Land as a Human Right: A History of Land Law and Practice in Tanzania

Chapter Nine - Land Disputes, Litigation and the Role of Courts in Tanzania

Chapter Nine Land Disputes, Litigation and the Role of Courts in Tanzania Our democratic order requires an orderly and fair resolution of disputes by courts or other independent and impartial tribunals. This is fundamental to the stability of an orderly society. It is indeed vital to a society that, like ours, is founded on the rule of law. - Ngcobo, J.1148 1148 Barend Petrus Barkhuizen v Ronald Stuart Napier, Constitutional Court of South Africa, Case No. CCT 72 of 2005, paragraph 31. 324 LAND AS A HUMAN RIGHT General Overview on Land Disputes and the Role of Courts in Tanzania The term dispute can simply be defined to mean a disagreement on a point of law or fact or a conflict of legal view or interest. It was once stated by the International Court of Jutice that in order to establish the existence of a dispute, “it must be shown that the claim of one party is positively opposed by the other”.1149 In this context, the Court of Appeal of Tanzania defines “land dispute” to mean “complaints on ownership or occupation of land, which includes buildings and other structures permanently affixed to land”1150 . A land dispute may arise, for example, if X claims that he is the legal owner of a piece of land over Plot No. 000, Block B, along Ubo Street in Dar es Salaam and Y, who disputes X’s claim by saying that the land in question belongs to him instead. A cursory perusal of records, especially through the decided cases reveals that most land disputes arise in the context of various claims, the most common being: claims over or against the right to acquire land1151 ; claims based on the right of ownership of land (title) especially where there is double allocation1152 ; claims against the trespass of one person into the land of another1153 ; claims over the right to compensation in cases of unlawful and illegal evictions1154 ; claims based on non performance of contractual obligations by one part where there is a disposition1155 ; claims 1149 See South West Africa Case, (Preliminary Objection), Judgment, ICJ Reports, 1962, p. 328. 1150 See Mariam Ghahae v Fatuma Ghahae, Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 43 of 2009 (Unreported). 1151 See Shaffique A.S. Dhiyebi v Presidential Parastatal Sector Reform Commission, High Court of Tanzania (Land Division) at Dar es Salaam, Land Case No. 46 of 2004 (Unreported). 1152 See Simon Byanyuma v A.E Halday, High Court of Tanzania (Land Division) at Dar es Salaam, Land Case No. 27 of 2004. (Unreported), and; Mohamed F Dossaji v Frederick Lwezaula, High Court of Tanzania (Land Division) at Dar es Salaam, Land Case No. 25 of 2004, (Unreported). 1153 Patrick Kimilo v Sheweji Ulinda and Another, Court of Appeal of Tanzania at Dar es salaam, Civil Application No. 99 of 2001 (Unreported). 1154 See Mtumwa Shahame Baya Kondo & 111 Others v Principle Secretary, Ministry of Works and Another, High Court of Tanzania (Land Division) at Dar es Salaam, Land Case No. 31 of 2004, (Unreported). 1155 See Rashid Halfan v Pendael Singa and National Housing Tribunal, High Court of Tanzania (Land Division) at Dar es Salaam, Land Case No. 173 of 2004 (Unreported); Beno Chelele t/a General Intergrated Firm v National Housing Corporation and 2 Others, High Court of Tanzania (Land Division) at Dar es Salaam, Land Case No. 96 of 2004. (Unreported); Shaidu Juma v Seleman Mussa, High Court of Tanzania (Land Division) at Dar es Salaam, Land Case No. 18 of 2006, (Unreported), and Riziki Habibu v Fatuma Juma, High Court of Tanzania (Land Division) at Dar es Salaaam, Land Case No. 102 of 2004, (Unreported). CHAPTER NINE 325 based on the right to inheritance of the deceased person’s estate1156 , and claims over the right to matrimonial property.1157 Whenever a land dispute erupts, the hostile relationship is automatically born between the parties at dispute. In such a situation, and in order to avoid the fights and the consequences that might arise out of the hostile relationship, the law comes in rescue. Essentially, the law gives parties to a dispute the chance to settle their dispute by way of a suit. It is at this point, when the parties to a suit are in court, that we talk of litigation. In other words, there is a civil litigation or the litis contestatio, when there is a contested dispute...