section 40; (c) serve a notice on the occupier in accordance with section 41 requiring the breach
to be remedied; (d) serve a supervision order on the occupier in accordance with section 42; or (e)
temporarily assign the customary right of occupancy to another person in accordance with
section 43. Some breaches can be rectified.
The action required for remedying any breach includes; (a) in the case of a positive condition or
a requirement in a regulation or order, to do some act or thing, or the doing of any act or thing
the omission of which constituted or formed part of the breach; (b) in the case of a negative
condition, or a prohibition in a regulation or order, of the doing of those acts and things which
are necessary or which the village council may direct to be done to put the land into the state in
which it would be if the breach had not occurred. Before taking any action in respect of a breach
of a condition of the customary right of occupancy, the village council must consider:- (a) the
nature and gravity of the breach and whether it could be waived; (b) the circumstances of the
occupier; (c) whether the condition that has been breached could be remedied so as to obviate the
breach. In case the village council wants to take action on the breach, it must first issue a
warning to the occupier advising him that he is in breach of the conditions of the customary right
of occupancy and how he may rectify that breach.
Revocation of a Customary Right Occupancy
The President may revoke a right of occupancy granted to a non-village organization or a group
of persons who are not villagers. Section 46 and 47 of the Land Act on fines for breach of
condition and summary action to remedy breach of condition applies to customary right of
occupancy.

Customary and granted land right of occupancy by datius didace

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