THE LAND DISPUTE SETTLEMENT IN TANZANIA MAINLAND AND ZANZIBAR: A COMPARATIVE ANALYSIS

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Sist J. Mramba Masumbuko R. Lamwai

Abstract

Land disputes settlement in Tanzania Mainland and Zanzibar has been there for decades. The mechanisms for settlement have varied from the informal to the more formal practices. Since land forms one common source of disputes, various efforts to address them have been forged. The efforts range from the community participatory forms to judicial-based forms which are more adversarial.   In the Mainland, the land dispute settlement regime is governed by various laws but the principal statute is the Land (Disputes Courts) Act, No. 2 of 2002. [Cap 416 R.E. 2002]. The Act provides for the framework of institutions that constitute land dispute machinery. While in some of the institutions the procedures are less formal accommodating non-lawyers, others are purely judicial adopting the traditional judicial procedures. In Zanzibar, the trend is not much different. The Land Tribunal Act of 1994 as amended provides for the framework of Land Tribunals and procedures thereto. Although the initial plan was to have less-formal institutions which would accommodate informal procedures the amendment to the Land Tribunal Act has made the procedural requirements more formal especially on legal representation and evidentiary matters.

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MRAMBA, Sist J.; LAMWAI, Masumbuko R.. THE LAND DISPUTE SETTLEMENT IN TANZANIA MAINLAND AND ZANZIBAR: A COMPARATIVE ANALYSIS. THE LAW SCHOOL OF TANZANIA, [S.l.], v. 2, n. 1, june 2018. Available at: <http://journal.lst.ac.tz/index.php/lst/article/view/15>. Date accessed: 12 dec. 2018.
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References

1 LL.B (Hons), (UDSM), LL.M (Kwazulu Natal), Ph.D (Law), (UDSM), Senior Lecturer, The Law School of Tanzania,
Advocate of the High Court of the United Republic of Tanzania.
2 LL.B (Hons), LL.M (UDSM), Ph.D (Law), (London), Senior Lecturer Tumaini University, Dar es Salaam College,
Advocate of the High Courts of Tanzania Mainland and Zanzibar.
3 Massay, G. E., Adjudication of Land Cases in Tanzania: A Bird Eye Overview of the District Land and Housing
Tribunal paper prepared for Land Rights Research and Resources Institute –HAKIARDHI in July 2013 notes that
the District land and Housing Tribunal is overburdened by increment of an average of 2000 pending cases every
year. p 1.

4 Sackey, G., Investigating Justice Systems in Land Conflicts Resolution: A Case Study of Kinondoni Municipality, Tanzania.
M.Sc., Dissertation in GEO-Information Science and Earth Observation, University of Twente Enschede, The
Netherlands, March 2010. p.1&2.
5 FAO, Land Tenure Studies 3: Land tenure and rural development 2002. p 7.
6 Tenga W.R., & Mramba S. J., Theoretical Foundations of Land Law in Tanzania, 2014. Law Africa. Nairobi. p 95.
7 URT, Presidential Commission of Inquiry into Land Matters, 1994. pp. 197-202.

8 URT, National Land Policy (1995) p. 21.
9 Ibid.
10 Section 167 of the Land Act 1999, Cap. 113.
11 See section 62 of the Village Land Act.
12 Art. 107A (1) of the URT Constitution 1977( as amended).
13 Ibid, Art. 107A (2).
14 Ibid, Art. 107B.
15 Section 4(1)(m) & (l) Land Act; see Article 107 A (2) of the URT Constitution 1977.
16 Section 4(1) (i) Land Act.
17 Ibid, section 4(1) (m).
18 Ibid, section 4(1) (h)., see also Tenga W.R., & Mramba S. J., Theoretical Foundations of Land Law in Tanzania. Law
Africa. Nairobi. 2014. pp. 87, 92, 94 and 95.
19 Section 2 of the Land (Disputes Courts) Act, No.2 of 2002.

20 Section 19 (1) of the Local Government (Urban Authorities Act) Cap. 288 provides for the establishment of village
council for every village in the urban area and section; section 25 of the Local Government Authorities (District)
Authorities Act, Cap. 287 provides for village council for every village as per the Act.

21 Section 60 Village Land Act.

22 Village land includes (a) Land within the boundaries of village registered in accordance with the provision of
section 22 of the Local Government (District Authorities) Act 1982,
(b) Land designated as village land under the land tenure (Village Settlement) Act 1965,
(c) Land, the boundaries of which have been demarcated as village land under any law or administrative procedure
whether approved or not, (d) Land, the boundaries of which have been agreed upon between the village council
claiming jurisdiction over that land and :- The VC of a Contiguous Village, the Land Commissioner in case the
contiguous land is general land , official/public organisation in case reserved area, local authority in case the
surrounding land has been declared to be urban land or peri-urban land, A person/body where the surrounding
land is occupied by a person. (e) Land other than reserved land which the villagers have been during the 12
years preceding the enactment of the Act, regularly occupied and used such land as village land. It includes
land lying fallow at any time for 12years/land used for de-pasturing stock belonging to villagers/persons using
the land with agreement of the villagers or according to customary law/land customarily used for passage or
de-pasturing cattle.

23 Section 60(2) Village Land Act.
24 Ibid, section 61(4).
25 See Mwanza Restaurant & Catering Association v. Mwanza Municipal Director, (High Court Mwanza) Misc. Civ.
Cause No. 3/1987.
26 Section 62(1) and (2) of the Village Land Act.
27 Ibid, section 60 (2).
28 Ibid, section 60 (5).
29 See section 55 of the Local Government (District Authorities) Act, No. 7 of 1982.
30 Op. cit section 60 (7).
31 Ibid, section 60 (9).
32 Ibid, section 60 (10).
33 Ibid, section 61(3) & (4).
34 See the establishment and functions of the Commission sections 112 and 113 of the URT Constitution 1977 as
amended.
35 Sundet Guer, The Politics of land in Tanzania, Dec 2004, p. 131.
36 Section 7 of the Land Disputes Courts Act.
37 Ibid, Section 9.
38 Ibid, section 10.
39 Ibid, section 11.
40 Section 167 Land Act.
41 Op cit, section 13 of the Act.
42 Ibid, section 14.
43 Ibid, section 15.
44 Ibid section 13 (3).
45 Ibid section 13(4).

46 Salum Ally v. Abdallah Said Kichimba, Land Revision No. 37 of 2011 High Court of Tanzania at Dar es Salaam
District Registry (Unreported), Robert Tuninga v. Paulina Werema Misc. Land Appeal No. 98 of 2009 High Court
of Tanzania Land Division at Dar es Salaam (Unreported), Rehema Hamisi and 4 others v. Fauzia Hussein Awadhi,
Misc. Land Case Appeal No. 129 of 2009 (Unreported), Zubeda Rajabu v. Hussein Seseme & 2 others, Misc. Land
Appeal No. 67/2008 High Court of Tanzania Land Division at Dar es Salaam (Unreported), Amina Bakari Mtima
v. Hamis S. Mkwango & 15 Others, Misc Land case Appeal No. 3 of 2012 (Unreported).

47 Appeal No.8 of 2013, in the District Land and Housing Tribunal for Ilala.
48 For further reasoning one may wish to go through the decision of Lilian Mbwana v. Peter Singu Land Appeal No.34 in the District Land and Housing Tribunal for Ilala (Unreported).
49 Ibid, section 16.
50 Sackey G. Op cit. p..53.
51 URT, Law Reform Commission, Report on the Review of the Legal Framework on Land Dispute Settlement in Tanzania,
2014. p. 49.
52 Ibid, section 18.
53 Ibid, section 19.
54 URT, Law Reform Commission, Op cit p. 39.
55 Land Dispute Courts Act, section 22.
56 Ibid, section 22.
57 Massay, Op cit, p 3, gave an example of a villager from Tanganyika Masagati village in Kilombero District can
travel a distance of 270 km by bus for 5 to 7 hours to Ifakara where the nearest DLHT is located. And a villager
from Makelele village in Kilindi District can travel a distance of 280 km by bus for 6 to 8 hours to Korogwe where
the nearest DLHT is located.

58 Sections 23 and 24 of the Land Disputes Courts Act., see proposed amendment to section 23(1) of the Act that not
one Chairman but at least a Chairman…Bill for the Written Laws (Miscellaneous Amendments) (N0.4) Act, 2017.

59 Ibid, section 27. See the proposed amendment to section 28 (2) that, a person shall not be appointed to be the
Registrar unless he holds a degree in law from a recognized university and has experience in the field of law for
the period of not less than ten years. See Written Laws (Miscellaneous Amendments) (No. 4) Act, 2017.

60 Ibid, section 35(1).
61 Ibid, section 34(1).
62 Ibid, section 37.
63 Civil Appeal No. 121 of 2004, High Court of Tanzania at Dar es Salaam (Unreported).

64 Court of Appeal of Tanzania at Mtwara, Consolidated Civil Revisions No. 2,3,4,5, &6 of 2010, ruling made
on 11th October 2010 (Unreported); see a previous decision of the High Court, Olam Tanzania Limited Property
International v. Baraka Mkondola, High Court of Tanzania (Land Division) at Mtwara, Land Appeal No 14 of 2007
(Unreported) Judgment delivered on 25th September 2009 which had decided that the DLHT had no original
jurisdiction to adjudicate matters concerning land registered under the Land Registration Ordinance, Cap 334.

65 See Proposed Bill section 4 which amends section 2 of the Land (Disputes Courts) Act 2002.
66 Op cit, section 33.
67 See Section 8 of the Written Laws (Miscellaneous Amendments) (No. 4) Act, 2017 which amends section 33 of
the Act.

68 Ibid, section 33.
69 District Land and Housing Tribunal Kinondoni Land Appeal No 147 of 2013 District at Mwananyamala, see also
John Malombola v. Remmy Kway, Misc Land Appeal No. 91 of 2009 High Court Land Division (Unreported).

70 Ibid, section 34 (2).
71 See the Written Law Misc. Amendment No. 2 of 2010.

72 See Gastorn K. The Dynamics of Change and Continuity in Land Dispute Mechanisms in Mainland Tanzania:
The Jurisdictional Debate p. 575, Regulation 22 Land Disputes Courts (The District Land and Housing Tribunal)
Regulations, 2002 (GN 174/2003). Ramada Investments Limited v. Plastech Company Limited, Land Revision No. 5 of
2005, High Court of Tanzania (Land Division) at Dar es Salaam (Unreported).

73 G.N. No. 96 of 2005.
74 Commercial Case No. 118 o 2011 (Unreported).
75 See also the case of Petro Nyasa, Julius Nsabi and Pasi Seni v. Simon Domela, the District Natural Resources Officer
Urambo District, the District Commissioner Urambo District, and the Hon. Attorney General, decided on 9th July, 2009.
76 See further Gastorn supra 580-582.
77 See amendment to section 37(1) vide Written Laws (Miscellaneous Amendments) (No. 4) Act, 2017 section 9.
78 See section 40 of the Magistrates’ Courts Act No 2/1984.
79 Ibid, section 37.
80 Ibid, section 39.
81 Land Case No. 210 of 2004 (Unreported).
82 Commercial Case No. 121 of 2002, High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).

83 Under Rule 2 of the High Court Registries Rules, 1984 as amended by the High Court Registries, (Amendment)
Rules, 1999 (GN 141/1999) a commercial case is defined as any matter considered of commercial significance.

84 See Rule 2 of the High Court Registries Rules, 1984 as amended by the High Court Registries (Amendment) Rules,
1999 (GN 141/1999)

85 Commercial Case No. 27 of 2002, High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).
86 Land Case No. 7 of 2003, High Court of Tanzania (Land Division) at Dar es Salaam (Unreported).
87 See Art. 117(3) of the URT Constitution (1977) (As amended).
88 Civil Appeal No. 19 of 2014, Court of Appeal of Tanzania at Mwanza (Unreported).
89 Civil Appeal No.96 of 2013 (Unreported).
90 [Cap. 216 R.E. 2002].
91 On the same point also see the case of Morris Hamza Aziz v. Angelina Somon Mhavile and Another Civil Appeal No.
73 of 2012.CAT (Unreported).
92 Civil Appeal No.70 of 2011(Unreported).
93 See Tenga & Mramba, Conveyancing and Disposition Law and Procedure. (Law Africa, forthcoming)
94 See Gastorn K., supra p. 577.
95 See section 5 (1) (c) of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2002].
96 Cap. 216, R.E 2002.
97 G.N. No. 174 of 2003.
99 Section 4(1) of the Land Tribunal Act.
100 Ibid, section 3(2).
101 Ibid.
102 Civil Appeal No. 40 of 2002.
103 Section 14 of the Land Tribunal Act.
104 Section 15 of the Act.
105 Section 20 for instance emphasizes on use of plain language in pleadings.
106 Section 16 of the Act as amended.
107 Section 18(1) of the Land Tribunal Act.
108 Ibid.
109 Section 18 of Land Tribunals Act as amended.
110 Order 3, Rule 2 (a) & (b) of the Civil Procedure Decree.
111 Section 36(1) of the Land Tribunal Act.
112 Ibid, section 36(2) & (3).
113 Ibid, section 36(4).
114 Section 39 of the Land Tribunal Act.
115 Section 39(1) of the Act as amended.
116 Ibid, section 39(2).
117 Ibid.
118 Ibid, section 39(3).
119 Ibid, section 39(4).
120 Ibid, section 39(5).
121 Ibid, section 39(5 (a) & (b).
122 Ibid, section 40(1).
123 Ibid, section 40(2).
124 Ibid, section 40(3).
125 Ibid, see section 41 (1).
126 Ibid, section 41(2).
127 See section 4(1) of the Land Tribunal Act and Section 4(1) as amended.
128 Ibid, section 4(2) of the Land Tribunal as amended.
129 Ibid, section 4(3).
130 Ibid, section 5.
131 Section 5(4) of the Land Tribunal Act.
132 Section 6(1) of Land Tribunal as amended.
133 See section 6(2) of the Land Tribunal.
134 Section 7 of the Land Tribunal Act as amended.
135 Section 8(1) of the Land Tribunal Act.
136 See further section 19 for experts to provide technical evidence.
137 Section 160 of the Registered Land Act.
138 Ibid, section 161.

139 Under section 30 of the Registered Land Act… unless the contrary is expressed in the register, all registered
land shall be subject to the following overriding interests as may for the time being subsist and affect the same
without there being noted on the register: (a) rights or way, rights of water and profits subsisting at the time
of first registration under the Act (b) natural rights of light, air, water and support, (c) rights of compulsory
acquisition, resumption, entry, search and user conferred by any other law, (d) leases or agreements for lease for
a term not exceeding two years, periodic tenancies and indeterminate tenancies within the meaning of section
46 of the Act, (e) charges for unpaid taxes, rates or other moneys which without reference to registration under
the Act are expressly declared by any law to be a charge on land, (f), rights acquired on or in process of being
acquired by virtue of any law relating to limitation of action by prescription, (g) the rights of person in actual
occupation of land or in receipt of rents or profits therefrom save where enquiry is made of such person and
rights are not disclosed, (h) electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts,
canals, and dams erected, constructed or laid by virtue of any power conferred by any law.
140 Peter C., Independence of the Judiciary in Tanzania: Many Rivers to Cross, paper presented at a seminar hosted
by Kituo cha Katiba February, 2008.
141 Craig P.P; Administrative Law. (2003). Sweet & Maxwell. London at 253.
142 Phillips O. H & Jackson P.; Constitutional and Administrative Law. (2001). Sweet & Maxwell, London at 686.
143 Ibid, at 687.