By Evarist Baimu Nyaga Mawalla - Home

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Is the trial judge correct? We have considered this momentous issue with the judicialcare it deserves. We realize that if the Deputy Attorney-General is correct then mostof the inhabitants of Tanzania mainland are no better that squatters in their owncountry. It is our duty to agree with the deputy attorney-General, without fear orfavour, after closely examining the relevant law and the principles underlying it.In order to ascertain the correct legal poison, we have had to look at the historicalbackground o Tanzania. Since the establishment of British rule. This exercise hasbeen most helpful in giving us an understand on the nature frights or interests inlandon the mainland of Tanzania. This historical background shows that the overridinglegal concern o the British authorities, no bodily under the influent of the Mandate ofthe League of National and subsequently of Trusteeship council, with regard to land,was to safeguard protect, and not to derogate from, the rights inland of the indigenousinhabitants. This Is apparent in the preamble to what was then known as the landtenure ordinance, 1923 which came into force on 26 January, 1923. the preamblereads:Whereas it is expedient that the existing customary rights of the native of theTanganyika territory to use and enjoy the land of the territory and the natural traitsthereof in sufficient posterity should be assured, protected and preserved:AND WHEREAS it is expedient that the rights and obligations of the Government inregard to the whole of the lands within he territory and also the rights and obligationsof cultivators or other persons claiming to have an interest in such land should bedefined by law.BE IT THEREFORE ENACTED by the Governor and commanded-in-Chief of theTanganyika territory as follows:It is well know that after a series of minor amendment over a periods of time, the landordinance assumed its present title and form as the land ordinance, cap 113. Its basicfeatures is that all land is declared to be public land and is vested in the governing80
statutorily on trust for the benefit of the indigenous inhabitant of this country. Thisappears in section 3 and 4 of the ordinance.The underlying principle of assuring, protecting and preserving customary rights inland is also reflected under Article 8 of the Trusteeship Agreement, under which theMainland of Tanzania was entrusted by the united national to the British Government.Article 8 reads:In framing laws relating to the holding or transfer of land and natural resources theAdministering Authority who take into consideration native laws and customs, andshall respect the rights and safeguard the interests, both present and future, of thenative population. No native land or natural resources may be transferred exceptbetween native, eave with the previous consent of the competent public authority. Noreal rights over native land or natural resources in favour of non-natives may becreated except with the same consent.With this background in mind, can it be said that the customary or deemed rights ofoccupancy recognized under the land ordinance are not property qualifying forprotection under Article 24 of the constitution? The deputy Attorney-General hassubmitted to the effect that the customary or deemed rights of occupancy, thou inordinary parlance may be regarded as property, are not constitutional property withinthe scope of Article 24 because they lack the minimum characteristic of property asoutlined by Thomas Allen in his article earlier mentioned where he states.The precise content of the bundle of right varies between legal systems, butnonetheless it is applied thought the commonwealth. At minimum, the bundle hasbeen taken to include the right to exclude others form the thing owned, the right touse or receive income from it, and the right to transfer to others. According to themajority of commonwealth cases, an individual has property once he or she has asufficient quality of these rights in a thing. What is “sufficient” appears to vary from81
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A COMPILATION OF CASES OF JUDICIAL
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4.3 Assistant Imports controller v
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appropriate respondent, i.e, if in
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the individual complaining of breac
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of the Constitution that there shou
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y one judge of the High Court. Desp
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Question(1) Their Lordship can deal
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ights and freedoms to satisfy the r
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The contravention was in the past;
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is entitled. The respondent must pa
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independence, as the result of nego
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emedy, but only by consent of the C
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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 and 74: eviction by NAFCO. The special and
Page 75 and 76: separation of powers enshrined in t
Page 77 and 78: 2. that the Honorable trial judge e
Page 79: section 2 of land ordinance, 1922 i
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
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November 1986 they made a market su
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In the case at hand of course the a
Page 135 and 136:
of each case, but it a fundamental
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I note that in the Advisory Committ
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The complaint is not that a person
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The applicants. Who were bidding in
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A paradigm,but not the only case of
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claims not to contain legal rules,
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743. All these cases show that it i
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as conclusive of the absence of a c
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The code is therefore framed in non
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“In my view to allow English citi
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eceive a further ⅔ per cent based
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alternative and that, reading the u
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On the morning of 25 November 1986
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The issue is thus whether the histo
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The Criminal Injuries Compensation
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part of decision - makers and for b
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Nothing that I have said can fetter
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underestimating the extent tot whic
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egulation” may be misleading. The
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More recently, in Reg. v. British B
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NICHOLLS L.J. I entirely agree with
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The code also contains some detaile
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appellant was tried on a count char
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founder parties should have used th
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(4) Since the case is based on aver
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Thus we held that any member of the
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procedure prescribed by Order 1, ru
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It is settled in our constitutional
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of judicial innovation to say that
Page 193 and 194:
It follows from the foregoing that
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will not succeed. The court cannot
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The petition originally raised very
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disclosed in that context. He maint
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of the legislation and that there i
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…the restriction imposed at commo
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This provision, in my view, caters
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I agree and can not wish to add any
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It is contended by the petitioner t
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It extends to modification of those
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These amendments were, therefore, v
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courts in respect of the stay of su
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namely, an assembly or procession n
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of law and order. I provision like
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Until the Legislature makes appropr
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his representatives; the right to r
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in the Constitution? In that case t
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to appoint persons to offices in th
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I hereby certify that this is a tru
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It is sworn further that in the cou
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applicants. And if I may say now, a
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A part from the applicants obligati
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It seems that this issue once decid
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Finally, Mr. Werema made an alterna
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to find a case which shows there is
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Delivered.Dr. Lamwai for the Applic
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However, he pointed out that it is
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IN THE COURT OF APPEAL OF TANZANIAA
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anything, he was simply answering w
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appellants the opportunities of bei
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For these reasons we are satisfied
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jurisdiction to go wrong. Neither a
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Essentially these grounds are alleg
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in agreement. However, the advocate
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Attorney General was duly summoned,
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Once we hold as indeed we do, that
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surfaced from the very beginning. I
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of Dodoma Zone Mr. Mwambe duly inst
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26 Act No. 16 of 198427 Chapter 360
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the case of Attorney-General v. Les
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1991on the Democratic system in Tan
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efusal in short the decisions were
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public interest should not be too b
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operation was “thoroughly outdate
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In the final analysis, I find that
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J. dated the 24 th day of October,
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though we felt that the learned Sta
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(a). that every persons shall, when
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The more difficult question is whet
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Turning now to the requirement that
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The appeal is allowed with cast, an
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6. Tanzania Air service ltd v minis
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A company (Cyanamid) register a pat
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506 All England Law Reports (1975)
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a. patents in 1953 (Lowe) and 1954
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efore any question of balance of co
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object that I have indicated above
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this. Returning therefore to the in
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MAGNUM AGENCLES COMPANY LIMITED RES
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Without going into his locals stand
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BANK OF TANZANIA MWANZABut the prop
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Similarly the present record does n
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78 TANZANIA LAW REPORTS (1987) T.L.
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Maina ,J This is an application to
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e made informally. But with respect
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82 TANZANIA LAW REPORTS (1987)T.L.R
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Temeke, Dar es salaam, delivered in
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3. that the reference was in any ev
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2. that the application has no righ
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c.c.s.u v, minste for civil service
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communications headquarters (GCHQ)
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)2) of the European Convention on H
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dismiss persons refusing to accept
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matters relating to the dispassion
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extending he requirement of natural
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continue to be enjoyed although mig
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the grounds upon which administrati
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alter right or obligations enforcea
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I agree with your Lordships tat thi
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the appellants employment be termin
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The trial judge dismissed appellant
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the view that the appellant’s ter
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Court did not stop there. It consid
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In English I have been instructed t
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the respondents such order was gran
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to response to the .. of an appell
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Was Annex D.1 made in bad faith? Th
Page 367 and 368:
when questioning the constitutional
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24 th May 1991 informing the appell
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We are therefore of the opinion tha
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him of that decision is in our view
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usurp the function of the High Cour
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MAUGHAM in maritime Elective C. Ltd
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We again agree with the learned jud
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However, the learned judge skipped
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filing of statements could not be s
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even to seem to express an opinion
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As we have already intimated the te
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the removal. But we reject the earl
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the Daily News and Uhuru newspapers
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M.D. BOMANIAg. JUSTICE OF APPEALJ.L
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Both parties are represented by cou
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THE SECUTITY FO EMPLOYMENT ACT 1964
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administrative law as seriously as
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interest are at stake. In any other
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the fundamentals of good administra
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mandamus should be made but it must
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6. EXERCISE OF DISCRETIONARY POWERS
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Mr. Mselem was at a loss to know un
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under s. 3 (3) of Cap. 104 and none
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affidavit and the representations o
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17 th June 1987 requiring him to le
Page 417 and 418:
SongeaMohamed Ally Athumani now 54
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Ally Athumani PW1 had received. He
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Home is cases of ones in search of
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nothing about the subject matter as
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commissioner of Songea District was
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in all details to the one issued to
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approved by village Governments. DW
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forces that are always inconsistent
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under the Business licincing Act No
Page 435 and 436:
applicants these could definitely n
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person against who he intends issue
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dealings. Expedient is not this Rep
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espondent to discharge its function
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(i) an order of certiorari 8 and se
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Mr. Mwaikusa argued that the releva
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that the Government has set on itse
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AT DODOMACIVIL CASE NO. 23 OF 1993J
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for Tabora Region . By a letter dat
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of the Constitution or the law of t
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Another important consideration und
Page 457 and 458:
have been taken into account, wheth
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withstanding the existence of an ou
Page 461 and 462:
arbitrary decision. And it offends
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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
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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
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declaration except in a negative so
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itom 108(1) of the First schedule t
Page 479 and 480:
egards the commission’s report, t
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RULLINGSAMATTA, JK:This is an appli
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impugned decision. As expected, I w
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(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
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21. Simeon Manyaki v Executive Comm
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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 .
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proceed by way certiorari. He can f
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AT MWANZACORAM: OMAR, J.A. HNZAVAS,
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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
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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)
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(4) In such a case the tribunal, wh
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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
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ut the judges must observe the cons
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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
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(a) that up to the 5 th February, 1
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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
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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
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maters as the leakage of examinatio
Page 657 and 658:
Q. Can you tell us anything strange
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IN THE HIGH COURT OF TANZANIA\MAIN
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against a government minister or de
Page 663 and 664:
injunctive relief is sought? Althou
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appears to have done, to hold that
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the applicant leave to apply review
Page 669:
669
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By Evarist Baimu Nyaga Mawalla - Home

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