By Evarist Baimu Nyaga Mawalla - Home

More documents

Recommendations

Info

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
separation of powers enshrined in the Constitution; and (4) the trial judge was wrong instriking down the entire statute after finding only four sections to be unconstitutional.JudgmentNyalali, C.J.This case clearly demonstrates how an understanding of our Country’s past is crucial to abetter understanding of our present, and why it is important while understanding ourpast, to avoid living in that past. The respondents, namely, Lohay Akonaay and JosephLohay are further and son, living in the village of Kambi ya samba, Mbulumbumbuluward, Mbulu District, in Arusha Region. In January, 1987 the successfully instituted aresuit in the court of the resident magistrate for Arusha Region for recovery for a piece ofland held under customary law. An eviction order was subsequently issued for eviction ofthe judgment debtors and the respondent were given possession of the piece of land inquestion. There is currently an appeal pending in the high court at Arusha against thejudgment of the trial court, this is Arusha high court civil appeal No. 6 of 1991 while thisappeal was pending, a new law, which came in force on the 28 th December, 1992 wasenacted by the parliament, declaring the extinction of customary right in land, prohibitingthe payment of compensation for such extinction, ousting the jurisdiction of the courts,terminating proceedings pending in the court, and prohibiting the enforcement of anycourt decision or degree concerning matters and respect of which jurisdiction was ousted.The law also established, inter alia, a tribunal with exclusive jurisdiction to deal with thematters taken out of the jurisdiction of the court. This new law is the regulation of landtenure (established villages) act, 1992 hereinafter called Act No. 22 of 1992.Aggrieved by this new law, the respondents petitioned against the Attorney-General inthe High Court, under Articles 30 (3) and 26 (2) of the constitutional of the UnitedRepublic of Tanzania, for a declaration to the effect that the new law is unconstitutionaland consequently null and void. The High Court, Munuo J. granted the petition andordered the new law struck off the statute book. The Attorney-General, assisted my Mr.75
Page 1 and 2:
A COMPILATION OF CASES OF JUDICIAL
Page 3 and 4:
4.3 Assistant Imports controller v
Page 6 and 7:
appropriate respondent, i.e, if in
Page 8 and 9:
the individual complaining of breac
Page 10 and 11:
of the Constitution that there shou
Page 12 and 13:
y one judge of the High Court. Desp
Page 14:
Question(1) Their Lordship can deal
Page 17 and 18:
ights and freedoms to satisfy the r
Page 19 and 20:
The contravention was in the past;
Page 21 and 22:
is entitled. The respondent must pa
Page 23 and 24: independence, as the result of nego
Page 25 and 26: emedy, but only by consent of the C
Page 27 and 28: policy justifies these distinctions
Page 29 and 30: compulsorily on payment of .compens
Page 31 and 32: have already touched on this. I do
Page 33 and 34: ‘s favour would have been a right
Page 35 and 36: in cases of judicial misbehavior, a
Page 37 and 38: of course, is not in the ordinary s
Page 39 and 40: of these provisions is to ensure th
Page 41 and 42: which he appealed by special leave.
Page 43 and 44: does not exclude the application of
Page 45 and 46: “………no person should be pun
Page 47 and 48: state. By section 19 (2) of the Cro
Page 49 and 50: tot for anything done by Maharaj J.
Page 51 and 52: of this section ;and (b)to determin
Page 53 and 54: this was a finding that the judge,
Page 55 and 56: February 27. The judgment of the ma
Page 57 and 58: It was a state act performed by the
Page 59 and 60: A defendant is always entitled to k
Page 61 and 62: to come before the House of Lord’
Page 63 and 64: The key word here is “inseparable
Page 65 and 66: Assuming that “commonwealth” wa
Page 67 and 68: the High Court within a limited tim
Page 69 and 70: Ouster clauses which take effect on
Page 71 and 72: jurisdiction if they are disputed b
Page 73: eviction by NAFCO. The special and
Page 77 and 78: 2. that the Honorable trial judge e
Page 79 and 80: section 2 of land ordinance, 1922 i
Page 81 and 82: statutorily on trust for the benefi
Page 83 and 84: such consent is required only in ca
Page 85 and 86: language of that section precludes
Page 87 and 88: There is merit in this ground of ap
Page 89 and 90: section 4 and would undoubtedly hav
Page 91 and 92: Clearly this section in unconstitut
Page 93 and 94: ional crystallization, of the idea
Page 95 and 96: That, the exparte application for t
Page 97 and 98: espect, after all is said, and writ
Page 99 and 100: to BAWATA’s Secretary General who
Page 101 and 102: From the above persuasive cases, I
Page 103 and 104: opinion, that where the Court used
Page 105 and 106: JudgeCourt: Now case to be referred
Page 107 and 108: the charge had already been entered
Page 109 and 110: was violative of her basic right as
Page 111 and 112: in that court, and in the course of
Page 113 and 114: In the result the appeal by the Dir
Page 115 and 116: that the proceedings before the Tri
Page 117 and 118: Prof. Shivji urged that when the ma
Page 119 and 120: Administered by inferior tribunals
Page 121 and 122: was found to be a nullity for irrat
Page 123 and 124: Those who espouse the narrow approa
Page 125 and 126:
31. (1985) At p. 3532. One of the p
Page 127 and 128:
Application on merits. Mandamus iss
Page 129 and 130:
Those who exist above the people mu
Page 131 and 132:
November 1986 they made a market su
Page 133 and 134:
In the case at hand of course the a
Page 135 and 136:
of each case, but it a fundamental
Page 137 and 138:
I note that in the Advisory Committ
Page 139 and 140:
The complaint is not that a person
Page 141 and 142:
The applicants. Who were bidding in
Page 143 and 144:
A paradigm,but not the only case of
Page 145 and 146:
claims not to contain legal rules,
Page 147 and 148:
743. All these cases show that it i
Page 149 and 150:
as conclusive of the absence of a c
Page 151 and 152:
The code is therefore framed in non
Page 153 and 154:
“In my view to allow English citi
Page 155 and 156:
eceive a further ⅔ per cent based
Page 157 and 158:
alternative and that, reading the u
Page 159 and 160:
On the morning of 25 November 1986
Page 161 and 162:
The issue is thus whether the histo
Page 163 and 164:
The Criminal Injuries Compensation
Page 165 and 166:
part of decision - makers and for b
Page 167 and 168:
Nothing that I have said can fetter
Page 169 and 170:
underestimating the extent tot whic
Page 171 and 172:
egulation” may be misleading. The
Page 173 and 174:
More recently, in Reg. v. British B
Page 175 and 176:
NICHOLLS L.J. I entirely agree with
Page 177 and 178:
The code also contains some detaile
Page 179 and 180:
appellant was tried on a count char
Page 181 and 182:
founder parties should have used th
Page 183 and 184:
(4) Since the case is based on aver
Page 185 and 186:
Thus we held that any member of the
Page 187 and 188:
procedure prescribed by Order 1, ru
Page 189 and 190:
It is settled in our constitutional
Page 191 and 192:
of judicial innovation to say that
Page 193 and 194:
It follows from the foregoing that
Page 195 and 196:
will not succeed. The court cannot
Page 197 and 198:
The petition originally raised very
Page 199 and 200:
disclosed in that context. He maint
Page 201 and 202:
of the legislation and that there i
Page 203 and 204:
…the restriction imposed at commo
Page 205 and 206:
This provision, in my view, caters
Page 207 and 208:
I agree and can not wish to add any
Page 209 and 210:
It is contended by the petitioner t
Page 211 and 212:
It extends to modification of those
Page 213 and 214:
These amendments were, therefore, v
Page 215 and 216:
courts in respect of the stay of su
Page 217 and 218:
namely, an assembly or procession n
Page 219 and 220:
of law and order. I provision like
Page 221 and 222:
Until the Legislature makes appropr
Page 223 and 224:
his representatives; the right to r
Page 225 and 226:
in the Constitution? In that case t
Page 227 and 228:
to appoint persons to offices in th
Page 229 and 230:
I hereby certify that this is a tru
Page 231 and 232:
It is sworn further that in the cou
Page 233 and 234:
applicants. And if I may say now, a
Page 235 and 236:
A part from the applicants obligati
Page 237 and 238:
It seems that this issue once decid
Page 239 and 240:
Finally, Mr. Werema made an alterna
Page 241 and 242:
to find a case which shows there is
Page 243 and 244:
Delivered.Dr. Lamwai for the Applic
Page 245 and 246:
However, he pointed out that it is
Page 247 and 248:
IN THE COURT OF APPEAL OF TANZANIAA
Page 249 and 250:
anything, he was simply answering w
Page 251 and 252:
appellants the opportunities of bei
Page 253 and 254:
For these reasons we are satisfied
Page 255 and 256:
jurisdiction to go wrong. Neither a
Page 257 and 258:
Essentially these grounds are alleg
Page 259 and 260:
in agreement. However, the advocate
Page 261 and 262:
Attorney General was duly summoned,
Page 263 and 264:
Once we hold as indeed we do, that
Page 265 and 266:
surfaced from the very beginning. I
Page 267 and 268:
of Dodoma Zone Mr. Mwambe duly inst
Page 269 and 270:
26 Act No. 16 of 198427 Chapter 360
Page 271 and 272:
the case of Attorney-General v. Les
Page 273 and 274:
1991on the Democratic system in Tan
Page 275 and 276:
efusal in short the decisions were
Page 277 and 278:
public interest should not be too b
Page 279 and 280:
operation was “thoroughly outdate
Page 281 and 282:
In the final analysis, I find that
Page 283 and 284:
J. dated the 24 th day of October,
Page 285 and 286:
though we felt that the learned Sta
Page 287 and 288:
(a). that every persons shall, when
Page 289 and 290:
The more difficult question is whet
Page 291 and 292:
Turning now to the requirement that
Page 293 and 294:
The appeal is allowed with cast, an
Page 295 and 296:
6. Tanzania Air service ltd v minis
Page 297 and 298:
A company (Cyanamid) register a pat
Page 299 and 300:
506 All England Law Reports (1975)
Page 301 and 302:
a. patents in 1953 (Lowe) and 1954
Page 303 and 304:
efore any question of balance of co
Page 305 and 306:
object that I have indicated above
Page 307 and 308:
this. Returning therefore to the in
Page 309 and 310:
MAGNUM AGENCLES COMPANY LIMITED RES
Page 311 and 312:
Without going into his locals stand
Page 313 and 314:
BANK OF TANZANIA MWANZABut the prop
Page 315 and 316:
Similarly the present record does n
Page 317 and 318:
78 TANZANIA LAW REPORTS (1987) T.L.
Page 319 and 320:
Maina ,J This is an application to
Page 321 and 322:
e made informally. But with respect
Page 323 and 324:
82 TANZANIA LAW REPORTS (1987)T.L.R
Page 325 and 326:
Temeke, Dar es salaam, delivered in
Page 327 and 328:
3. that the reference was in any ev
Page 329 and 330:
2. that the application has no righ
Page 331 and 332:
c.c.s.u v, minste for civil service
Page 333 and 334:
communications headquarters (GCHQ)
Page 335 and 336:
)2) of the European Convention on H
Page 337 and 338:
dismiss persons refusing to accept
Page 339 and 340:
matters relating to the dispassion
Page 341 and 342:
extending he requirement of natural
Page 343 and 344:
continue to be enjoyed although mig
Page 345 and 346:
the grounds upon which administrati
Page 347 and 348:
alter right or obligations enforcea
Page 349 and 350:
I agree with your Lordships tat thi
Page 351 and 352:
the appellants employment be termin
Page 353 and 354:
The trial judge dismissed appellant
Page 355 and 356:
the view that the appellant’s ter
Page 357 and 358:
Court did not stop there. It consid
Page 359 and 360:
In English I have been instructed t
Page 361 and 362:
the respondents such order was gran
Page 363 and 364:
to response to the .. of an appell
Page 365 and 366:
Was Annex D.1 made in bad faith? Th
Page 367 and 368:
when questioning the constitutional
Page 369 and 370:
24 th May 1991 informing the appell
Page 371 and 372:
We are therefore of the opinion tha
Page 373 and 374:
him of that decision is in our view
Page 375 and 376:
usurp the function of the High Cour
Page 377 and 378:
MAUGHAM in maritime Elective C. Ltd
Page 379 and 380:
We again agree with the learned jud
Page 381 and 382:
However, the learned judge skipped
Page 383 and 384:
filing of statements could not be s
Page 385 and 386:
even to seem to express an opinion
Page 387 and 388:
As we have already intimated the te
Page 389 and 390:
the removal. But we reject the earl
Page 391 and 392:
the Daily News and Uhuru newspapers
Page 393 and 394:
M.D. BOMANIAg. JUSTICE OF APPEALJ.L
Page 395 and 396:
Both parties are represented by cou
Page 397 and 398:
THE SECUTITY FO EMPLOYMENT ACT 1964
Page 399 and 400:
administrative law as seriously as
Page 401 and 402:
interest are at stake. In any other
Page 403 and 404:
the fundamentals of good administra
Page 405 and 406:
mandamus should be made but it must
Page 407 and 408:
6. EXERCISE OF DISCRETIONARY POWERS
Page 409 and 410:
Mr. Mselem was at a loss to know un
Page 411 and 412:
under s. 3 (3) of Cap. 104 and none
Page 413 and 414:
affidavit and the representations o
Page 415 and 416:
17 th June 1987 requiring him to le
Page 417 and 418:
SongeaMohamed Ally Athumani now 54
Page 419 and 420:
Ally Athumani PW1 had received. He
Page 421 and 422:
Home is cases of ones in search of
Page 423 and 424:
nothing about the subject matter as
Page 425 and 426:
commissioner of Songea District was
Page 427 and 428:
in all details to the one issued to
Page 429 and 430:
approved by village Governments. DW
Page 431 and 432:
forces that are always inconsistent
Page 433 and 434:
under the Business licincing Act No
Page 435 and 436:
applicants these could definitely n
Page 437 and 438:
person against who he intends issue
Page 439 and 440:
dealings. Expedient is not this Rep
Page 441 and 442:
espondent to discharge its function
Page 443 and 444:
(i) an order of certiorari 8 and se
Page 445 and 446:
Mr. Mwaikusa argued that the releva
Page 447 and 448:
that the Government has set on itse
Page 449 and 450:
AT DODOMACIVIL CASE NO. 23 OF 1993J
Page 451 and 452:
for Tabora Region . By a letter dat
Page 453 and 454:
of the Constitution or the law of t
Page 455 and 456:
Another important consideration und
Page 457 and 458:
have been taken into account, wheth
Page 459 and 460:
withstanding the existence of an ou
Page 461 and 462:
arbitrary decision. And it offends
Page 463 and 464:
to the Principal Secretary to the P
Page 465 and 466:
I heard long and interesting arqume
Page 467 and 468:
public interest; second, it is the
Page 469 and 470:
the former the Principal Secretary
Page 471 and 472:
I think I can dispose of this matte
Page 473 and 474:
the whole field of the law relating
Page 475 and 476:
declaration except in a negative so
Page 477 and 478:
itom 108(1) of the First schedule t
Page 479 and 480:
egards the commission’s report, t
Page 481 and 482:
RULLINGSAMATTA, JK:This is an appli
Page 483 and 484:
impugned decision. As expected, I w
Page 485 and 486:
(g) on retirement in circumstances,
Page 487 and 488:
etire otherwise than on disciplinar
Page 489 and 490:
(c) for pupose of facilitating impr
Page 491 and 492:
“Whatever pleases the emperor has
Page 493 and 494:
decision has, I agree with Mr Nasso
Page 495 and 496:
Before I part with this application
Page 497 and 498:
7. REMEDIES1. Ajit Gordhan v Direct
Page 499 and 500:
21. Simeon Manyaki v Executive Comm
Page 501 and 502:
of which was annexed to the affidav
Page 503 and 504:
The above position was enshrined in
Page 505 and 506:
such as damages or on injunction. T
Page 507 and 508:
Should the prayer then be granted i
Page 509 and 510:
No cases referred to.Omar and Musta
Page 511 and 512:
IN THE HIGH COURT OF TANZANIAAT DAR
Page 513 and 514:
alleged circumstance, it is further
Page 515 and 516:
Mr Mallaba has traced the history o
Page 517 and 518:
Mr. Kisusi submits further that sin
Page 519 and 520:
ANDESSO STANDARD TANZANIA LIMITED .
Page 521 and 522:
proceed by way certiorari. He can f
Page 523 and 524:
AT MWANZACORAM: OMAR, J.A. HNZAVAS,
Page 525 and 526:
G.N. 41/92, the second respondent i
Page 527 and 528:
ecause it violates Article 13 of th
Page 529 and 530:
tenants, one enjoying legal protect
Page 531 and 532:
the provisions of the Rent Restrict
Page 533 and 534:
Lastly, in ground 5 the appellants
Page 535 and 536:
R V Income Tax Special Purposes Cou
Page 537 and 538:
had interfered with the administrat
Page 539 and 540:
LORD TEMPLEMAN. Parliament makes th
Page 541 and 542:
LORD GRIFEITHS. My Lords, I have ha
Page 543 and 544:
Because of this, it is normally unn
Page 545 and 546:
students at his school; that he was
Page 547 and 548:
unnaturally took the view that the
Page 549 and 550:
solicitor later at about 12.30 am v
Page 551 and 552:
Mr Baker was arranged for 4 pm that
Page 553 and 554:
counsel with whem a conference took
Page 555 and 556:
easonably benevolent construction o
Page 557 and 558:
Lord Donalsdson MR described Mr Bak
Page 559 and 560:
was made without jurisdiction, then
Page 561 and 562:
Court has been given . If the appli
Page 563 and 564:
in the earlier case may have coused
Page 565 and 566:
As the Sovereign cannot authorize w
Page 567 and 568:
When dismissiong the action Romer I
Page 569 and 570:
the Crown. (In this summary 1 put o
Page 571 and 572:
emedy against theCrown was not conf
Page 573 and 574:
easonable doubt as to the identity
Page 575 and 576:
Section 23 (2) (2) refers to petiti
Page 577 and 578:
Corwn in general, then s 21 (2) wou
Page 579 and 580:
epresenting the Crown, the third th
Page 581 and 582:
obtain an injunction (see also Merr
Page 583 and 584:
A both because there would be an in
Page 585 and 586:
It is interesting to note the comme
Page 587 and 588:
prohivition or certiorari (b) the n
Page 589 and 590:
proceedings as was available to you
Page 591 and 592:
lack of jurisdiction to grant inter
Page 593 and 594:
egarded as being open to challenge
Page 595 and 596:
quite out of accord with practice,
Page 597 and 598:
The validity of the injunction gran
Page 599 and 600:
IN THE HIGH COURT OF TANZANIAAT SON
Page 601 and 602:
October; 1993, the Regional Commiss
Page 603 and 604:
statutory authority for doing so, t
Page 605 and 606:
egulation 10 as read with S. 55 (1)
Page 607 and 608:
(4) In such a case the tribunal, wh
Page 609 and 610:
the penalty demands notwithstanding
Page 611 and 612:
question I have posed and speaking
Page 613 and 614:
first two prayers, to wit, orders o
Page 615 and 616:
and illegally taking then away from
Page 617 and 618:
I conceded that as wrong in view of
Page 619 and 620:
unquestionability upon its decision
Page 621 and 622:
deciding what the decision-maker sh
Page 623 and 624:
ut the judges must observe the cons
Page 625 and 626:
intended to furtmore national polic
Page 627 and 628:
society. That observation applies t
Page 629 and 630:
In the event, the prayer for a decl
Page 631 and 632:
25 th January 1978. However on 5 th
Page 633 and 634:
missing from the trial court record
Page 635 and 636:
One of the conditions set out in th
Page 637 and 638:
(a) that up to the 5 th February, 1
Page 639 and 640:
With regard to this passage of the
Page 641 and 642:
Patman Garments Industries Limited
Page 643 and 644:
dishonoured, or if he had broken th
Page 645 and 646:
Decree of the High Court and declar
Page 647 and 648:
y the Institute during the 1983/84
Page 649 and 650:
obdurate if not- thoroughly uncoope
Page 651 and 652:
examination papers to NBAA for mode
Page 653 and 654:
against him, so that he could effec
Page 655 and 656:
maters as the leakage of examinatio
Page 657 and 658:
Q. Can you tell us anything strange
Page 659 and 660:
IN THE HIGH COURT OF TANZANIA\MAIN
Page 661 and 662:
against a government minister or de
Page 663 and 664:
injunctive relief is sought? Althou
Page 665 and 666:
appears to have done, to hold that
Page 667 and 668:
the applicant leave to apply review
Page 669:
669
show all

By Evarist Baimu Nyaga Mawalla - Home

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?