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RTF formatTanzania -- Attorney General v. Aknonaay and Lohay, Civil Appeal No. 31 of 1994, Court of Appeal
10/21/1993
Note from E-LAW U.S.:
This opinion contains several spelling mistakes made in the original
opinion from which we transcribed. Also,
our original is illegible in
two spots. The first omission is of one or two letters. The second is
of about 10 words. These two
spots are noted in the text in
[brackets].
IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES
SALAAM
(CORAM: NYALALI, C.J., MAKAME, J.K., and KISANGA,
J.A.)
CIVIL APPEAL NO. 31 OF 1994
HON. ATTORNEY GENERAL
............... APPELLANT
VERSUS
1. LOHAY AKNONAAY
2.
JOSEPH LOHAY ...........................RESPONDENT
(Appeal
from the Judgement of the High Court of Tanzania at Arusha)
(Justice
Munuo)
dated 21st October, 1993
in
The High Court
Miscellaneous Civil Cause No. 1 of 1993
---------------
JUDGEMENT
OF THE COURT
NYALALI, C.J.:
This case clearly
demonstrates how an understanding of our Country's past is crucial to
a better understanding of our present, and
why it is important while
understanding our past, to avoid living in that past. The
respondents, namely, Lohay Akonaay and Joseph
Lohay are father and
son, living in the village of Kambi ya Simba, Mbulumbulu Ward,
[unreadable name of district] ...bald District,
in Arusha Region. In
January 1987 they successfully instituted a suit in the Court of the
Resident Magistrate for Arusha Region
for recovery of a piece of land
held under customary law. An eviction order was subsequently issued
for eviction of the judgement
debtors and the respondents were given
possession of the piece of land in question. There is currently an
appeal pending in the
High Court at Arusha against the judgement of
the trial court. This is Arusha High Court Civil Appeal No. 6 of
1991. While this
appeal was pending, a new law, which came into force
on the 28th December 1992, was enacted by the Parliament, declaring
the extinction
of customary rights in land, prohibiting the payment
of compensation for such extinction, ousting the jurisdiction of the
courts,
terminating proceedings pending in the courts, and
prohibiting the enforcement of any court decision or decree
concerning matters
in respect of which jurisdiction was ousted. The
law also established, inter alia, a tribunal with exclusive
jurisdiction to deal
with the matters taken out of the jurisdiction
of the courts. This new law is the Regulation of Land Tenure
(Established Villages)
Act, 1992, Act No. 22 of 1992, hereinafter
called Act No. 22 of 1992.
Aggrieved by this new law, the
respondents petitioned against the Attorney-General in the High
Court, under articles 30 (3) and
26 (2) of the Constitution of the
United Republic of Tanzania, for a declaration to the effect that the
new law is unconstitutional
and consequently null and void. The High
Court, Munuo, J., granted the petition and ordered the new law struck
off the statute
book. The Attorney-General was aggrieved by the
judgement and order of the High Court, hence he sought and obtained
leave to appeal
to this Court. Mr. Felix Mrema, the learned Deputy
Attorney-General, assisted by Mr. Sasi Salula, State Attorney,
appeared for
the Attorney-General, whereas Messrs Lobulu and Sang'ka,
learned advocates, appeared for the respondents.
From the
proceedings in this court and the court below, it is apparent that
there is no dispute between the parties that during
the colonial
days, the respondents acquired a piece of land under customary law.
Between 1970 and 1977 there was a country-wide
operation undertaken
in the rural areas by the Government and the ruling party, to move
and settle the majority of the scattered
rural population into
villages on the mainland of Tanzania. One such village was Kambi ya
Simba village, where the residents reside.
During this exercise,
commonly referred to as Operation Vijiji, there was wide-spread
re-allocation of land between the villagers
concerned. Among those
affected by the operation were the respondents, who were moved away
from the land they had acquired during
the colonial days to another
piece of land within the same village. The respondents were
apparently not satisfied with this reallocation
and it was for the
purpose of recovering their original piece of land that they
instituted the legal action already mentioned.
Before the case was
concluded in 1989, subsidiary legislation was made by the appropriate
Minister under the Land Development (Specified
Areas) Regulations,
1986 read together with the Rural Lands (Planning and Utilization)
Act, 1973, Act No. 14 of 1973 extinguishing
all customary rights in
land in 92 villages listed in a schedule. This is the Extinction of
Customary Land Right Order, 1987 published
as Government Notice No.
88 of 13th February 1987. The order vested the land concerned in the
respective District Councils having
jurisdiction over the area where
the land is situated. The respondents' village is listed as Number 22
in that schedule [unreadable
text: about 10 words] … Order,
including the respondents' village, are in areas within Arusha
Region.
The Memorandum of appeal submitted to us for the
appellant contains nine grounds of appeal, two of which, that is
ground number
8 and 9 were abandoned in the course of hearing the
appeal. The remaining seven grounds of appeal read as
follows:
1. That the Honourable
Trial Judge erred in fact and law in holding that a deemed Right of
Occupancy
as defined in section 2 of the Land Ordinance Cap 113 is
"property" for the purposes of Article 24(1) of the
Constitution
of the United Republic of Tanzania 1977 and as such its
deprivation is unconstitutional.
2. That
the Honourable Trial Judge erred in law and fact in holding that
section 4 of the Regulation
of Land Tenure (Established Villages)
Act, 1992, precludes compensation for unexhausted
improvements.
3. That the Honourable
Trial Judge erred in law and fact in holding that any statutory
provision ousting
the jurisdiction of the courts is contrary to the
Constitution of the United Republic of Tanzania.
4. That
the Honourable Trial Judge erred in law by holding that the whole of
the Regulation of Land
Tenure (Established Villages) Act 1992 is
unconstitutional.
5. That the
Honourable Trial Judge erred in law and fact in holding that the
Regulation of Land Tenure
(Established Villages) Act 1992 did acquire
the Respondents' land and reallocated the same to other people and in
holding that
the Act was discriminatory.
6. That
having declared the Regulation of Land Tenure (Established Villages)
Act 1992 unconstitutional,
the Honourable Judge erred in law in
proceeding to strike it down.
7. The
Honourable Trial Judge erred in fact by quoting and considering a
wrong and non-existing section
of the law.
The respondents on
their part submitted two notices before the hearing of the appeal.
The first is a Notice of Motion purportedly
under Rule 3 of the
Tanzania Court of Appeal Rules, 1979, and the second, is a Notice of
Grounds for affirming the decision in
terms of Rule 93 of the same.
The Notice of Motion sought to have the court strike out the grounds
of appeal numbers 1, 5, 8 and
9. After hearing both sides, we were
satisfied that the procedure adopted by the respondents was contrary
to rules 45 and 55 which
require such an application to be made
before a single judge. We therefore ordered the Notice of Motion to
be struck off the record.
As to the Notice of Grounds for
affirming the decision of the High Court, it reads as
follows:
1. As the appellant had
not pleaded in his Reply to the Petition facts or points of law
showing controversy,
the court ought to have held that the petition
stands unopposed.
2. Since the
Respondents have a court decree in their favour, the Legislature
cannot nullify the said
decree as it is against public policy, and
against the Constitution of Tanzania.
3. As
the Respondents have improved the land, they are by that reason alone
entitled to compensation
in the manner stipulated in the Constitution
and that compensation is payable before their rights in land could be
extinguished.
4. Possession and use
of land constitute "property" capable of protection under
the Constitution
of Tanzania. Act No. 22 is therefore
unconstitutional to the extent that it seeks to deny compensation for
loss of use; it denies
right to be heard before extinction of the
right.
5. Operation Vijiji gave no
person a right to occupy or use somebody else's land, hence no rights
could
have been acquired as a result of that "operation".
6. The
victims of Operation Vijiji are entitled to reparations, The
Constitution cannot therefore be
interpreted to worsen their
plight.
7. The land is the
Respondents' only means to sustain life. Their rights therein cannot
therefore be
extinguished or acquired in the manner the Legislature
seeks to do without violating the Respondents' constitutional right
to life.
For purposes of clarity, we are going to deal with
the grounds of appeal one by one, and in the process, take into
account the grounds
submitted by the respondents for affirming the
decision wherever they are relevant to our decision.
Ground
number one raises an issue which has far-reaching consequences to the
majority of the people of this country, who depend
on land for their
livelihood. Article 24 of the Constitution of the United Republic of
Tanzania recognizes the right of every person
in Tanzania to acquire
and own property and to have such property protected. Sub-article (2)
of that provision prohibits the forfeiture
or expropriation of such
property without fair compensation. It is the contention of the
Attorney-General, as eloquently articulated
before us by Mr. Felix
Mrema, Deputy Attorney-General, that a "right of occupancy"
which includes customary rights in
land as defined under section 2 of
the Land Ordinance, Cap 113 of the Revised Laws of Tanzania Mainland,
is not property within
the meaning of article 24 of the Constitution
and is therefore not protected by the Constitution. The Deputy
Attorney-General cited
a number of authorities, including the case of
AMODU TIJAN VS THE SECRETARY SOUTHERN NIGERIA (1921) 2 A.C. 399 and
the case of MTORO BIN MWAMBA VS THE ATTORNEY GENERAL (1953) 20
E.A.C.A. 108, the latter arising from our own jurisdiction. The
effect of these authorities is that customary rights in land are by
their nature
not rights of ownership of land, but rights to use or
occupy land, the ownership of which is vested in the community or
communal
authority. The Deputy Attorney- General also contended to
the effect that the express words of the Constitution under Article
24
makes the right to property, "subject to the relevant laws of
the land."
Mr. Lobulu for the respondents has countered
Mr. Mrema's contention by submitting to the effect that whatever the
nature of customary
rights in land, such rights have every
characteristic of property, as commonly known, and therefore fall
within the scope of article
24 of the Constitution. He cited a number
of authorities in support of that position, including the Zimbabwe
case of HEWLETT VS
MINISTER OF FINANCE (1981) ZLR 573, and the cases
of SHAH VS ATTORNEY-GENERAL (N.2) 1970 EA 523 and the scholarly
article by Thomas Allen, lecturer in Law, University of Newcastle,
published in the International and Comparative
Law Quarterly, Vol.
42, July 1993 on "Commonwealth constitutions and the right not
to be deprived of property."
Undoubtedly the learned
trial judge, appears to have been of the view that customary or
deemed rights of occupancy are properly
within the scope of article
24 of the Constitution when she stated in her judgement:
"I
have already noted earlier on that the petitioner legally possess the
suit land under customary
land tenure under section 2 of the Land
Ordinance cap 113. They have not in this application sought any
special status, rights
or privileges and the court has not conferred
any on the petitioners. Like all other law abiding citizens of this
country, the
petitioners are equally entitled to basic human rights
including the right to possess the deemed rights of occupancy they
lawfully
acquired pursuant to Article 24 (1) of the Constitution and
section 2 of the Land Ordinance, Cap 113."
Is the trial
judge correct? We have considered this momentous issue with the
judicial care it deserves. We realize that if the Deputy
Attorney-General is correct, then most of the inhabitants of the
Tanzania mainland are no better than squatters in their own country.
It is a serious proposition. Of course if that is the correct
position in law, it is our duty to agree with the Deputy
Attorney-General,
without fear or favour, after closely examining the
relevant law and the principles underlying it.
In order to
ascertain the correct legal position, we have had to look at the
historical background of the written law of land tenure
on the
mainland of Tanzania, since the establishment of British Rule. This
exercise has been most helpful in giving us an understanding
of the
nature of rights or interests in land on the mainland of Tanzania.
This historical background shows that the overriding
legal concern of
the British authorities, no doubt under the influence of the Mandate
of the League of Nations and subsequently
of the Trusteeship Council,
with regard to land, was to safeguard, protect, and not to derogate
from, the rights in land of the
indigenous inhabitants. This is
apparent in the Preamble to what was then known as the Land Tenure
Ordinance, Cap 113 which came
into force on 26 January, 1923. The
Preamble reads:
"Whereas it
is expedient that the existing customary rights of the natives of the
Tanganyika
Territory to use and enjoy the land of the Territory and
the natural fruits thereof in sufficient quantity to enable them to
provide
for the sustenance of themselves their families and their
posterity should be assured, protected and preserved;
AND
WHEREAS it is expedient that the rights and obligations of the
Government in regard to the whole
of the lands within the Territory
and also the rights and obligations of cultivators or other persons
claiming to have an interest
in such lands should be defined by
law.
BE IT THEREFORE ENACTED by
the Governor and Commander-in-Chief of the Tanganyika Territory as
follows
. . ."
It is well known that after a series of
minor amendments over a period of time, the Land Tenure Ordinance
assumed its present title
and form as the Land Ordinance, Cap 113.
Its basic features remain the same up to now. One of the basic
features is that all land
is declared to be public land and is vested
in the governing authority on trust for the benefit of the indigenous
inhabitants of
this country. This appears in section 3 and 4 of the
Ordinance.
The underlying principle of assuring, protecting
and preserving customary rights in land is also reflected under
article 8 of the
Trusteeship Agreement, under which the mainland of
Tanzania was entrusted by the United Nations to the British
Government. Article
8 reads:
"In
framing laws relating to the holding or transfer of land and natural
resources, the Administering
Authority shall take into consideration
native laws and customs, and shall respect the rights and safeguard
the interests, both
present and future, of the native population. No
native land or natural resources may be transferred except between
natives, save
with the previous consent of the competent public
authority. No real rights over native land or natural resources in
favour of
non-natives may created except with the same
consent."
With this background in mind, can it be said
that the customary or deemed rights of occupancy recognized under the
Land Ordinance
are not property qualifying for protection under
article 24 of the Constitution? The Deputy Attorney-General has
submitted to the
effect that the customary or deemed rights of
occupancy, though in ordinary parlance may be regarded as property,
are not constitutional
property within the scope of Article 24
because they lack the minimum characteristics of property as outlined
by Thomas Allen in
his article earlier mentioned where he
states:
"The precise
content of the bundle of rights varies between legal systems, but
nonetheless it
is applied throughout the Commonwealth. At a minimum,
the bundle has been taken to include the right to exclude others from
the
thing owned, the right to use or receive income from it, and the
right to transfer to others. According to the majority of
Commonwealth
cases, an individual has property once he or she has a
sufficient quantity of these rights in a thing. What is ‘sufficient'
appears to vary from case to case, but it is doubtful that a single
strand of the bundle would be considered property on its
own."
According to the Deputy Attorney-General, customary
or deemed rights of occupancy lack two of the three essential
characteristics
of property. First, the owner of such a right cannot
exclude all others since the land is subject to the superior title of
the
President of the United Republic in whom the land is vested.
Second, under section 4 of the Land Ordinance, the occupier of such
land cannot transfer title without the consent of the
President.
With due respect to the Deputy Attorney-General, we
do not think that his contention on both points is correct. As we
have already
mentioned, the correct interpretation of S.4 and related
sections above mentioned is that the President holds public land on
trust
for the indigenous inhabitants of that land. From this legal
position, two important things follow. Firstly, as trustee of public
land, the President's power is limited in that he cannot deal with
public land in a manner in which he wishes or which is detrimental
to
the beneficiaries of public land. In the words of s. 6(1) of the
Ordinance, the President may deal with public land only "where
it appears to him to be in the general interests of Tanganyika."
Secondly, as trustee, the President cannot be the beneficiary
of
public land. In other words, he is excluded from the beneficial
interest.
With regard to the requirement of consent for the
validity of title to the occupation and use of public lands, we do
not think that
the requirement applied to the beneficiaries of public
land, since such an interpretation would lead to the absurdity of
transforming
the inhabitants of this country, who have been in
occupation of land under customary law from time immemorial, into
mass squatters
in their own country. Clearly that could not have been
the intention of those who enacted the Land Ordinance. It is a well
known
rule of interpretation that a law should not be interpreted to
lead to an absurdity. We find support from the provisions of article
8 of the Trusteeship Agreement which expressly exempted dispositions
of land between the indigenous inhabitants from the requirement
of
prior consent of the governing authority. In our considered opinion,
such consent is required only in cases involving disposition
of land
by indigenous inhabitants or natives to non-natives in order to
safeguard the interests of the former. We are satisfied
in our minds
that the indigenous population of this country are validly in
occupation of land as beneficiaries of such land under
customary law
and any disposition of land between them under customary law is valid
and requires no prior consent from the President.
We are of
course aware of the provisions of the Land Regulations, 1948 and
specifically regulation 3 which requires every disposition
of a Right
of Occupancy to be in writing and to be approved by the President. In
our considered opinion the Land Regulations apply
only to a Right of
Occupancy granted under s.6 of the Land Ordinance and have no
applicability to customary or deemed rights of
occupancy, where
consent by a public authority is required only in the case of a
transfer by a native to a non-native. A contrary
interpretation would
result in the absurdity we have mentioned earlier.
As to the
contention by the Deputy Attorney-General to the effect that the
right to property under Article 24 of the Constitution
is derogated
from by the provision contained therein which subjects it to "the
relevant laws of the land," we do not
think that, in principle,
that expression, which is to be found in other parts of the
Constitution, can be interpreted in a manner
which subordinates the
Constitution to any other law. It is a fundamental principle in any
democratic society that the Constitution
is supreme to every other
law or institution. Bearing this in mind, we are satisfied that the
relevant proviso means that what
is stated in the particular part of
the Constitution is to be exercised in accordance with relevant law.
It hardly needs to be
said that such regulatory relevant law must not
be inconsistent with the Constitution.
For all these reasons
therefore we have been led to the conclusion that customary or deemed
rights in land, though by their nature
are nothing but rights to
occupy and use the land, are nevertheless real property protected by
the provisions of article 24 of
the Constitution. It follows
therefore that deprivation of a customary or deemed right of
occupancy without fair compensation is
prohibited by the
Constitution. The prohibition of course extends to a granted right of
occupancy. What is fair compensation depends
on the circumstances of
each case. In some cases a reallocation of land may be fair
compensation. Fair compensation however is
not confined to what is
known in law as unexhausted improvements. Obviously where there are
unexhausted improvements, the constitution
as well as the ordinary
land law requires fair compensation to be paid for its
deprivation.
We are also of the firm view that where there are
no unexhausted improvement, but some effort has been put into the
land by the
occupier, that occupier is entitled to protection under
Article 24 (2) and fair compensation is payable for deprivation of
property.
We are led to this conclusion by the principle, stated by
Mwalimu Julius K. Nyerere in 1958 and which appears in his book
"Freedom
and Unity" published by Oxford University Press,
1966. Nyerere states, inter alia:
"When
I use my energy and talent to clear a piece of ground for my use it
is clear that I am
trying to transform this basic gift from God so
that it can satisfy a human need. It is true, however, that this land
is not mine,
but the efforts made by me in clearing the land enable
me to lay claim of ownership over the cleared piece of ground. But it
is
not really the land itself that belongs to me but only the cleared
ground which will remain mine as long as I continue to work on
it. By
clearing that ground I have actually added to its value and have
enabled it to be used to satisfy a human need. Whoever
then takes
this piece of ground must pay me for adding value to it through
clearing it by my own labour."
This in our view, deserves
to be described as "the Nyerere Doctrine of Land Value" and
we fully accept it as correct in
law.
We now turn to the
second ground of appeal. This one poses no difficulties. The genesis
of this ground of appeal is the finding
of the trial judge where she
states,
"In the light of
the provisions of Article 24 (1) and (2) of the Constitution, section
3 and
4 of Act No. 22 of 1992 violate the Constitution by denying the
petitioners the right to go on possessing their deemed rights of
occupancy and what is worse, denying the petitioners compensation
under section 3 (4) of Act No. 22 of 1992."
Like both
sides to this case, we are also of the view that the learned trial
judge erred in holding that the provisions of section
4 of Act. No.
22 of 1992 denied the petitioners or any other occupier compensation
for unexhausted improvements. The clear language
of that section
precludes compensation purely on the basis of extinction of customary
rights in land. The section reads:
"No
compensation shall be payable only on account of loss of any right or
interest in or over
land which has been extinguished under section 3
of this Act."
But as we have already said, the correct
constitutional position prohibits not only deprivation of unexhausted
improvements without
fair compensation, but every deprivation where
there is value added to the land. We shall consider the
constitutionality of section
4 later in this judgement.
Ground
number 3 attacks the finding of the trial judge to the effect that
the provisions of Act No. 22 of 1992 which oust the jurisdiction
of
the Courts from dealing with disputes in matters covered by the Act
are unconstitutional. The relevant part of the judgement
of the High
Court reads as follows:
"The
effect of sections 5 and 6 of Act No. 22 of 1992 is to oust the
jurisdiction of the Courts
of law in land disputes arising under the
controversial Act No. 22 of 1992 and exclusively vesting such
jurisdiction in land tribunals.
Such ousting of the courts
jurusdiction by section 5 and 6 of Act No. 22/92 violates Articles
30(1), (3), (4) and 108 of the Constitution."
The Deputy
Attorney-General has submitted to the effect that the Constitution
allows, specifically under article 13 (6) (a), for
the existence of
bodies or institutions other than the courts for adjudication of
disputes. Such bodies or institutions include
the Land Tribunal
vested with exclusive jurisdiction under section 6 of Act No. 22 of
1992. We are greatful for the interesting
submission made by the
Deputy Attorney-General on this point, but with due respect, we are
satisfied that he is only partly right.
We agree that the
Constitution allows the establishment of quasi-judicial bodies, such
as the Land Tribunal. What we do not agree
is that the Constitution
allows the courts to be ousted of jurisdiction by confering exclusive
jurisdiction on such quasi-judicial
bodies. It is the basic structure
of a democratic Constitution that state power is divided and
distributed between three state
pillars. These are the Executive,
vested with executive power; the Legislature vested with legislative
power; and the Judicature
vested with judicial powers. This is
clearly so stated under article 4 of the Constitution. This basic
structure is essential to
any democratic constitution and cannot be
changed or abridged while retaining the democratic nature of the
constitution. It follows
therefore that wherever the constitution
establishes or permits the establishment of any other institution or
body with executive
or legislative or judicial power, such
institution or body is meant to function not in lieu of or in
derogation of these three
central pillars of the state, but only in
aid of and subordinate to those pillars. It follows therefore that
since our Constitution
is democratic, any purported ouster of
jurisdiction of the ordinary courts to deal with any justiciable
dispute is unconstitutional.
What can properly be done wherever need
arises to confer adjudicative jurisdiction on bodies other than the
courts, is to provide
for finality of adjudication, such as by appeal
or review to a superior court, such as the High Court or Court of
Appeal.
Let us skip over ground number 4 which is the
concluding ground of the whole appeal. We shall deal with it later.
For now, we turn
to ground number 5. This ground relates to that part
of the judgement of the learned trial judge, where she
states:
"It is reverse
discrimination to confiscate the petitioners deemed right of
occupancy and reallocate
the same to some other needy persons because
by doing so the petitioners are deprived of their right to own land
upon which they
depend for a livelihood which was why they acquired
it back in 1943."
There is merit in this ground of
appeal. Act No. 22 of 1992 cannot be construed to be discriminatory
within the meaning provided
by Article 13(5) of the Constitution. Mr.
Sang'ka's valiant attempt to show that the Act is discriminatory in
the sense that it
deals only with people in the rural areas and not
those in the urban areas was correctly answered by the Deputy
Attorney-General
that the Act was enacted to deal with a problem
peculiar to rural areas. We also agree with the learned Deputy
Attorney-General,
that the act of extinguishing the relevant
customary or deemed rights of occupancy did not amount to acquisition
of such rights.
As it was stated in the Zimbabwe case of HEWLETT VS
MINISTER OF FINANCE cited earlier where an extract of a judgement of
Viscount
Dilhome is reproduced stating:
"Their
Lordships agree that a person may be deprived of his property by mere
negative or restrictive
provision but it does not follow that such a
provision which leads to deprivation also leads to compulsory
acquisition or use."
It is apparent that, during
Operation Vijiji what happened was that some significant number of
people were deprived of their pieces
of land which they held under
customary law, and were given in exchange other pieces of land in the
villages established pursuant
to Operation Vijiji. This exercise was
undertaken not in accordance with any law but purely as a matter of
government policy. It
is not apparent why the government chose to act
outside the law, when there was legislation which could have allowed
the government
to act according to law, as it was bound to. We have
in mind the Rural Lands (Planning and Utilization) Act, 1973, Act No.
14 of
1973, which empowers the President to declare specified areas
to regulate land development and to make regulations to that effect,
including regulations extinguishing customary rights in land and
providing for compensation for unexhausted improvements, as was
done
in the case of Rufiji District under Government Notice Nos. 25 of
10th May 1974 and 216 of 30th August 1974. The inexplicable
failure
to act according to law, predictably led some aggrieved villagers to
seek remedies in the courts by claiming recovery of
the lands they
were dispossessed during the exercise. Not surprisingly most
succeeded. To avoid the unravelling of the entire exercise
and the
imminent danger to law and order, the Land Development (Specified
Areas) Regulations, 1986 and the Extinction of Customary
Land Rights
Order, 1987 were made under Government Notice No. 659 of 12th
December 1986 and Government Notice No. 88 of 13th February
1987
respectively. As we have already mentioned earlier in this judgement,
Government Notice No. 88 of 13th February 1987 extinguished
customary
land rights in certain villages in Arusha Region, including the
village of Kambi ya Simba where the respondents come
from. We shall
consider the legal effect of this Government Notice later in this
judgement.
For the moment we must turn to ground number 6 of
the appeal. Although the Deputy Attorney-General was very forceful in
submitting
to the effect that the learned trial judge erred in
striking down from the statute book those provisions of Act. No. 22
of 1992
which she found to be unconstitutional, he cited no authority
and indicated no appropriate practice in countries with jurisdiction
similar on what may be described as the authority or force of reason
by arguing that the Doctrine of Separation of Powers dictates
that
only the Legislature has powers to strike out a statute from the
statute book. We would agree with the learned Deputy Attorney-General
in so far as valid statutes are concerned. We are unable, on the
authority of reason, to agree with him in the case of statutes
found
by a competent court to be null and void. In such a situation, we are
satisfied that such court has inherent powers to make
a consequential
order striking out such invalid statute from the statute book. We are
aware that in the recent few weeks some legislative
measures have
been made by the Parliament concerning this point. Whatever those
measures may be, they do not affect this case which
was decided by
the High Court a year ago.
Ground
number 7 is next and it poses no difficult at all. It refers to that
part of the High Court's judgement where the learned
trial judge
states:
"Furthermore
section 3(4) of Act No. 22 of 1992 forbides any compensation on
account of the loss
of any right or interest in or over land which
has been extinguished under section 3 of Act No. 22 of 1992."
As
both sides agree, the reference to section 3(4) must have been a slip
of the pen. There is no such section. The learned trial
judge must
have been thinking of section 4 and would undoubtedly have corrected
the error under the Slip Rule had her attention
been drawn to it.
We
must now return to ground number 4. The genesis of this ground is
that part of the judgement of the trial court where it
states:
"For reasons
demonstrated above the court finds that sections 3, 4, 5 and 6 of Act
No. 22 /92
the Regulation of Land Tenure (Established Villages) Act
1992 violate some provisions of the Constitution thereby contravening
Article 64(5) of the Constitution. The unconstitutional Act No. 22 of
1992 is hereby declared null and void and accordingly struck
down
…"
The learned Deputy Attorney-General contends in
effect that the learned trial judge, having found only four sections
out of twelve
to be unconstitutional ought to have confined herself
only to striking down the four offending sections and not the entire
statute.
There is merit in this ground of appeal. There is persuasive
authority to the effect that where the unconstitutional provisions
of
a statute may be severed leaving the remainder of the statute
functioning, then the court should uphold the remainder of the
statute and invalidate only the offending provisions.
See the
case of Attorney-General of Alberta vs Attorney-General of Canada
(1947) AC 503.
In the present case, for the reasons we have
given earlier, we are satisfied that sections 3 and 4 which provide
for the extinction
of customary rights in land but prohibit the
payment of compensation with the implicit exception of unexhausted
improvements only
are violative of Article 24(1) of the Constitution
and are null and void. Section 4 would be valid if it covered
compensation for
value added to land within the scope of the Nyerere
Doctrine of Land Value.
But as we have pointed out earlier in
this judgement, this finding has no effect in the villages of Arusha
Region including Kambi
ya Simba, which are listed in the schedule to
Government Notice No. 88 of 1987. The customary rights in land in
those listed villages
were declared extinct before the provisions of
the Constitution, which embody the Basic Human Rights became
enforceable in 1988
by virtue of the provisions of section 5(2) of
the Constitution (Consequential, Transitional and Temporary
Provisions) Act, 1984.
This means that since the provisions of Basic
Human Rights are not retrospective, when the Act No. 22 of 1992 was
enacted by the
Parliament, there were no customary rights in land in
any of the listed villages of Arusha Region. This applies also to
other areas,
such as Rufiji District where, as we have shown,
customary rights in land were extinguished by law in the early 1970s.
Bearing
in mind that Act No. 22 of 1992, which can correctly be
described as a draconian legislation, was prompted by a situation in
some
villages in Arusha Region, it is puzzling that a decision to
make a new law was made where no new law was needed. A little
research
by the Attorney-General's Chambers would have laid bare the
indisputable fact that customary rights in land in the villages
concerned
had been extinguished a year before the Bill of Rights came
into force. With due respect to those concerned, we feel that this
was unnecessary panic characteristic of people used to living in our
past rather than in our present which is governed by a constitution
embodying a Bill of Rights. Such behavior does not augur well for
good governance.
With regard to section 5(1) and (2) which
prohibits access to the courts or tribunal, terminates proceedings
pending in court or
tribunal and prohibits enforcement of decisions
of any court or tribunal concerning land disputes falling within Act
No. 22 of
1992, we are satisfied, like the learned trial judge, that
the entire section is unconstitutional and therefore null and void,
as it encroaches upon the sphere of Judicature contrary to Article 4
of the Constitution, and denies an aggrieved party remedy before
an
impartial tribunal contrary to Article 13(6)(a) of the same
constitution.
The position concerning section 6 is slightly
different. That section reads:
"No
proceeding may be instituted under this Act, other than in the
Tribunal having jurisdiction
over the area in which the dispute
arises."
Clearly this section is unconstitutional only to
the extent that it purports to exclude access to the courts. The
offending parts
may however be severed so that the remainder reads,
"Proceedings may be instituted under this Act in Tribunal having
jurisdiction
over the area in which the dispute arises". This
would leave the door open for an aggrieved party to seek a remedy in
the
courts, although such courts would not normally entertain a
matter for which a special forum has been established, unless the
aggrieved
party can satisfy the court that no appropriate remedy is
available in the special forum.
The remainder of the
provisions of Act No. 22 of 1992 including section 7, which can be
read without the proviso refering to the
invalidated section 3, can
function in respect of the matters stated under s.7 of the Act. To
that extent therefore the learned
trial judge was wrong in striking
down the entire statute. To that extend we hereby reverse the
decision of the court below. As
neither side is a clear winner in
this case, the appeal is partly allowed and partly dismissed. We make
no order as to costs.
DATED at DAR ES SALAAM this 21st day of
December, 1994.
F. L.
NYALALI
CHIEF JUSTICE
L. M.
MAKAME
JUSTICE OF APPEAL
R. H. KISANGA
JUSTICE OF
APPEAL
I certify that this is a true copy of the
original.
(B. M. LUANDA)
SENIOR DEPUTY REGISTRAR
Last modified 12/30/02 3:10:32 PM