Microsoft Word - Casebook on Environmental law

THE REPUBLIC OF TANZANIA

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM

CIVIL APPEAL No. 31 OF 1994 ARISING FROM MISC. CAUSE NO. 1 OF 1993

HON. ATTORNEY GENERAL............... .................... APPELLANT
VERSUS

1. LOHAY AKNONAAY


2. JOSEPH LOHAY...............................................RESPONDENTS

(CORAM: F.L. NYALALI, C.J., L.M. MAKAME, J.A and R.H. KISANGA. J. A)

Constitutional Law: Whether basic human rights are retrospective.

The respondents instituted a suit in the court of the resident Magistrate for Arusha region for
recovery of a piece of land held under customary law and it was successful. An appeal was
instituted accordingly. While the appeal was still pending in the High court, a new law was
enacted by parliament declaring the extinction of customary rights in land; prohibiting the
enforcement of any court decision concerning matters in respect of which jurisdiction was ousted.
Aggrieved by this new law, the respondents petitioned against the attorney general in the High
Court for a declaration that the new law was unconstitutional and consequently null and void.
High court granted the petition and ordered the new law struck off the statute book. The attorney
general was aggrieved by the order and appealed.

HELD:

1. Sections which provide for the extinction of customary rights in land but prohibit the
   payment of compensation with the implicit exception of un exhausted improvements
   only are unconstitutional and therefore null and void.


2. The customary rights in land in the Arusha region were declared extinct before the
   provisions of the Constitution which embody the basic human rights became
   enforceable .This means that since the provisions ‘Basic Human Rights’ are not
   retrospective, when the Act was enacted by Parliament, there were no customary rights
   in any of the listed villages.


3. With regard to the Sections that prohibit access to the courts of tribunal, and
   enforcement of decisions thereof concerning land disputes falling within the new law
   (The Regulation of Land Tenure (Established Villages) Act, 1992 Act No. 22), we find
   the entire Section unconstitutional and therefore null and void as it encroaches upon
   the sphere Judicature and denies aggrieved parties a remedy before an impartial
   tribunal.


4. Section 6 is unconstitutional only to the extent that it purports to exclude access to the
   courts. Other provisions can be read without the proviso relating to the invalidated
   sections. We therefore reverse the decision of the court below.


5. Denial of a right of action before an impartial tribunal renders the law unconstitutional.

Appeal partly allowed and partly dismissed.