By Evarist Baimu Nyaga Mawalla - Home

Tanzania, for declaration that the new law was Unconstitutional and consequently nulland void.The High Court of Tanzania at Arusha, presided by Munuo, J. granted the petition andordered the entire new law to be stuck off the statute book. The Attorney-General did notagree with this decision and appealed to the Court of Appeal of Tanzania.The court of Appeal in its decision first of all began by ascertaining the facts which werenot in dispute between the parties. These were: during colonial period the respondentsacquired a piece of land under customary law; between 1970 and 1977 there was acountry-wide operation known as Operation Vijiji, though which majority of ruralpopulation scattered in various part of the country were forcefully moved into villagers,the respondents were dissatisfied with the re-allocation exercise and that is way theyinstituted the aforementioned suit. In 1987 a subsidiary legislation was made by thegovernment i.e the Extinction of Customary Land Rights Order, 1987 which had theeffect of extinguishing all customary rights in land in 92 villages listed in its schedule.The respondents village was also covered by this by-law.The central issue was whether customary rights in land (deemed rights of occupancy) areconstitutional rights recognized under the constitution and ought to be protected asproperty.The Court of Appeal held that: (1) the President holds public land on trust for theindigenous inhabitants of this country; and as a trustee, his power is limited in that he cannot deal with public land in a manner in which he wishes or to the detriment of thebeneficiaries of that land; and he cannot be the beneficiary of public land; (2).Customary or deeded rights in land are a real property protected by the Constitution andtheir deprivation without fair compensation is prohibited by the Constitution; (3) theprovisions of the Act which oust the jurisdictional the courts of law and those givingexclusive jurisdiction to the tribunal were unconstitutional for they offend the doctrine of74