Note from E-LAW U.S.: This opinion contains several spelling mistakes made in the original opinion from which we transcribed. Also, our original is illegible in two spots. The first omission is of one or two letters. The second is of about 10 words. These two spots are noted in the text in [brackets].
IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM
(CORAM: NYALALI, C.J., MAKAME, J.K., and KISANGA, J.A.) CIVIL APPEAL NO. 31 OF 1994 HON. ATTORNEY GENERAL ............... APPELLANT VERSUS
1. LOHAY AKNONAAY
2. JOSEPH LOHAY ...........................RESPONDENT
(Appeal from the Judgement of the High Court of Tanzania at Arusha) (Justice Munuo) dated 21st October, 1993 in
The High Court Miscellaneous Civil Cause No. 1 of 1993
JUDGEMENT OF THE COURT NYALALI, C.J.:
This case clearly demonstrates how an understanding of our Country's past is crucial to a better understanding of our present, and why it is important while understanding our past, to avoid living in that past. The respondents, namely, Lohay Akonaay and Joseph Lohay are father and son, living in the village of Kambi ya Simba, Mbulumbulu Ward, [unreadable name of district] ...bald District, in Arusha Region. In January 1987 they successfully instituted a suit in the Court of the Resident Magistrate for Arusha Region for recovery of a piece of land held under customary law. An eviction order was subsequently issued for eviction of the judgement debtors and the respondents were given possession of the piece of land in question. There is currently an appeal pending in the High Court at Arusha against the judgement of the trial court. This is Arusha High Court Civil Appeal No. 6 of 1991. While this appeal was pending, a new law, which came into force on the 28th December 1992, was enacted by the Parliament, declaring the extinction of customary rights in land, prohibiting the payment of compensation for such extinction, ousting the jurisdiction of the courts, terminating proceedings pending in the courts, and prohibiting the enforcement of any court decision or decree concerning matters in respect of which jurisdiction was ousted. The law also established, inter alia, a tribunal with exclusive jurisdiction to deal with the matters taken out of the jurisdiction of the courts. This new law is the Regulation of Land Tenure (Established Villages) Act, 1992, Act No. 22 of 1992, hereinafter called Act No. 22 of 1992.
Aggrieved by this new law, the respondents petitioned against the Attorney-General in the High Court, under articles 30 (3) and 26 (2) of the Constitution of the United Republic of Tanzania, for a declaration to the effect that the new law is unconstitutional and consequently null and void. The High Court, Munuo, J., granted the petition and ordered the new law struck off the statute book. The Attorney-General was aggrieved by the judgement and order of the High Court, hence he sought and obtained leave to appeal to this Court. Mr. Felix Mrema, the learned Deputy Attorney-General, assisted by Mr. Sasi Salula, State Attorney, appeared for the Attorney-General, whereas Messrs Lobulu and Sang'ka, learned advocates, appeared for the respondents.
From the proceedings in this court and the court below, it is apparent that there is no dispute between the parties that during the colonial days, the respondents acquired a piece of land under customary law. Between 1970 and 1977 there was a country-wide operation undertaken in the rural areas by the Government and the ruling party, to move and settle the majority of the scattered rural population into villages on the mainland of Tanzania. One such village was Kambi ya Simba village, where the residents reside. During this exercise, commonly referred to as Operation Vijiji, there was wide-spread re-allocation of land between the villagers concerned. Among those affected by the...