Monday, September 11, 2017


The following points are vital so far as the difference between hearing and listening is concerned
  1. An individual’s ability to perceive sounds, by receiving vibrations through ears, is called the hearing. Listening is something done consciously, that involve the analysis and understanding of the sounds you hear.
  2. The hearing is the primary and continuous in nature, i.e. the first and foremost stage is hearing, followed by listening and it occurs continuously. On the other hand, listening is temporary, as we cannot continuously pay attention to something for long hours.
  3. The hearing is physiological, which is through one of our senses in the living organisms. On the contrary, listening is a psychological (conscious) act.
  4. While hearing is a passive bodily process that does not the involve use of the brain. As opposed to listening, it is an active mental process, which involves the use of brain to draw meaning from words and sentences.
  5. Hearing involves receipt of the message through ears. Conversely, listening encompasses interpretation of the message received by ears.
  6. The hearing is an inborn ability but listening is a learned skill.
  7. In the hearing, we are not aware of the sounds that we receive, however in the case of listening, we are completely aware of what the speaker is saying.
  8. Hearing involves the use of only one sense i.e. ears. In contrast, listening, involves the use of more than one senses i.e. eyes, ears, touch etc. to understand the message completely and accurately.
  9. In the hearing, we are neither aware nor we have any control over the sounds we hear. On the other hand, in listening, we are aware of what the other person is saying and so we listen to acquire knowledge and receive information.
  10. Hearing does not require focus whereas listening does.

Saturday, August 5, 2017

The Functions of Law

The concept of the functions of law is of major importance. It is needed to explain the nature of law, to explain disciplines associated with law, to correctly interpret and apply law, to pinpoint the interaction of law with social norms and institutions, to determine which general principles to which the law should conform or deviate, and to explain the law within the context of normative philosophy. 

Aims to contribute to the elaboration of the comprehensive reasoned scheme of the functions of the law. In it, the questions of the social functions of law are distinguished from the question of classifying legal norms into distinct normative types. 

The four primary functions of law – preventing undesirable behavior and securing desirable behavior which is performed in criminal law and torts; providing facilities for private arrangements between individuals, which is found in private law, criminal, and tort law; provisions of services and the redistribution of goods found in legal systems; and settling unregulated disputes found in courts and tribunals – are discussed in the chapter. It also tackles the secondary and indirect functions of the law. 

The secondary functions of the law include the determination of procedures for changing the law and the regulation of the operation of law-applying organs. 

Thursday, August 3, 2017


Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Makame JJA and Kisanga JJA

29 November 1983
                                                                  Bi. Hawa Mohamed


                                                                             Ally Sefu

Ally Sefu was Married to Bi. Hawa Mohamed in accordance with Islamic law in 1971. The couple by then resided in Mombasa, Kenya before shifting to Dar es Salaam in 1975. Ally bought a house the previous year. They legally divorced in 1980 and obtained a divorce decree in the District Primary Court at Kariakoo. The former wife then applied for the distribution of Matrimonial property. The court answered it in the negative. On appeal to the High Court, the same position was upheld that `housework' did not amount to a "contribution" within the meaning of Section 114 of the Law of Marriage Act, 1971.2 Bi. Hawa then appealed to the Court of Appeal of Tanzania.

The Court held that a spouse's domestic services, rendered during the subsistence of the Marriage, amount to an "effort" and "contribution" within the provisions of Section 114 of the Law of Marriage Act which entitles one to the distribution of the matrimonial property


Nyalali, C.J.

The appellant Bi. Hawa Mohamed and Ally Seifu were wife and husband respectively until the dissolution of their marriage by court decree of the Primary Court of Ilala District, at Kariakoo, Dar es Salaam in 1980. In subsequent proceedings, seeking the division of matrimonial assets, the Primary Court held in effect that Bi. Hawa Mohamed was not entitled to any share in the matrimonial assets as, to use the words of one of the assessors, "She was only a mere wife, and the house was bought by the husband with his own money." The Primary Court went on to accept the offer made by Ally Seifu to pay a sum of shs. 2,000/= as a parting gift to her in accordance with his religious tenets. On appeal, the High Court, Kimicha, J. substantially agreed with the views of the trial Primary Court but increased the amount of the parting gift to shs. 3,000/=. Bi. Hawa Mohamed was further aggrieved by the decision of the High Court and she obtained legal aid from the Tanganyika Law Society, hence this appeal to this court. Mr. R.C. Kesaria, learned Advocate, appeared on legal aid for the appellant. The Respondent appeared in person. The High Court certified that a point of law was involved. It can be broadly stated as follows:

Did the High Court and Primary Court err in law in holding the view that domestic services of a housewife do not amount to contributions made by her in the acquisition of matrimonial assets.

From the proceedings in the High Court and the Primary Court the following facts were established on the evidence. The appellant and respondent were married according to Islamic rites in Mombasa, Kenya, sometime in 1971. The respondent had a house in Mombasa and they used it as the matrimonial home. Furthermore, the respondent was a Seaman and his work involved travelling abroad for many months. While so travelling, he would provide adequate maintenance for the appellant, who remained at Mombasa, to look after the matrimonial home. On one occasion, he gave her an additional sum of shs. 18,000/= to set up business activities. She however failed to establish any business and the money cannot be accounted for. In 1974, the respondent purchased a house in Dar es Salaam with his own money. This house is House No. 40 along Swahili/Mhoro Streets and is the subject of this case. In 1975 the spouses moved from Mombasa to this house in Dar es Salaam and they were using this house as the matrimonial home at the time of their divorce.

The power of the Court to divide matrimonial assets is derived from Section 114 (1) of the Law of Marriage Act, 1971 which states:

114 (1). The court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between parties of any assets acquired by them during the marriage by their joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale.

It is apparent from the citation to and the wording of Section 114 that the assets envisaged thereat must firstly be matrimonial assets and secondly, they must have been acquired by them during the marriage by their joint efforts.

The first important point of law for consideration in this case is what constitutes matrimonial assets for purposes of Section 114. In our considered view, the term "matrimonial assets" means the same thing as what is otherwise described as `family assets'. Under paragraph 1064 of Lord Hailsham's Halsbury's Laws of England, 3 it is stated:

The phrase "family assets" has been described as a convenient way of expressing an important concept; it refers to those things which are acquired by one or other or both of the parties, with the intention that there should be continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole. The family assets can be divided into two parts (1) those which are of a capital nature, such as the matrimonial home and the furniture in it (2) those which are of a revenue - producing nature such as the earning power of husband and wife.

The next important point of law for consideration and decision in this case is whether the assets in question - that is House No. 40 situated along Swahili/Mhoro streets in Dar es Salaam was a matrimonial or family asset at the time of dissolution of the marriage of the parties. The answer here is easy. On the facts established in the two courts below, that house was used by the parties as their matrimonial home after they moved from Mombasa to Dar es Salaam. It was therefore a matrimonial or family asset.

The next point of law for consideration and decision is whether this matrimonial or family asset is subject to division between the parties under the provisions of Section 114 (1). It is apparent that the Court's power to divide matrimonial or family assets under Section 114 (1) is invoked only when the following conditions exist:
                          (i). When the Court has granted or is granting a decree of divorce or separation; and                            (ii). When there are matrimonial or family assets which were acquired by the parties                                   during the marriage; and
                         (iii). When the acquisition of such assets was brought about by the joint efforts of the                                   parties.

There is no controversy regarding the existence of conditions (i) and (ii). The real dispute centres on condition (iii) - that is, on whether the matrimonial home was acquired by the joint efforts of the appellant and respondent.

 1 Court of Appeal of Tanzania, Civil Appeal No. 9 of 1983. (Unreported). Appeal From The Judgement/Decree/Order/Finding/Decision of the High Court of Tanzania at Dar es Salaam (Kimicha, J.) dated the 2nd day of May 1981 in (PC) Matrimonial Civil Appeal No. 39 of 1980. Coram: Nyalali, C.J.; Makame, J.A.; and Kisanga, J.A. The Majority Judgment delivered at Dar es Salaam on 29th November, 1983. 2 Act No. 5 of 1971. 3 4th edition, at p. 491.

It is the appellant wife's contention that her efforts in performing her domestic duties had the effect of placing the respondent husband in a financial position to buy the house in question. As already mentioned, the two courts below rejected this contention on the ground that performance of domestic duties by a housewife does not count in the acquisition of matrimonial or family assets. The fundamental question now is whether this view of the two courts below is erroneous. We are aware that there are two schools of thought which currently contend in the High Court on this issue. In case of Zawadi Abdallah v. Ibrahim Iddi, 4 Mapigano, J. referred to these two schools of thought by stating:

There are those who maintain that under Section 114 the term joint effort is limited to direct contribution by a spouse by way of money, property and work, to the acquisition of the asset in question and that housekeeping and raising the children count for nothing. On the other hand, there are those who take the view that household work must be regarded as part of the joint effort or contribution towards the acquisition of any asset by the husband and the wife's citing of the husband's marriage vow and the fact that she has been running the home operate to entitle her to a slice in her husband's estate. You may, if you prefer, describe the two constructions as narrow and broad, respectively. The question which I am called upon to answer in this case is which one of those views is correct. This is an important matter and I confess I have not found it all easy. To my knowledge not much has been said about it in this country and there is a paucity of judicial pronouncement on the matter. Such few decisions as there are either way and happily I am not bound by any.

Those who champion the broad view see no valid distinction, in principle, between the wife who takes up employment or carries on business or profession and the one who remains at home and devotes her time running the home. They would construe the terms contribution and joint efforts liberally to include domestic services rendered by the full time "domestic" wife. They would advance several reasons to back up their viewpoint. Among the reasons: (1) that it is the philosophy and spirit of our time and that it is quite in harmony with the realities and changed social and economic circumstances; (2) that the domestic work may be more difficult and more valuable to the family than of a wife who is self-earning; (3) that the husband can hardly conduct his business if his wife does not cook the dinner and mind the children; (4) that in certain instances the wife may have sacrificed her own career on the altar of matrimonial life and if say after twenty or thirty years of marriage her husband for old man's reasons or no reason whatsoever (as probably was the position in the case before me), sees fit to banish her, the decree of divorce may have the further undesirable and sad effect of practically thrusting her into destitution; and (5) that in yet certain instances the estate of the husband may have been built up by the industry of the husband and the thrift and prudence of the wife in running the home and that, therefore, it is in conformity with one's sense of justice and fairness that she should share as of right on the fruits of his success. They would find encouragement and comfort in the words of Scarman, L.J.:

It is recognized that a married woman who brought up a family and maintained a home was thereby actually supporting her husband in his bread-winning activities by releasing him from family duty. Quite plainly if the marriage broke down she must have a claim upon the family funds by reason of that vital contribution to the family life. It was here that the law of England (as it then was) went wrong.5

These are, I think, strong and weighty reasons and no doubt that the strict operation of the doctrine of separate property can occasion a great deal of stress to a divorced woman. But we should bear in mind that the whole question is a legal one.

 Judge Makame for one has taken a stand on the side of the liberal school. Sitting in this court at this place he felt himself prepared and able to say that the domestic services that a wife renders count. That was in the case of Rukia Diwani Konzi v. Abdallah Issa Kihenya. 6 His reading of Section 114 does not square with that of the magistrate who heard this case. The learned judge thought that the Section has sufficient width to embrace the broad view. Stated the learned judge:

There is a school of thought which says that domestic services a housewife renders do not count when it comes to acquisition, and therefore the subsequent possible division, of material assets ... I find this view too narrow and conservative and I must confess my inability to subscribe to it. Section 114 of the Law of Marriage Act does not really support the school of thought referred to and is, in my view, capable of accommodating a more liberal interpretation.

 A little further on Makame, J. continued:

Even in a country like Britain, where salaried married women are quite common, the modern progressive view, with which I wish to associate myself, is that looking after the home and bringing up the children is a valuable contribution. See for example the recent case of Bateman v. Bateman. 7

  4 High Court of Tanzania at Dar es Salaam, Civil Appeal No. 10 of 1980. Reported in [1981] TLR 311.  5 Volume 34 Medico-Legal Journal, 1966, p. 19. 6 High Court of Tanzania at Dar es Salaam, Matrimonial Cause No. 6 of 1971 (Unreported). 7 The Law Report 1979 FAM 25.

But be it noted that in this respect our statutory law compares unfavourably with the English Law. The perimeters or ambits of the English Law are simply and expressly more extensive. The English case to which the learned judge made reference was an application by the wife for financial provision and adjustment of property in her favour, upon the dissolution of the marriage between her and the respondent. The decision of the court was manifestly predicated upon the provisions of the English Matrimonial Causes Act, 1973, which makes explicit provisions to the effect that in adjusting property rights under that act, the contribution made by each of the parties to the welfare of the family, is a relevant consideration to be taken into account. So in my respectful opinion the decision in that case can hardly be helpful or persuasive.

Mapigano, J., continues:

As shown, in this case the learned magistrate expressed and followed the narrow interpretation. He argued that since traditionally the looking after the household and caring for the children is the occupation and responsibility of a wife, just as the feeding and clothing of the family is the occupation and responsibility of the husband, then that should not be considered as a contribution or joint effort. Was he wrong? At the risk of being deemed a conservative, though I would like to believe that I am not, I must say that on the view that I take of the law I feel compelled to pronounce that the decision of the learned magistrate is, in the final analysis, sound. I share his opinion that under Section 114 the housework of a wife and looking after the children are not to be equated with the husband's work for the purpose of evaluating contributions to marital property. I hold as he did that such domestic services are not to be taken into consideration when the court is exercising its powers under the Section. I will give my reasons.

First, I think that the broad view is inextricably linked with other matters. It does bring to the fore other issues which are arguably troublesome in regard to which the statute does not appear to make any clear provisions. Two such issues come to my mind. One, there would be in many cases the question whether the matter is to be decided with reference to the matrimonial differences which may in fact have made it necessary to consider the matter - in the light of the principle that no one should be allowed to benefit from his own wrong. To put it interrogatively: will a wife be allowed to benefit from a marriage which she has wrecked? Two, there would be the relationship between the order under Section 114 and the order which the court may make with regard to maintenance under Section 115.

Secondly, and I regard this to be a stronger point, the question can be asked: Is there really anything in law to give any strong colour to the suggestion that is put forward by the liberal school. Certainly it was not part of our own law before the enactment of the Law of Marriage Act. See for example Iddi d/o Kungunya v. Ali s/o Mpate. 8 And to be sure, there is no provision in the Law of Marriage Act which says so in terms. That throws up a question of judicial policy. It is this: that where there are no clear rules of law governing matters of such general social importance, matters which directly affect the interests of almost every matrimonial couple and which raise issues that might be the subject of public controversy and on which laymen are as well able to decide as lawyers, can the courts properly proceed on their view of public policy? (there is the warning uttered by a judge over a century and half ago that public policy is a most unruly horse, you can never know where it will carry you). Would it not be to encroach on the province of the Legislature? Patel, J. thought so. He observed briskly in the case of Hamid Amir Hamid (supra) that if the Legislature had intended that domestic services performed by a wife be regarded as contribution and joint effort it would have said so in language clear and plain. But the liberal school might put forth the line that the law should be innovative and responsive to societal aspirations. I would embrace that principle. I do understand that judges must develop the law and indeed it is now generally accepted that sometimes they must, and do, legislate. The myth that common law judges merely enunciate or discover the existing law should now stand discredited. Blackstone was, I think, one of the leading proponents of that theory. However, as the great American judge Holmes once said, and many subscribe to that viewpoint, the judges should do so only interstitially, and with molecular rather than molar motions. In 1969 (in his paper which he read at the University College Dar es Salaam) Sir Charles Newbold, then President of the Court of Appeal for East Africa, put the point in this way:

The power of the judges to make Law is a power which can be exercised within very circumscribed limits. The power is exercised in two fields. The first is where rights and duties of a member of the community are determined by legislation; and in that field the circumscribing limits are the doctrines of equity and the indefinable but final customs and needs of the community ... Within the field in which rights and duties are specified by legislation a judge's duty is to apply and enforce the legislation and, save as regards subordinate legislation he cannot challenge the validity or effectiveness of the legislation.

Further, I think perhaps I should read a short passage from the decision of Parke, B. in Egerton v. Brownlow, 9 a passage which has been frequently quoted with approval by many judges including Sir Charles Newbold:

It is the province of the Statesman, and not the Lawyer, to discuss, and of the Legislature to determine, what is best for the public good and to provide by proper enactments. It is the province of the judge to expound the law only; the written from the decisions of our predecessors and of our existing courts, from text-writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is best, in his opinion, for the advantage of the community.

In my considered opinion, I think that if at all there is any grey area in respect of the matter, the appropriate solution to the problem lies in the intervention of the Legislature and not in judicial legislation. But is there a grey area? That leads me to my next point and this is where I would put the emphasis.

 I apprehend that to follow the broad view would be to give recognition to the concept of community of property between the husband and wife - communio bonorum - and perhaps with its logical corollary community of loss and debts. And, specifically, it would run directly counter to Sections 58 and 60 (1) of the Law of Marriage Act and empty those two provisions of all meaningful effect. Those Sections are some of the stricken features of the statute and seem to reflect the notion of separate property. They say that subject to the provisions of Section 59 (which relate to matrimonial homes) and to any agreement the parties may make, any property acquired in the name of the husband or of the wife, presumptively belongs exclusively to that person.

There are material which strongly point to a definite legislative intention that domestic services should not count when the court is dealing with the matter of division of assets under Section 114. In this regard attention should be called to the fact that the Act is based on the work of the Kenya Commission on the Law of Marriage and Divorce which was headed by Spry, J.A. and which is comprised in the Commissions report of August, 1968. The Act borrows heavily from the draft Bill prepared by the said Commission - Appendix VIII to the report. For instance our Sections 58, 60 and 114 are, respectively, exactly the same as Sections 66, 68 and 123 of the draft Bill. Now the view and recommendations of the Spry Commission on the subject now at hand are contained in Paragraphs 177 - 184. It is patently clear that the Commission rejected the broad view and Section 123 of the draft Bill must, therefore be taken to embody or reflect that stand-point. Our Government White Paper No. 1 of 1969 - which preceded the enactment contains nothing which suggests a difference between the idea of the Spry Commission and those of the authors of the White Paper. The White Paper has only a few words about the subject. It is the last sentence of paragraph 19 and it merely says that:

The proposed law should provide expressly that either spouse may own his or her separate property which he or she owned before, or acquired after, marriage.

I am well aware that the Spry Report cannot be treated as authority in any technical sense. But I find it valuable because it provides the background to our Law and helps to discover the intention of the Legislature. I think I can treat the background as strongly indicating that our Legislature adopted the ideas and philosophy contained in that report. It should, therefore, be inferred that the purpose for which Section 114 was enacted by our Legislature was not all that broad as canvassed by the liberal school. It seems, from a historical perspective, that the Section was not designed to help a married woman who has no property or who has failed to acquire any during marriage because of household duties. In other words, it was not written into Section 114 that a wife's marital status and duties should per se make her a partner in the husband's economic enterprises or gains. That in my opinion, is the true construction of the Section.

 I am not of course saying that is good law. I am not for instance gainsaying the fact that one of the ills of the breakdown of marriage is the economic hardship that a woman may have to suffer, where, as is common in Tanzania, the woman has not acquired any property, and I think, therefore, that there is much to commend the liberal viewpoint to serious reflection, and consideration. What I am saying is that the broad view does not comport with the history of the legislation and that the other provisions of the Act would make little sense if that view is adopted. I am saying that if the law is unsatisfactory the proper solution to the problem should be legislative rather than judicial.

We have, with respect, quoted Mapigano, J. at length because he appears to deal adequately with the arguments in favour of the opposite views of the High Court and because we are satisfied that the narrow view is wrong and the broad view is correct. We hereafter demonstrate what we mean.

Although it is correct to say that under English Law, the joint efforts or contribution of spouses is considered directly in relation to the welfare of the family rather than directly in relation to the acquisition of matrimonial or family assets, we do not see any difference between the effect of English and our law on this issue since the welfare of the family is an essential component of the economic activities of a family man or woman. So, it is proper to consider contribution by a spouse to the welfare of the family as contribution to the acquisition of matrimonial or family assets.

  8 [1967] H.C.D. No. 49. 9 (1953) 4 HDCL.

With regard to the fear that the broad view might result in a wife being "allowed to benefit from a marriage which she has wrecked" we think, with respect, that it is misguided because what is in issue is the wife's contribution or efforts towards the acquisition of matrimonial or family assets, and not her contribution towards the breakdown of the marriage. Of course there may be cases where a wife's misbehaviour may amount to failure to contribute towards the welfare of the family and thus failure to contribute towards the acquisition of matrimonial or family assets; but this has to be decided in accordance with the facts of each individual case.

 As to the alleged difficulties of making orders under Section 114 along with orders under Section 115 of the Law of Marriage Act, we do not think that the provision of these two Sections are contradictory or irreconcilable. It is apparent that the two Sections deal with different matters. Section 114 deals with the apportionment of family assets and liabilities in general, whereas Section 115 concerns assignment of a specific liability - that is, the liability to maintain a wife or former wife. Moreover where a former husband is ordered to maintain his former wife after divorce or separation, such an order amounts to a revenue producing asset vested in the wife within the scope of the second category of family assets as defined under paragraph 1064 of Halsbury's Laws of England cited earlier on, and has to be taken into account in the division of available matrimonial or family assets.

The point made that the broad approach to the issue presupposes the existence of common ownership of matrimonial or family assets contrary to the concept of separate ownership recognized under Sections 58 and 60 is not correct since the issue of division of matrimonial or family assets arises only when the Court is granting or has granted a decree of separation or divorce but not otherwise.

 As to the point to the effect that the broad view of the law on the issue is not supported by authority existing before the enactment of the law of Marriage Act, we do not think that it is logical or sensible to take the absence of earlier authority as precluding progress in the law of the land.

The argument that the broad view of the law amounts in effect to judicial legislation, is not supportable since the court is not making or introducing a new rule in a blank or grey area of social relations but is interpreting existing statutory provisions - that is - the words "their joint efforts" and "the contributions made by each party in money, property or work towards the acquiring of the assets" used under Section 114.

 Undoubtedly, these provisions are not free from ambiguity. In such a situation the court has to be guided by the established rules of construction of statutes. Mapigano, J. used the report of the Kenya Commission on the Law of Marriage and Divorce which, it is said, was the basis of our Law of Marriage Act, 1971. We think such a report should be used only as a last resort upon which to make sense of these statutory provisions on application of the normal rules of construction.

One such normal rule of construction of ambiguous provisions is the mischief rule. Under this rule, the court, in looking for the true meaning of ambiguous, statutory provisions, is guided by the defect or mischief which the statute was enacted to rectify or cure. On examination of the Law of Marriage Act, 1971, and the law as it existed before its enactment, one cannot fail to notice that the mischief which the Law of Marriage Act, 1971 sought to cure or rectify was what may be described as the traditional exploitation and oppression of married women by their husbands. It is apparent that the Act seeks to liberate married women from such exploitation and oppression by reducing the traditional inequality between them and their husbands in so far as their respective domestic rights and duties are concerned. Although certain features of traditional inequality still exist under the Act, such as polygamous marriages, these do not detract from the overall purpose of the Act as an instrument of liberation and equality between the sexes.

Guided by this objective of the Act, we are satisfied that the words "their joint efforts" and "work towards the acquiring of the assets" have to be construed as embracing the domestic "efforts" or "work" of husband and wife.

 The other point of law for consideration and decision in this case is whether the appellant (former wife) is entitled to any share in the house in question. On the facts established by the two courts below, it is apparent that the appellant's domestic "efforts" or "work" consisted mainly in looking after the matrimonial home. She neither cooked food nor washed clothes for her husband nor did she make his bed except on the few occasions when he was not travelling in ships abroad. Moreover the couple had no children for her to take care of. As the respondent (former husband) was frequently away from home while working as a Seaman, it is obvious that the main beneficiary of such "effort" or "work" was not the respondent but the appellant herself who lived in that house. Of course this does not mean that her domestic "efforts" or "work" was worthless. It is common knowledge that lack of care of a house results in deterioration of such house.

The principles which guide a court in determining the shares of husband and wife in matrimonial or family assets are spelled out under Sub-section 2 of Section 114 which states:

              (2) In exercising the power conferred by Sub-section (1), the court shall have regard:
                       (a). to the custom of the community to which the parties belong;
                       (b). to the extent of the contributions made by each party in money, property or work                                  towards the acquiring of the assets;
                       (c). to the needs of the infant children, if any, of the marriage, and subject to those                                      considerations, shall incline towards equality of division.

 On the established facts of this case, it would seem that the principles stated in (a) and (b) are the only ones relevant to the present case. The parties are Moslems, and it was established that as a Moslem (or at any rate according to their own sect of Islam) the respondent is expected to give a parting gift to his former wife according to his abilities. We are satisfied that such religious practice, which was undisputed, can properly be construed as a "custom of the community to which the parties belong." The High Court found that the appellant was entitled to shs. 3,000/= under this head. The record shows that she received the money in court. We find no reason to interfere with this payment.

With regard to the principle stated under paragraph (b) of Sub-section 2 of Section 114, it is evident that the extent of the appellant's contribution is indicated by her "efforts" or "work" in looking after the matrimonial home as against the respondent's performance of his own part of domestic obligations towards the appellant. On the established facts the respondent adequately provided for the maintenance and accommodation of the Appellant. As a matter of fact, no complaint is made against him in respect of performance of domestic duties towards his former wife. The question arises whether this diligent performance of his own domestic duties can be taken as disentitling the appellant from claiming a share in matrimonial or family assets. We do not think so. The correct approach is that husband and wife, in performing their domestic duties are to be treated as working not only for their current needs but also for their future needs. In the present case, the appellant, in looking after the matrimonial home, must be regarded as working not only for her current needs but also for her future needs and such future has to be provided from the matrimonial or family assets jointly acquired during the marriage in keeping with the extent of her contribution.

On the facts of this case, the appellant was paid a sum of shs. 18,000/= apparently when the spouses were still resident in Mombasa. The money was to be used by her to set up some family business. She did not use the money for the purpose it was intended. She apparently squandered it away. What is the significance of these facts?

There are two ways of looking at this situation. Firstly, the money can be regarded as an advance made by the respondent towards the future needs of the appellant. Taking into account the nature of the appellant's contribution, the advance of shs. 18,000/= at the time was in our considered view sufficient provision for the future needs of the appellant and she is not entitled to claim a further share in the matrimonial or family assets. Secondly, the squandering of that money by the appellant when weighed against her contribution, can be regarded as a matrimonial misconduct which reduced to nothing her contribution towards the welfare of the family and the consequential acquisition of matrimonial or the family assets. As was said in the English case of Martin v. Martin10 by Cairns, L.J.:
               ... Such conduct must be taken into account because a spouse cannot be allowed to fritter                          away the assets by extravagant living or reckless speculation and then claim as great a                          share of what is left as he would have been entitled to if he had behaved reasonably.

We are satisfied that on this basis also, the appellant is not entitled to claim any share in the available matrimonial or family assets. So this leaves only the sum of shs. 3,000/- already paid and received in accordance with the religious customs of the parties. In the final analysis therefore, this appeal fails and we hereby dismiss it. Bearing in mind that this is a legal aid case, we see no reason to order the appellant to pay costs. Each party therefore is to bear his or her own costs and we order accordingly.

 10 [1976] 3 All E.R. 625.


Aknonaay and Lohay v. Attorney General, Civil Appeal No. 31 of 1994, Court of Appeal - Tanzania

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]. 






2. JOSEPH LOHAY ...........................RESPONDENT 

(Appeal from the Judgement of the High Court of Tanzania at Arusha) 

(Justice Munuo) 

dated 21st October, 1993 
The High Court Miscellaneous Civil Cause No. 1 of 1993 



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 referring 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.




Friday, December 16, 2016



Mwanzilishi mwenza wa mtandao wa kijamii wa maarufu ujulikanao kama Jamii Forum, Bw. Maxence Melo Mubyazi alifikishiwa kwenye vyombo vya usalama tarehe 14/12/2016 `kwa kutaa kutoa taarifa za siri za watumiaji wa mtandao wa Jamii forum, kitu ambacho amekiwekea msimamo wakutofanya alivyoamriwa ikiwa kama uvunjwaji wa sheria na haki za wananchi. Maxence alitiwa chini ya ulinzi zaidi ya masaa ishirini na nne bila kufikishwa mahakamani huku ikiwa ni kinyume na Katiba ya Jamhuri ya Muungano wa Tanzania ya mwaka 1977,Ibara ya 15 inayotoa haki kwa kila mtu kuwa huru na kuishi kama mtu huru. 
Maxence anakamatwa kukiwa na kesi ya kikatiba dhidi ya taarifa ambazo Jeshi la polisi wanazitaka, kesi namba 9 ya mwaka 2016 dhidi ya Jamii Media dhidi ya polisi na Mwanasheria Mkuu wa Serikali ,kesi ambayo mahakama kuu itatolea hukumu tarehe 20 Februari. 
Maxence amefikishwa mahakama ya Hakimu Mkazi Kisutu, Dar es salaam na kushtakiwa kwa makosa matatu likiwemo lakuendesha na kumiliki tovuti ambayo haijasajiliwa hapa nchini kinyume na sheria. Makosa mengine mawili aliyoshtakiwa nayo ni kuzuia uchunguzi wa Jeshi la polisi, la tatu limemfanya Max kutoweza kupewa dhamana kwa kutosajili tovuti yao kwa kikoa cha (.com) badala ya (.co.tz) jambo ambalo Serikali inadai ni kinyume na sheria. Max amepelekwa gereza la keko mpaka Jumatatu. #FREEMAXENCEMELO2016 #FREEMAXENCEMELO  #JAMIIFORUMS

Saturday, August 13, 2016


Afrika Mashariki na Kati hutoweza kuonngelea sanaa na mziki kwa sasa bila kumtaja Msanii wa Kitanzania Diamond Platnumz alias Nasib Abdul. Msanii huyu anayefanya kazi zake kwa vionjo vya Bongo Fleva na Afro Pop huku akijizolea umaarufu mkubwa kitaifa na kimataifa kwa kufanya matamasha mengi na kunyakua tuzo nyingi tofautii tofauti. Pia Msanii huyu ni Balozi wa Makampuni mbalimbali makubwa nje na ndani ya Tanzania kama DSTV multi choice, Red Gold, Vodacom, Coca Cola, Uber na nyinginezo. Kwa taarifa ambazo hazijadhibitika kiundani zinasema kuwa Diamond Platnumz anadau la kuanzia Tshs milioni 7.9 hadi Tshs milioni 8 kwa matamasha ya ndani ya nchi na kujiweka katika viwango vizuri kimataifa kwa zaidi ya dau la Tshs milioni 51.6 na kuendelea.
Mwanamziki Diamond ambaye anashikilia rekodi kubwa ya kushinda Tuzo nyingi pia anamejizolea na kuendelea kujizolea utajiri zaidi kupitia milio ya simu yenye nyimbo zake na ndio msanii pekee ambaye hupendelewa sana kimachaguo ya miito ya simu kitaifa. Pia nyimbo zake hushikilia rekodi nzuri za upakuaji kwenye mitandao mbalimbali ndani na nje ya Taifa la Tanzania.
Pia msanii huyu ana vitega uchumi vingi kama Real estates properties zikiwemo apartments, viwanja na biashara mbalimbali jiji Dar es Salaam. Kwasasa amewekeza pia katika lebo yake mpya ijulikanayo kama Wasafi Classic Baby (WCB) nyeneye wasanii maarufu kama Rich Mavoko na Queen Darling na wengine chipukizi kama Harmonize na Rayvan. Hadi sasa Msanii Diamond Platnumz amefikisha nyimbo zaidi ya 150 kama yeye binafsi na kiushirikishaji ndani na nje ya Tanzania.


Kwa wale wapenzi wa mchezo wa masumbwi hapa nchini mnamwelea Bondia Francis Cheka ambaye amejishindia mataji mengi ndani na nje ya nchi katika mapambano mbalimbali aliyowahi kushiriki. Bondia Cheka yuko tayari kuonyesha mchango wake wa kusaidia jamii katika kuweka mazingira safi na mambo mengine ya kimazingira. Rasmi Mkuu wa Mkoa wa Dar es Salaam Ndugu Paul Makonda ambaye yuko mstari wa mbele kuhakikisha kuwa mkoa wake ama jiji la Dar es Salaam linakuwa safi amefanya kuandaa pambano rasmi la masumbwi dhidi yake na Bondia Francis Cheka siku ya Agosti 27 ili kuhamasisha swala la usafi ndani ya jiji.

Monday, August 8, 2016


Mchezaji soka wa klabu ya Juventus ya nchini Italia Paul Pogba ambaye ni raia wa Taifa la Ufaransa amepata wakati wa kwenda kufanyiwa vipimo vya afya katika kablu ya Manchester United ya Uingereza. Awali kulikuwa na tetesi nyingi juu ya mshambuliaji huyu kuchepukia kwenye vilabu vingi maarufu duniani katika mabara ya Ulaya na Hispania zikiwemo vilabu vya Barcelona na Real Madrid kwa uhamisho wa dau kubwa zilizokadiriwa kufikia Euro 100 milioni. Kwa sasa mchezaji huyu machachari ana nafasi kubwa ya kujiunga na kikosi cha The Special One chini ya Kocha Mreno Jose Mourihno pale Old Trafford Uingereza.