ST. AUGUSTINE UNIVERSITY OF TANZANIA SCHOOL OF LAW Effectiveness of the Ward Tribunal in solving Land Disputes in Tanzania: A case of Tarime District Ward Tribunals A dissertation in partial fulfillment of the requirement for the award of the degree of Master of Laws in Economic Law of St. Augustine University of Tanzania. MARWA PAXTON J. REGISTRATION NO: LLM 55911 2018
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ST. AUGUSTINE UNIVERSITY OF TANZANIA
SCHOOL OF LAW
Effectiveness of the Ward Tribunal in solving Land Disputes in Tanzania:
A case of Tarime District Ward Tribunals
A dissertation in partial fulfillment of the requirement for the award of the degree of
Master of Laws in Economic Law of St. Augustine University of Tanzania.
MARWA PAXTON J.
REGISTRATION NO: LLM 55911
2018
i
CERTIFICTION
The undersigned certifies that he has read and hereby recommends for acceptance by St.
Augustine University of Tanzania, a dissertation titled; “Effectiveness of Ward Tribunal in
Solving Land Disputes in Tanzania” in partial fulfillment of the requirements for the award of
the degree of Master of Laws (LL.M) in Economic Law of St. Augustine University of Tanzania.
Signature………………………
Dr. George Mwaisondola
(Supervisor)
Date …………/……………. 2018
ii
DECLARATION
I, Marwa Paxton J, declare that this dissertation is my own original work and that it has not
been presented and will not be presented to any other university for similar or any other degree
award.
Signature ……………………………………. Date …………………………………….
iii
COPYRIGHT
This dissertation is a copyright material protected under the Berne convention, the Copyright and
Neighboring Act 1999 and other International and National laws. It may not be reproduced by
any means, in full or in part, except for short extracts under fair use, for scholarly work only,
without the written permission of the Deputy Vice Chancellor for Academic Affairs of St.
Augustine University, on behalf of both the author and the university.
iv
ACKNOWLEDGMENT
This research was carried out in Tarime District Mara region by myself as part of my study and
in partial fulfillment of the requirements for the award of the degree of Master of laws of ST.
Augustine University of Tanzania, May I thank our almighty God for the entire guidance and
protection in keeping me alive throughout the journey. As such, this research is a result of
contributions and efforts harnessed from many people and institution, although it is not possible
to mention them all, but I would like to convey my sincere gratitude to them all.
Special thanks should go to Dr. George Mwaisondola, my supervisor for his great advice,
supervision and guidance, may God bless him. Furthermore I convey my special thanks to my
parents, late Mr. Marwa Mosoba and Mrs. Rhobi Marwa for their joint efforts to brought me in
this world, may their soul rest in eternal peace.
Also other thanks should go to my wife Mrs. Stella Paxton for her understanding and tolerance
during my absence as I was working on this research, without forgetting my uncle Mr. Joseph
Merengo, mum-in-law Mrs. Scholastica Chacha and my only brother Mr. Samwel Mogesi for
their material and moral support throughout my entire study. It will be injustice if I will not thank
my lectures of the school of law at St. Augustine University of Tanzania including Dr. George
Mwaisondola, Prof. Costa Mahalu, Dr. Lukumay, Prof. Luwam Dirar, Dr.Pereowei Subai and
Dr. Kilangi A. (but not in the order of importance) I greatly thanks you for your positive
contribution as you mould me into the legal profession through the skills, knowledge and values
that you taught me. Without leaving out Miss. Eliza who actually typed the work and bring it
into the way it looks.
v
DEDICATION
This dissertation is dedicated to my parents more especially my father the late Mzee Marwa
Mosoba who always during his life encourage me to be a lawyer. My dear Daddy may your soul
rest in peace. Amen.
vi
LIST OF CASES
AG V. Lohay Akonaay and Joseph.(1995) TLR 80.
Jerome Michael V. Joshua Okanda, Civil Appeal No. 19 /2014, Court of Appeal of Tanzania at
Mwanza, (Unreported).
John Malombola V. Remmy Kwaya, Misc. Land Appeal No. 91 of 2009, High Court of
Tanzania at Dar es Salaam (Land Division), (unreported).
Joseph Kitango V. Paulina, Misc. Land Case Appeal No.26 of 2008 High Court of Tanzania
(Land Division) at Iringa (unreported)
Juliana Kiyeyeu V. Said Mpewa, Misc. Land Case Appeal No. 31of 2012, High Court of
Tanzania (Land Division) at Iringa (unreported).
NahodhaMpaka V. Agatha Zombe, Land Appeal No. 1/2005, High Court of Tanzania (Land
Division) at Songea, (unreported).
Shaffique A. S Dhiyebi v Presidential Parastatal Sector Reform Commission, Land Case No.
46/2004 High Court of Tanzania ( Land Division) at D res Salaam (unreported)
Zaidi Baraka V. Engen Petroleum (1) Ltd, Land Case No. 135 of 2004 High Court of Tanzania
(Land Division) at Dar es Salaam (unreported).
vii
LIST OF STATUTES
The Constitution of the United Republic of Tanzania, 1977 Cap 2 R.E 2002
The Government leaseholds (Conversion to Right of Occupancy) Act No. 44 of 1969
The Interpretation of Laws Act 1996 Cap 1 R.E 2002.
The Land Act, No. 4 of 1999 Cap 113 R.E 2002 R.E 2002
The Land Disputes Courts Act No 2 of 2002 R.E 2002
The Land Ordinance No. 3 of 1923 formerly Cap 113
The Local Government (District Authority) Act No.7 of 1982 Cap 287 R.E 2002
The Local Government (Urban Authority) Act No. 8 of 1982 Cap 288 R.E 2002
The Tanganyika Order in Council, 1920
The Village Land Act, No. 5 of 1999 Cap 114 R.E 2002
The Ward Tribunal Act No. 7 of 1985 Cap 206 R.E 2002
viii
LIST OF ABBREVIATIONS
AG : Attorney General
Cap : Chapter (of Tanzania laws)
CAT : Court of Appeal of Tanzania
D.O : Divisional Officer
DC : District Commissioner
DCM : District Court Magistrate
DED : District Executive Director
DLHT : District Land ad Housing Tribunal
EACA : East Africa court of Appeal
G.N : Government Notice
MM : Millimeter
PC : Primary Court
Prof : Professor
R.E : Revised Edition (of Tanzania Laws)
SULGO : Support for Local Government processes
S/O : Son of
TLR : Tanzania Law Reports
V : Versus
VEO : Village executive Officer
WEO : Ward Executive Officer
WT : Ward Tribunal
WWI : First World War
ix
TABLE OF CONTENTS
CERTIFICTION .............................................................................................................................. i
DECLARATION ............................................................................................................................ ii
COPYRIGHT ................................................................................................................................. iii
ACKNOWLEDGMENT ............................................................................................................... iv
DEDICATION ................................................................................................................................ v
LIST OF CASES ........................................................................................................................... vi
LIST OF STATUTES ................................................................................................................... vii
LIST OF ABBREVIATIONS ...................................................................................................... viii
ABSTRACT ................................................................................................................................. xiv
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Introduction ............................................................................................................................... 1
1.2 Background to the Study ........................................................................................................... 2
1.3 Statement of the Problem .......................................................................................................... 6
1.4 Objectives of the Study ............................................................................................................. 7
1.4.1 General Objectives ........................................................................................................... 7
1.4.2Specific Objectives ........................................................................................................... 7
1.5 Hypothesis................................................................................................................................. 7
1.6 Scope of the Study .................................................................................................................... 8
1.7 Significance of the study ........................................................................................................... 8
1.8 Research Methodology ........................................................................................................... 8
1.8.1 Design of the study .......................................................................................................... 8
x
1.8.2 Study Area ....................................................................................................................... 8
1.8.3 Data Collection Methods ................................................................................................. 9
1.8.4 Sampling Design .............................................................................................................. 9
1.8.5 Data Analysis ................................................................................................................. 10
1.9 Literature Review.................................................................................................................... 10
1.10 Conclusion ............................................................................................................................ 18
CHAPTER TWO
THE LAND DISPUTES SETTLEMENT MACHINERY IN TANZANIA
2.1 Introduction ............................................................................................................................. 19
2.2 Land Dispute Settlement During Pre – Colonial Era .............................................................. 20
2.2.1 Arbitration ...................................................................................................................... 21
2.2.2 Reconciliation ................................................................................................................ 21
2.2.3 Mediation ...................................................................................................................... 21
2.3 Land Disputes Settlement During Colonial Era ...................................................................... 22
2.2.3.1 German Rule of Tanganyika ....................................................................................... 22
2.3.2 British Rule of Tanganyika ............................................................................................ 23
2.4 After Independence ................................................................................................................. 24
2.5 Introduction of the Land Courts .............................................................................................. 26
2.5.1 Meaning of a Tribunal ................................................................................................... 27
2.5.2 The Village Land Council .............................................................................................. 29
2.5.3 The Ward Tribunal ......................................................................................................... 33
2.5.4 The District Land and Housing Tribunal. ...................................................................... 34
2.5.5 The High Court of Tanzania .......................................................................................... 37
2.5.6 The Court of Appeal of Tanzania .................................................................................. 40
2.6 Conclusion ............................................................................................................................. 42
xi
CHAPTER THREE
THE LAW REGULATING THE WARD TRIBUNALS
3.1 Introduction ............................................................................................................................. 44
3.2 Establishment of the Ward Tribunal ....................................................................................... 44
3.2.1 Composition of the Ward Tribunals .............................................................................. 45
3.2.2 Qualification of Members of Ward Tribunal ................................................................. 46
3.2.3. Tenure of Office of Members of the Ward Tribunal. ................................................... 47
3.2.4 Jurisdiction of the Ward Tribunal .................................................................................. 48
3.2.3.1 General Jurisdiction of the Ward Tribunal ................................................................. 48
3.2.3.2 Jurisdiction Ward Tribunal on Particular Matters ...................................................... 49
3.2.3.3 Pecuniary Jurisdiction of Ward Tribunal .................................................................... 50
3.2.4 Procedures in the Ward Tribunal ................................................................................... 50
3.2.4.1 Orders Imposed by the Ward Tribunal ....................................................................... 51
3.2.5 Appeal from Ward Tribunals ......................................................................................... 52
3.3 The Ward Tribunal as Specialized Land Court ....................................................................... 52
3.3.1 Composition of Ward Tribunal as Specialized Court .................................................... 53
3.3.2 Qualification and Tenure of Members of the Ward Tribunal ........................................ 55
3.3.3 Jurisdiction of Ward Tribunal as specialized Land Court ............................................. 55
3.3.4 Reference of Dispute in Ward Tribunal as Specialized Court ....................................... 56
3.3.5 Order of the Ward Tribunal as Specialized Court ......................................................... 57
3.3.6 Appearance of Advocates and Appeals from the Ward Tribunal Sitting as Land Court.
............................................................................................................................................... 57
3.4 The Role of District Council and Urban Authorities to Ward Tribunal ................................. 58
xii
3.5 Conclusion .............................................................................................................................. 59
CHAPTER FOUR
DISCUSSION OF FINDINGS ON THE EFFECTIVENESS OF THE WARD TRIBUNAL
4.1 Introduction ............................................................................................................................. 60
4.1 Presentation and Analysis of Findings .................................................................................... 60
4.1.1 Effectiveness of Ward Tribunal in Solving Land Disputes ........................................... 60
4.2 Execution of the Decree of the Ward Tribunal ....................................................................... 63
4.3 The Structure and Composition of Ward Tribunal ................................................................. 66
4.4 Independence of Ward Tribunal as Land Courts .................................................................... 69
4.5 Nature of Land Disputes Handle by Ward Tribunals ............................................................. 71
4.5.1 Ownership of Land ........................................................................................................ 71
4.5.2 Trespass.......................................................................................................................... 72
4.5.3 Encroachment ................................................................................................................ 72
4.5.4 Boundary ........................................................................................................................ 73
4.6 Cause of Land Disputes in Tarime Ward Tribunal ................................................................. 73
4.6.1 Population increase ........................................................................................................ 74
4.6.2 Increase in Land values .................................................................................................. 74
4.6.3 Unclear boundaries ........................................................................................................ 74
4.6.4 Delay and low compensation payment .......................................................................... 75
4.7 Conclusion .............................................................................................................................. 75
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.0 Introduction ............................................................................................................................. 76
5.1 Conclusion .............................................................................................................................. 76
xiii
5.2 Recommendations ................................................................................................................... 78
5.2.1 Payment of Salaries to Members of the Ward Tribunal. ............................................... 78
5.2.2 Allocation of Fund in the Government Budget.............................................................. 78
5.2.3 Continuous Training, Seminar and Supervision ............................................................ 78
5.2.4Amendments of the Law Regulating Ward Tribunals .................................................... 79
5.2.5 All Land Court to Report to the Judiciary ..................................................................... 79
BIBLIOGRAPHY ......................................................................................................................... 80
APPENDIX I ................................................................................................................................ 83
APPENDIX II ............................................................................................................................... 84
APPENDEX III ............................................................................................................................. 85
QUESTIONAIRE TO MEMBERS OF WARD TRIBUNAL WITHIN TARIME DISTRICT ... 85
APPENDEX IV ........................................................................................................................... 87
QUESTIONNAIRE TO CHAIRMAN OF DLHT.................................................................... 87
APPENDEX V .............................................................................................................................. 89
QUESTIONNAIRE TO ORDINARY CITIZENS STAKEHOLDERS OF WARD TRIBUNALS
WITHIN TARIME DISTRICT .................................................................................................... 89
APPENDEX VI ............................................................................................................................ 90
INTERVIEW GUIDE ................................................................................................................... 90
xiv
ABSTRACT
This dissertation aim to examine the effectiveness of the Ward Tribunals in solving land
disputes. Ward Tribunals were first established in 1985 by the Ward Tribunal Act No. 7 of 1985
Cap 206, with the aim to settle disputes in the areas where they were situated in order to secure
peace and harmony. In 2002, after the enactment of the Land Disputes Courts Act, 2002 Cap
216, the Ward Tribunals apart from their former ordinary function became land court in
Tanzania. The establishment of Ward Tribunal was perceived as a solution to the problem of
backlog of cases in ordinary courts.
Being the second land court in the hierarch after the Village Land Council, the Ward Tribunals
are now responsible in dealing with adjudicating upon land matters within the area they are
established. It is now almost 15 years since these Ward Tribunals have been empowered to deal
with land disputes, but still numbers of land disputes have not come down. The study reveals that
land disputes in the ward tribunals are not effectively handled as expected due to legal and
logistical shortcomings.
To recommend for Ward Tribunals to be effective, the members of the tribunal shall be person
with legal knowledge and the government shall allocate fund for running this important body, the
Local Government Authority should impose supervision over the Ward Tribunals, members
should be continuously trained through seminars and workshop so as to equip them with
knowledge, the law regulating WT shall be amendment to suit with the current situation and the
WT and the DLHT be placed under the judiciary for effective supervision and monitoring.
1
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Introduction
The terms dispute can simply be defined to mean a disagreement on a point of law or fact or a
conflict of legal view or interest1. Hence a land dispute is a complaint on ownership or
occupation of land. Land dispute may arise where someone claims that he or she is the legal
owner of a piece of land over a particular plot and another person disputes the same claims by
saying that the land in question belongs to him instead. Land conflict is a social fact in which at
least two parties are involved, the roots of which are different interests over the property rights
on land, the right to use land, to manage land, to exclude others from the land, to transfer it and
to have the right to compensation2
The concept of land disputes worldwide is not new. It is linked with a conflict theory propagated
by Karl Max, a German scholar and a revolution list, who among other things, came with an
assumption that economic organization, especially the ownership of property, determines the
organization of the rest of the society3. Karl Max was of the view that struggle for ownership of
the scarce resources through class structure inherent in the economic organization is likely to
create revolutionary class conflicts. It is from the above assumptions that through bipolar of the
exploited class awareness of their true interest is gained thus forming an organization to overturn
the dominant property holding class. This implies that, the basis of conflicts theory is all about
distribution of the scarce resources including property ownership and power4.
1Abdon Rwegasira, Land as a Human Right, at page 324.
2 Wehrmann. B. (2005), Urban and Peri-Urban Land conflicts in Developing Countries, Case Study of Accra and
Phnom Penh. Research Reports on Urban and Regional Geography, Marburg, University Dissertation, Berlin. 3 Turner, H.J, (2011), The structure of sociological Theory, 1
st Ed. Rawat Publication, New Delhi, pg 134
4Ibid
2
In the light of Tanzania jurisprudence, the term property includes land5. This position was also
observed in Tanzania, in the case of AG v Lohay Akonaay and Joseph Lohaay6. Where such
conflict arises in any community, there must be legally binding instruments to resolve the said
disputes by declaring the rights of each party to the property.
1.2 Background to the Study
Land is the most important resource in the world. No wonder the Constitution of United
Republic of Tanzania 1977under Article 24 (1) recognizes that every person has the rights to
own property7. Land is a property and therefore enjoys protection under the said Article of the
Constitution whether such right in land is granted or customary tenure.
With the 945,302 square kilometers of land, Tanzania is the 31st largest country in the world and
the 12th
largest in Africa. As of 2018 the population in Tanzania stood of 59.09 million, up from
the 2014 estimates of 50.8 million, Tanzania therefore ranks number 27th
in the world on the
basis of population8.
The last official population census in Tanzania was conducted in 2012 and showed there were
44,928,923 people9 living in the country of which total 1.3 million people resided on the island
of Zanzibar10
. This equated to a population density of 47.5 people per square kilometer. Tanzania
has a very uneven population distribution, in the arid regions of Tanzania population density is as
5 See S.4(3) of the Land Act, Tenga, W.R and Mramba, S.J., (2014. Theoretical Foundation of Land Law in
Tanzania, 1st Ed. Law Africa Publishing (T) Ltd Dar – es – salaam, Pg 22. See also Article 24(1) of the Constitution
of the United Republic of Tanzania, 1977. 6. (1995) TRL 80
7Article 24(1) of the Constitution of the United Republic of Tanzania, 1977, Cap2
8 See. http.www.worldpopulationreview.com accessed in may 2018.
9 See – population census 2012.
10Before April 1964 Zanzibar was an Independent country, On 26
th day of April, 1964, Tanganyika and Zanzibar
Unite and form the United Republic of Tanzania, Hence, now Zanzibar is a semi autonomous region of Tanzania
mainland. It is composed of the Zanzibar Archipelago in the Indian ocean, 25-35 Km off the coast of the mainland
and consists of small islands and two large ones which are Unguja island and Pemba island.
3
low as 1 person per square kilometers, while about 53 people per square kilometer in the wet –
rich mainland highlands around and up to 134 people per square kilometer in the capital city of
Zanzibar.
About 81% of the population in Tanzania lives in rural areas depending on land for their daily
subsistence11
, agriculture being the main stream of the country economy. The economy depends
on agriculture, which accounts for more than one quarter of the country GDP and provides 85%
of exports, and employs about 65% of the work force12
.
Pastoralism also is a common phenomenon in Tanzania, where pastoralists require a big expanse
of land to provide animal pastures13
. This is because their pattern of land utilization involves
cyclical seasonal movements with herds of livestock looking for pastures. The different modes of
land utilization between the pastoralist and the agricultural communities sometimes results into
land conflict.14
In Tanzania land is important property which is needed for people‟s sustainability. Being the
primary resources, land affects other sectors which are of paramount importance to the existence
of the nation. Hence forth activities like farming, livestock keeping and industrial activities are
carried out on land and as a result it has become an area of disputes due to the fact that the
human population increase while land remain constant.
11
Mwaisondola George,( 2007) Phd thesis, The Modern Law of Mortgages in Tanzania. University of Birmingham
at pg 1 12
See http.www.indexmondi.com accessed in May 2018 13
Ibid at footnote 3 14
Ibid
4
Land disputes is a result of claims over land and against the right to acquire land, claims based
on the right of ownership of land and claims over and against trespass of one person into the land
of another, claims over the right of compensation, claims based on the right of inheritance of
deceased person estate and the right to matrimonial property15
. As disputes has increased
tremendously, the government of the United Republic of Tanzania took steps to cater for the said
problem whereby it formulated the Presidential Commission of Inquiry into Land Matter in 1992
commonly known as the Shivji Commission that lead to formulation of National Land Policy of
1995. The Shivji Commission and the National Land Policy of 1995 lead to the enactment of
new land laws, that is, the Land Act 199916
and the Village Land Act 199917
. The two Acts calls
for the establishment of special institutions responsible for settlement of land dispute which
are,18
the Village Land Council, the Ward Tribunal, the District Land and Housing Tribunal, the
High Court of Tanzania and the Court of Appeal of Tanzania19
. In 2002, the Land Disputes
Courts Act20
was enacted as the way to implement the underlying principles under the Land Act
and Village Land Act to ensure the establishment of an independent, expeditious, and just system
for adjudication of land disputes which need to be done in strict adherence of the law regulating
land matters. That is the position of the law and it was properly stated by Kileo J. in the case of
Shaffique A. S Dhiyebiv Presidential Parastatal Sector Reform Commission21
. It is from the
15
Abdon Rwegasira (2012), Land as a Human Right, Dar – es – salaam: Mkuki naNyota, page 324 16
Cap 113 17
Cap 114 18
section 167 (1) of cap 113 and section 62 (4) of cap 114. 19
Ibid 20
Cap 216 R. E 2002. 21
High Court of Tanzania at Dar es salaam, Land Case No 46/2004 (unreported), at page 13Kileo J. held that “I
most emphasize her that whoever is given authority to deal with land he must exercise extreme care and diligence
considering it‟s sensitivity and the important role it plays in development of the citizen strict adherence to provision
of law is vital not only is order to avoid problems that occurred in land administration in the past, which resulted in
reform of our land law, but also to do away with loopholes that may give room to corruption, which is evil that we
most employ every weapon at our disposal to fight.
5
above observation one can hold that land dispute settlement institutions in Tanzania needs to act
and adhere to the provisions of the law regulating land matters.
Since the prime propose of Land Court Dispute Act22
is to ensure that the Land case are
adjudicated justly and expeditiously by independent and self-sufficient institutions, Ward
Tribunal being one of the land courts has been given mandate in dealing with land matters at the
ward level through mediation and litigation in which the Ward Tribunal decision is binding upon
the parties. Due to their sensitiveness, Ward Tribunals are of great important in solving land
disputes at the ward level.
Tarime District being among one of the six districts in Mara Region has 34 Ward Tribunals,
where each ward have one Ward Tribunal. At the village level, land cases are lodged at the
Village Land Council, where the Village Land Council have power to make reconciliation and
mediation on the issue or dispute brought before it, but the decision of the Village Land Council
is not binding upon the parties. Appeals from the Village Land Council go to the Ward
Tribunal23
as appeal or fresh application, sometimes that make disputant parties not to file their
case in Village Land Council but in Ward Tribunal where pecuniary jurisdiction in land disputes
is limited to property valued at not more than Tanzania shillings three millions. A quorum in all
matters of mediation is constituted by three members, one of whom must at least be a woman,24
and the decision reached by a majority decision and in case of equality of votes, the chairman has
a casting vote.25
Appeal from Ward Tribunal goes to District Land and Housing Tribunal and the
High Court of Tanzania receive and accept appeals from District Land and Housing Tribunal.
22
Cap 216 23
Section 9 Land Disputes Courts Act, Cap 216 24
Section 14(1) Land Disputes Courts Act, 2002 25
Section 14(3) Land Disputes Courts Act, 2002
6
The disputant who is not satisfied with the decision of the High Court may appeal to the Court of
Appeal of Tanzania in accordance with requirements of the Court of Appeal Rules26
.
All wards in Tarime have Ward Tribunal in each and every ward. Among the Ward Tribunals in
Tarime District are Pemba, Mbogi Gwitiryo, Sirari, Regicheli, Nyakonga, Susuni, Kemambo
Matongo,Itoryo, Mwema, Ganyange, Kwihancha, Muriba, Nyansincha, Nyamwaga, Komaswa,
Manga, kiore, Nyarero, Nyamisangura, Kenyamanyori, Bomani, Nkende, Nyandoto, Kitare and
Sabasaba a few to mention. All these Ward Tribunals have power to mediate, deal with
proceeding of civil nature related to the land cases, order recovery of possession of land specific
performance of any contract, make orders in the nature of injunction, award any amount claimed,
award compensation and order payment of any costs and expenses incurred by the applicant or
his witness as a payment order among others.
1.3 Statement of the Problem
After the enactment of the Land Act 1999, Village Land Act 1999 and the Land Disputes Courts
Act 200227
the land courts were established to settle land disputes. One of the courts was the
Ward Tribunal. From the nature of the Ward Tribunals, these were meant to be closer to potential
litigants as they are located in each and every ward in Tanzania. For that matter, the Ward
Tribunals were and are still responsible in solving land disputes arising at the ward level within
the area of its jurisdiction provided it does not exceed the value of three million shillings.
26
G.N. N. 368 of 2009.
27
Cap 113, 114, and 216 respectively.
7
However, despite the establishment of the Ward Tribunals, it seems these tribunals are inherent
infective ineffective in solving land disputes regardless of their proximity to the people. The
study assess the effectiveness of the Ward Tribunals in solving land disputes in Tanzania.
1.4 Objectives of the Study
The objectives of this study are two, which are;
1.4.1 General Objectives
The main objective of this study is to assess for effectiveness of Ward Tribunals in solving land
disputes.
1.4.2Specific Objectives
(i) To assess the reasons for the inefficiency of Ward Tribunal in solving land disputes.
(ii) To assess on whether the structure and the composition of the Ward Tribunal lead to
its incompetency in solving land disputes.
(iii)To assess on whether Ward Tribunals are independent as land court when dealing
with land matters.
(iv) To assess on the nature and causes of land disputes brought before Ward Tribunal
1.5 Hypothesis
This research was guided by two hypotheses.
(i) The Ward Tribunals are inherent ineffective in solving land disputes.
(ii) The structure and composition of Ward Tribunal makes it incompetent in handling land
disputes
8
1.6 Scope of the Study
This study was conducted in Tarime District, in which Tarime District Council Tarime Town
Council was the targeted area in this study whereby only 13 Ward Tribunals were selected from
among the 34 wards in Tarime District, the selected wards includes, Pemba, sirari, Regicheli,
Mbogi, Gwitiryo, Nyakonga, Nyamwaga, Nyamichale, Itiryo, Nyansincha, Mwema, Susuni, and
komaswa Ward Tribunal were looked upon during this study.
1.7 Significance of the study
This study is expected to serve as an empirical conclusion on the factual situation on
the effectiveness of Ward Tribunals in solving land disputes in Tanzania.
The study is also expected to inform and initiate public debate on these crucial
problems of land disputes and hence lead to influencing or contributing policy and
decision making in reviewing the law so as to enhance the Ward Tribunal be effective
in solving land disputes in Tanzania.
1.8 Research Methodology
1.8.1 Design of the study
The research used a survey study with the aim of bringing a deeper insight and better
understanding on the effectiveness of Ward Tribunal in solving land disputes.
1.8.2 Study Area
Tarime District is the case study area, Tarime District was selected for the study because it is one
of the area that have predominant land disputes. The researcher visited thirteen Ward Tribunals
9
in Tarime district namely Pemba, sirari, Regicheli, Mbogi, Gwitiryo, Nyakonga, Nyamwaga,
Nyamichale, Itiryo, Nyansincha, Mwema, Susuni, and komaswa.
The researcher opted for Tarime District as these ward tribunals within Tarime Districts also
deals with land matters as land courts, hence there is an availability of data and the area is
logistically accessible and affordable to him.
1.8.3 Data Collection Methods
In collecting data, the study employed different data collection tools. This include interviews
based on structured and unstructured questionnaires, use of secondary source data, personal
observation of 4 tribunal proceedings and field inspection.
Primary data was collected by way of interviews, with the aim of gathering information from
respondents, questionnaires formulated the within view of the research hypothesis and
observation by visiting Ward Tribunals, to observe how civil land matter were conducted.
Secondary data was collected through review of books, journals, reports and articles. The
researcher also collected secondary data from Saint Augustine University of Tanzania university
library, Mara Regional library and the High Court of Tanzania library at Mwanza.
1.8.4 Sampling Design
In order to bring about an intended impact the researcher applied purposive / deliberate technique
by purposely hand picking the following groups of respondents who includes 42 ordinary
citizens who were stakeholders in the Ward tribunals, 94 members of Ward Tribunals, 1
chairman of District Land and Housing Tribunal, 1 Land valuer, 4 advocates who practice land
law within Tarime District, 1 District Legal Officers, 1 Town Legal Officer, 1 clerk of DLHT, 49
disputant or claimants and 3 WEOs.
10
The researcher opted to use purposive / deliberate sampling techniques because it is not possible
to randomly hand pick respondents such as DLHT chairman, advocate land officer, and legal
officers, as they are knowledgeable person in the field of land law.
1.8.5 Data Analysis
The analysis of available data that were gathered from the field of study on the concept of
effectiveness of ward tribunals in solving land disputes, the researcher used qualitative method to
analyze the data after summarizing the research findings, the researcher used thematic data
analysis, whereby the researcher made notes, sorted out the notes and then sorted the data into
categories in line with the objectives and the hypotheses of the study.
1.9 Literature Review
The researcher reviewed both theoretical and empirical literature. It is generally accepted that
there are three main categories of governmental functions, that is legislative, executive and
judicial. These three functions are carried out by three main organs of a state, which are the
legislature, the executive and the judiciary.28
Traditional, the duty of determining disputes
between individual in the society is viewed as an exclusive domain of the ordinary courts of law.
Ward Tribunal were established in 1985 when the central government decided to revitalize local
government authorities, their primary function is to secure peace and harmony in their area by
mediating and endeavoring to obtain just and amicable settlement of disputes. However ward
tribunals, are staffed with professionally incompetent personally made up of laymen equipped
with inferior academic qualification, very scanty knowledge of law and hopelessly poor physical
28
SULGO (2010) Ward Tribunals. How to enhance the Rule of Law at local Level, GTZ pg 3
11
infrastructure and facilities. Since it is a fact that ward tribunals are run by laymen , it is an over
estimation to expect them to perform well the legal responsibilities imposed upon them by the
law.29
Thakker and Thakker30
The expression tribunal includes within its ambit, all adjudicating
bodies, provided they are constituted by the state and are invested with judicial functuion as
distinguished from administrative or executive functions, the author went further to add that
administrative tribunals are therefore, established to decide various quasi judicial issues in place
of ordinary courts of law. This is because today governmental functions have increased to such
an extent that it is no longer possible for the ordinary courts of law to deal with all social –
economic problems of our society.
Also in his work, Thakker and Thakker31
emphasize that, tribunals have certain characteristics
which often give them advantage over the court, experts knowledge of a particular subject, this is
in line with the work of Jaba Shadrack32
who stipulated that administrative tribunals have
required expertise specialty and experience in their field of operations, both authors works are
pertinent to this research as they help to identify a lacuna in the law establishing ward tribunals.
Section 5, subsection 1of the Ward Tribunal Act33
bars members of the ward tribunal to possess
any legal qualifications, in other words they lack the required expertise, speciality and
knowledge in the field of law, yet they perform the function of administering and solving land
29
The south law chambers (2010). Report on defining, preparing and delivering a programme for enhancing scope,
impact, effectiveness and efficiency of ward tribunals in administering Justice a draft report submitted to the Prime
Minister‟s Office Regional Administration and Local Government. Dar es salaam Tanzania pg. 10. 30
Thakker, M.C and Thakker C.K, (2004). Lectures on administrative Law, Lucknow. Eastern Book Company. At
pg 194 31
Op.cit 32
Jaba Shadrack (2011) Administrative Tribunals in Tanzania Department of Public Law, School of Law,
University of Dar es salaam 33
Cap 206
12
disputes. In light of these reviewed literature, this study intends to examine, whether ward
tribunal are effective in solving land disputes.
Makombe and Sikalumba,34
researched on Ward Tribunals in Sumbawanga Rural District and
all respondents underlined the need of members of ward tribunals to undergo formal training
relevant to their work. They complained that they had never gone through any such training and
that they only perform duties through experience. They all acknowledged that they needed kind
of training that would equip them with requisite skills for their work. This work help to identify a
gap in the law governing ward tribunal which this research intends to fill. The law does not have
any provision, requiring members of ward tribunals to undergo any training that would acquaint
them the knowledge and skills in law, which would enhance their ability to solve land dispute.
This study aims to reveal that the, lack of adequate training on the basic fundamental knowledge
in law is a deficiency which diminishes ward tribunal members ability to solve land disputes,
which causes injustice to person involves in land matters before Ward Tribunals.
SULGO35
The author states that, members of the Ward Tribunals are lay persons with little
formal education and no professional expertise the author further states that the basic
qualification for ward tribunal members is the ability to read and write. This is not sufficient the
author said. The writer goes further to say that, members of ward tribunal need knowledge in
mediation arbitration and in the ABC s of the law. This work also is of great importance to the
study as it helps to identify the gap in law governing ward tribunal which this study intends to fill
out.
34
Makonde I..M, Sikalumba AJ….(2005) the Role of Ward Tribunal in Enhancing the Administration of Justice in
Tanzania. The case of selected Ward Tribunals in Sumbawanga Urban and Rural Districts, Mzumbe University. Pg
1. 35
Sulgo (2010). Op. cit pg 5
13
Sangi36
also writes on the ignorance of the law by the members of the ward tribunal. He has
emphasized that when he visited Mbagala Ward Tribunal, he witnessed the members of the ward
tribunal being ignorant on land laws and procedures the author also touched on the composition
of the ward tribunal, the competence and age of the members, the general procedures of the ward
tribunals, the writer opine that, with the current trend of expanding economy, people buying and
selling, using land to secure loan as security in financial instruction, it is no longer meaningful to
have an institution to determine land disputes while constituted with members having no legal
knowledge, though the author focuses on ward tribunal, he has not deeply looks on members
incompetence to deal with land disputes. Hence the research intends to focus more on Ward
Tribunals members incompetence in solving land disputes.
W.R.Tenga37
in his manual state that, land as a basic resource and a factor of production has
become arena of endless disputes. This is more serious in African societies where land is not
only viewed as a factor of production but a symbol of wealth. Post independence government
had no express land tenure policy as such and much less a clear position on customary
tenure,38
Several development had led into the rethinking of land situation in Tanzania, the
change in land use and the increase in human population as a result have increased the demand
for land39
. Also growth in already large livestock which consequently has increased the demand
for grazing land (including that now under cultivation) as well as the movement of large herds of
36
Mabaraza ya ardhi na Ulimbukeni wa sheria, article in Raia Mwema, issue no 362 dated 16/07/2004. Accessed at
http//www.raiamwema.co.tz/mabarazayaardhi.naulimbukeni wa sheria 26/09/2018 37
TENGA R.W (2008), Manual on Land and Conveyance in Tanzania. 38
UNITED REPUBLIC OF TANZANIA , Report of the Presidential Commission of Inquiry into Land Matters, pg
19 39
I bid
14
livestock from traditional livestock keeping areas to new greener pastures such as Mbeya region
and Ruvuma region creating land use conflict in the receiving area.40
Abdon Rwegasira41
correctly analyze the composition and the function of Village Land Council
as one among the land court established by the Land Court Dispute Act, also he discuss on how
Village Land Council conduct matters brought before them, he observe that the duty of Village
Land Council is to assist the parties to settle the dispute amicably and therefore they cannot make
binding decisions.
Law Reform Commission of Tanzania42
in its review on the law relating to land dispute court
in Tanzania, recommends to be done just for the land courts to be more effective in solving land
cases by showing weakness of each courts both in laws and administration. Also the commission
shows why there are land disputes, in regard to Ward Tribunal the commission found out that
there are some people who support the presence of the VLC and Ward Tribunal as they solve
dispute amicably but also there some people who disgust the Village Land Council as it seems to
them as something unworthy, this indicate that the Village Land Council were ineffective that is
why some people want it to be remove. Also the commission recommends the government to
look about the weaknesses which lead the land court to fail. This report is useful to this study as
it help to grasp the general idea about Village Land Council and Ward Tribunal as it shows the
weakness and recommendation of what to be done in order for Village Land Council and Ward
Tribunal to be more efficient.
40
I bid 41
AbdonRwegasira, (2012), Land as a Human Right. Dar es Salaam; Mkuki naNyota 42
Law Reform Commission of Tanzania (2014), Review of legal framework on land dispute settlement, Dar
essalaam.
15
However, although the discussion is useful in some aspects regarding to Ward Tribunal but it fail
to analyze on how Ward Tribunal and other land courts have been effective to deal with land
dispute settlement it rely only on the weak spot of land court, hence this gap has to be filled by
this study.
Godfrey Eliseus Massay43
proposes that every village and ward in Tanzania is supposed to have
Village Land Council as well as Ward Tribunal competency to deal with land cases, he also
talked about the weakness of Village Land Councils and Ward Tribunal, that these courts are
often faced with challenges relating to lack of knowledge on their limitation and power, they are
also underfunded and not technically supported which makes it very hard for them to discharge
their functions according to the Land Dispute Court Act.44
Also he proposes to strengthen the
Village Land Councils. He also quote the statement made by Prof. Anna Tibaijuka, the
Minister responsible for land in parliamentary budget session of 2012/ 2013 in which she said “ I
call upon all District councils to strengthen Village Land Council and Ward Tribunal,”45
this
indicate that if the VLC and WT are strengthen land dispute in will be diminished.
Prof. Anna Kajumulo Tibaijuka46
, in her speech she propose that all district councils to
strengthen village Land Councils and Ward Tribunals47
in order to deal with land cases in
effective manner, Tibaijuka also hasten the village chairperson and ward chairperson to do their
43
Godfrey Eliseus Massay. (July 2013). Adjudication of Land cases in Tanzania: A Bird Eye overview of the District
Land and Housing Tribunal. Dar essalaam: Hakiardhi. 44
Act No2 f 2002. 45
Minister for Lands, Housing and Human Settlements Development – 2012/ 2014 Budget Speech at parliament
session on budget at Dodoma. 46
Minister for Lands, Housing and Human Settlements Development – 2013 / 2014 Budget speech, p 31 – 32. 47
Emphasis mine
16
work as required by law as there is many claims blaming them as inactive in respect to their
work, she also state the important of having land court and why they were formed.
Report of the Presidential Commission of Inquiry into Land Matters48
, the 1990‟s land reforms,
was initiated by the commission of inquiry into land matters in 1991. The commission was
commonly known as Shivji commissions due to the fact that Prof. Issa Shivji was the chairperson
of the commission. The report was a gear towards all land reforms took place in 1990‟s. In 1992
the findings of the report were submitted to the President covering all legal, administrative and
instructional dimensions on land. The report had good recommendations on establishment of
independent body apart from court of law from village level to national level, report provide that
“ We believe land matters are specialized matters and a fairly expeditious machinery for solving
disputes would enhance certainty and finality”49
also commission cautioned that “ the separation
of the machinery from the executive should be maintained and all levels including the village
level”50
, from this commission want land court to be independent from executive.
This report is usefully to this study because it helps to grasp the idea about the origin of the
establishment of land courts in Tanzania also, to know the early recommendations about the
VLC and WT.
48
Report of the Presidential Commission of Inquiry into Land Matter, Ministry of Land, Housing and Urban
Development, Government of Tanzania in cooperation with the Scandinavian Institute of Africa studies, Uppsala,
Sweden, Land Policy and Land Tenure Structure Vol, 1994 49
Ibid, p 198. 50
Ibid
17
Sigsbert Ngemera51
, correctly analyses on land adjudication process for land rights in Tanzania
as a remedy to village land disputes. Over age land has been a confluence where individuals,
groups, communities and nations strive for its acquisition, occupying and owning for sustainable
development of such groups. Tanzania is not unique from what takes place in the entire world as
regards land and the underlying disputes, where the existence of such disputes over land seems
inevitable for that matter. For him the term land dispute may mean any controversy emanating
from actions, proceedings on any matter governed by the Village Land Act and the Land Act
postulating the assertion of claim by one party and its denial by the other.
Kennedy Gaston52
viewed the drafter of the new land laws as envisaged creating modernized
laws and a system that would remove such jurisdictional overlapping. Yet given the history of
land tenure and its sensitivity as public land, he views that, still the jurisdictional questions have
remains unclear or unsettled even among the newly erected specialized land courts and the
normal law courts. At the same time land courts are managed by various Ministries with the
Ministry of Lands playing a key role. Land being public property, the state becomes the
paramount landlord with direct interest in all the aspects including dispute solving mechanisms.
Tenga W.R and S.J. Mramba53
, correctly analyze the land courts in Tanzania from Village
Land Councils, Ward Tribunals, District Housing and Land Tribunal, High Court and Court of
Appeal of Tanzania, in regard to VLC authors explain clear about composition and the function
of village land council as one among the land court establish by the Land Court Dispute Act, also
51
See Land Adjudication process for land Rights in main land Tanzania. Is it a remedy to village land Disputes;
IJRR VOL 03 December 2016. 52
The Dynamic of change and continuity in land Dispute mechanisms in main land Tanzania. The jurisdictional
Debate. 53
Tenga, W. R and S, J, Mramba, (2008) Manual on Land Law and conveyancing in Tanzania.
18
they discuss on how village land council conduct matters brought before them, authors observe
that the function of village land council is to mediate the dispute also in exercising this function
of mediation, authors said that Village Land council is required to exercise its functions in
accordance with Section 61 of The Village Land Act. This book is useful to this study as it help
to grasp the general idea the land courts in Tanzania.
The above authors works are useful in this research however, neither of the authors has covered
the area of effectiveness of ward tribunal in solving land imputes there is a locuna in the law
establishing ward tribunals which the researcher intends to fill by exploring the law governing
ward tribunal power to administer land matters as land courts in Tanzania.
1.10 Conclusion
In this chapter we have seen general introduction to the study which contained, the background
to the problem, the statement of the problem, objectives of the study and significance of the
study. The chapter also reviewed various literatures, it stated the hypotheses and showed the
research methodology, which included data collection methods whereby, both primary and data
was collected through review of books, journals, reports and articles, also the methodology
showed sampling techniques whereby the researcher applied purposive technique by deliberately
hand picking respondents that includes, DLHT chairman, Legal officer, Advocates, WEO and
Land officer who are knowledgeable person in the field of land law. Lastly in regards to the
methodology the researcher used qualitative method to analyses the data
19
CHAPTER TWO
THE LAND DISPUTES SETTLEMENT MACHINERY IN TANZANIA
2.1 Introduction
Land disputes arise due to various circumstances which have now been the determinant of the
mechanism to be employed in settling a particular dispute in land. Land is one of the properties
in Tanzania which has greater economic value and whenever a land dispute erupts, the hostile
relationship is automatically born between the parties at dispute. In order to avoid the fights and
the consequences that might arise out of the hostile relationship, the law comes to rescue54
. It is
from this point that the law gives the parties to a dispute the chance to settle their disputes by a
way of a suit.
One thing to note is that, until the adoption of Land Act 199955
, all ordinary existing courts of
competent jurisdiction which are the Ward Tribunal, the Primary Court, the District Court, the
Resident Magistrate Court, the High of Tanzania Court and the Court of Appeal of Tanzania56
had all the powers to determine land disputes in accordance with the law. Though all through
their course in dealing with the land disputes, the courts proved to be very inefficient in solving
and dealing with land disputes due to population pressure and the valuable economic element
that land at the time had. The Government of the United Republic of Tanzania, through the 1995
National Land Policy in its way of implementing the recommendation drawn by the famous
Shivji Commission, decided to create and establish distinct machinery for the purposes of
handling land disputes in Tanzania. Hence it is from this genesis where the new Land Act
54
Rwegasira A, (2012) Land as a Human right, History of land law practice in Tanzania. 55
Cap 113 R.E 2002 56
See United Republic of Tanzania (1994), Report of the Presidential Commission of Inquiry into Land Matters,
Vol.1, Land Policy and Land Tenure Structure, Uppsala, pg. 101-102.
20
1999under section 167 and the Village Land Act 1999 under section 62 introduce specialized
system of courts to deal with land matters in Tanzania. Both Acts came into force on 1st May,
200157
the Land Disputes Courts Act 200258
was also enacted in 2002 for the establishment of
land dispute machinery.
2.2 Land Dispute Settlement During Pre – Colonial Era
Before colonialism land in Tanganyika was communally owned and its uses and management
was based on customary arrangements. This traditional management implies that people were
having their own traditional ways or mode of dispute settlement wherever they occurred.
Each society had its own way of solving dispute. For instance there were societies in which the
chief exercised direct control over land disputes for instance in Kurya society the clan leaders
were responsible in handling any land disputes that arose over the clan land, and such disputes
were settled amicably. During this era, the administration of justice depended much on socio –
economic and political organization of the society. This comes up with two systems which are
centralized system and non – centralized system. The centralized system applied in those
societies lead by chiefs, where the chief had a role in land dispute settlements. For the non –
centralized system involved the entire community participate in the adjudicating and settling of
dispute in their society.
The pre – colonial era, in land dispute settlement is featured with the use of local customary rules
and the common mode of dispute settlement being mediation and reconciliation and throughout
all was done through oral means as writing was not necessary.
57
G.N 485 of 2001 and G.N 486 of 2001 respectively 58
Cap 216
21
2.2.1 Arbitration
In this mode of dispute settlement, parties to a dispute chose a third party who in one way or
another is not part to the land dispute at hand. This process involved in settling disputes without
necessarily making recourse to law or any other established rules and regulations and in practice
the process may take place in law courts ( a process called statutory arbitration) as an alternative
to litigation, or it may consist in the settlement of disputes in private59
The chosen third party lead the disputant in settling their dispute and reach in amicably
agreement. Under this parties to a dispute submit their issues in relation to the dispute and that
such third party (arbitrator) make a decision concerning the matter. Unlike the court, the
arbitration decision binds parties only where they have agreed to accept the decision of the
arbitrator.
2.2.2 Reconciliation
Under this modes parties themselves sit and discuss together issues in connection with the
dispute and at the end they reach in a mutual agreement and common understanding, hence the
method enhance and create social harmony in the community. The disputants could initiate the
proceedings before the traditional entities themselves.
2.2.3 Mediation
Mediation is referred to an action done through a third part who is acceptable by both disputants
to strive for compromise which would be acceptable by parties of the disputes. Under this,
disputants were unwilling to meet and discuss their differences or where sometimes parties
believed that their dispute cannot be settled through negotiations or where early negotiation
59
Yusufu. Q. Lawi, Justice Administration Outside the Ordinary Courts of Law in Mainland Tanzania: The case of
Ward Tribunals in Babati District. Pg 4
22
could not result into fruitful mark. Under this mode, the emphasize is on win – win results based
on interest based situation in which each disputant win little and lose little. In Kadume V
Soine60
it was decided that the land should be divided into equal parts one part for Kadume and
the other for Soine, both being parties in the land dispute.
2.3 Land Disputes Settlement during Colonial Era
During colonial period the administration of justice involved arbitral procedures based on court
litigation process. Tanganyika as then was, was under the German rule from 1884 to 1918 and
the British rule from 1919 to 1961.
2.2.3.1 German Rule of Tanganyika
During the German rule that is between 1884 and 1998 the country received its first land laws
from the German colonial Government in 1895 through the German Imperial Decree. The
Decree declared all land in Tanganyika as a crown land and vested it to the German empire.
During that period, a system of land tenure called the freeholds and leasehold systems were
introduced61
. In 1895, German comes up with German Empirical Code which declared that all
land whether occupied or not was treated as un – owned, crown and vested in the German empire
save for claims of ownership by private persons, chiefs or native communities which could be
proved. And a distinction was made between claim and right of occupancy. During the German
rule, the administration of land was based on racial consideration, where two system of
adjudication of land disputes for natives and non –natives was established.
60
GULIVER. P.H, Social control in an African society. Oxford University press. London. Butterworth. 61
Kennedy Gaston. The Dynamic of Changes and Continuity in Land Disputes Mechanisms in Mainland
Tanzania.Pg 572
23
2.3.2 British Rule of Tanganyika
After the WWI, 1919 the colony was handled to British as a mandate and later a trustee
territory62
. In 1923 through the Land Ordinance,63
the British declared all land as public land
under the absolute control of the government in trust for his majesty and introduce the right of
occupancy as another and only the land tenure.64
The right of occupancy system as introduced by British was another form of private ownership
associated with capitalist mode. The land being public land would be assumed that there would
be no disputes. But since natives had all the right to use and occupy land, such occupation and
uses remained conflictual. From this, a dual court structure was erected for natives (land under
customary tenure) and for non – natives. Since land was public, the government continued to
have a decisive role in all aspect of land management and administration, Hence the multiple
authorities in land administration and dispute settlement mechanisms sometimes with
overlapping jurisdictions continued.
During the British regime, land matters were dealt and governed by the Land Ordinance65
, the
Land (Law of Property and Conveyance) Ordinance66
, the Rent Restriction (Amendment)
Ordinance67
, the Land Regulations of 1948, the Land Survey Ordinance68
, the Land Registration
62
Ibid 63
See section 3(1) of Land Ordinance 1923, Formerly Cap 113 64
Section 4(1) of Land Ordinance 1923 65
Act No.7 of 1923 66
Cap 114 67
1954 68
No. 32 of 1957
24
Ordinance69
, the Native Land Tenure Rules70
, Crown Land Adjudication Rules71
and the
Consolidation Act72
.
The British regime establish the court system in Tanganyika through the Tanganyika Order in
Council, 1920 which provide for the reception of English laws in the territory,73
where the High
Court of Tanganyika and subordinate court thereto were established to deal disputes in the
territory including land disputes.
2.4 After Independence
Tanzania gained its independence from British regime in 1961. After independence the
government retained the colonial structure and later adopted socialist policies of Ujamaa which
even gave more power to the government officials to deal with land issues. Some of the officials
include party officials74
especially after the villagisation programme.
The Ministry of Lands became more involved in land disputes settlement organs through
tribunals. This included the Customary Land Tribunal and Customary Land Appeal Tribunal
which dealt with disputes relating to enfranchisement land in specified geographical areas75
,
Tribunal dealing with disputes within the rental sector on some tenant and land lord
relationship76
, and tribunals on disputes on alienated land which needed administrative
69
Cap 334 70
GN 452 OF 1956 71
GN Number 91of 1 72
Cap 283 of 1959 73
Article 17(1) of the Tanganyika Order in Council established Her Majesty High Court of Tanganyika, while sub-
article (2) of the TOC declared for the application of the Indian Laws I Tanganyika, the English common law,
doctrine of equity and statute of general application, as well as other laws which were in force in the territory at the
date of the commencement of the order. 74
The so called “ Chama kushikahatamu” 75
See the Customany Leasehold (Enfranchisement) Act, No. 47/1968 76
See the Rent Restriction Act, No 17 of 1984
25
intervention of the Government under the Land (Settlement of Disputes) Act 1963.77
However all
the above tribunals are now disestablished after the enactment of the Land Disputes Courts
Act,200278
.The enactment of Regulation of Land Tenure (Established Villages) Act, 1992 Act
aimed at creating for the government a decisive rule in land disputes solving mechanism and
rectifying the anomalies arising from the legal jungle bequeathed by the 1970‟s villagization
programme. The Act specifically barred any claim for remedy relating to the extinction of
customary rights in question in any court of law, and usurped and diversified the power of courts
of land into the executive arm of state empowering the minister for lands to establish „customary
land tribunal‟ with exclusive jurisdiction to adjudicate all land disputes relating to land
ownership in established villages.79
Before the establishment of the new land courts in Tanzania, all other ordinary courts namely the
Primary Court, the District Court, the Resident Magistrate Court, the High Court and the Court
Appeal of Tanzania had power to determine land disputes according to law80
. Though during
their existence in solving and determine land disputes, the ordinary courts at one point proved to
be very inefficient in the adjudication of land disputes due to the population pressure in some
parts of Tanzania, particularly Kilimanjaro Region, Ukerewe district, some parts of Kagera,
Mara Region in Tarime district and Mbeya Region. It is from that tune that the Government
form a presidential commission on land matter commonly known as Shivji commission which
comes up with its report in 1992, the report that lead to formulation of National land policy of
77
No -25 of 1963 78
See section 53 Land Disputes court Act, 2002 79
In Attorney General V.Lohay Akonay and Joseph Lohay (1995) TLR 80, the provision of the Regulation of land
Tenure (established village) Act, 1992, were nullified by the court for them being inconsistent with the constitution
of the United Republic of Tanzania of 1977. 80
Rwegasira, A. (2012) Land as a human Right, a history of Land law and practice in Tanzania at page 326.
26
1995. The National land policy have lead enactment of new legislation, of what in the present
time Land Act 1999 and Village Land Act 199981
in which both section 167 of the Land Act and
section 62 of the Village Land Act introduced a specialized special system of courts to deal with
land matters.
The introduced courts operates hierarchically on the down – up basis and include the Village
Land Council, the Ward Tribunals, the District Land and Housing Tribunal, the High Court of
Tanzania as well as the Court of Appeal of Tanzania. The introduction of these land courts by the
Land Act82
and Village Land Act83
lead to enactment of a new Act that is the Land Disputes
Courts Act.84
The Land Disputes Courts Act among other things aims to establish the land
disputes settlement machinery or land courts in Tanzania.
2.5 Introduction of the Land Courts
For the government to eliminates the problems that were facing the ordinary courts in solving
land disputes, a set of distinct dispute mechanism has been established to settle land dispute in
Tanzania. This results into establishment of Village Land Council, Ward Tribunal, District Land
and Housing Tribunal, High Court (Land Division) and the Court of Appeal of Tanzania. The
first three organs are the quasi judicial bodies while the last two are judicial bodies.
81
Cap 113 and cap 114 respectively 82
Cap113 83
Cap 114 84
(Cap 216 R.E 2006)
27
2.5.1 Meaning of a Tribunal
A tribunal is an administrative body which exercise the powers to adjudicate. Although tribunal
are not courts of law, they adhere to the principles of natural justice to reach a fair decision.85
Tribunals are extra- judicial disputes settlement bodies they are empowered to determined issues
which affect the rights of individuals.86
Tribunal has also been defined to mean a group of people
with an authority to settle certain types of disputes.87
In this research study the term tribunal is conceived as an adjudicating body constituted by the
state and invested with judicial, as distinguished from purely administrative or executive
functions, tribunals decides disputes in place of ordinary courts of law, a tribunals power of
adjudication of disputes does not necessarily make the body a tribunal. In order to be a tribunal,
it is essential that such power of adjudication must be derived from a statute and not from an
agreement between the parties.88
According to Thakker, C.S (Takwani)89
administrative tribunals have the following characteristic
a) An administrative tribunal is a creation of a statute and thus it has a statutory origin
b) It has some of the trapping of a court but not all.
c) An administrative tribunal is entrusted with judicial power of the state and thus, performs
judicial and quasi – judicial functional as distinguished from pure administrative or
executive functions and is bound to act judicially.
85
Upadhayaya, J.J. R (2004) Administrative law 5th
edition, Allahabad central law agency, at page 127 86
Salwan, S.L. and MArang, V; (1997) academics legal dictionary 12th
Edition . New Delhi. Academic P. 294 87
Crowther, J. (1995) Oxford advanced learners dictionary of current English 5th
edition. London oxford university
press 1276 88
Thakker, M.C and Thakker C.K(2004) Lectures on administrative law, Lucknow. Eastern Book company at Pg.
194 89
Thakker, C.K., ( Takwani) (1998). Lectures on Administrative Law, Lucknow. Eastern Book Company at pg 204
28
d) Even with regard to procedural matters, an administrative tribunal possesses power of a
court e.g. to summon witnesses, to administer oath, to compel production of documents,
ets.
e) An administrative tribunal is not bound by strict rules of evidence and procedure.
f) The decisions of most of the tribunals are in fact judicial rather than administrative in as
much as they have to record findings of facts objectively and them to apply the law to
them without regard to executive policy, though the discretion is conferred on them it is
to be exercised objectively and judicially.
g) Most of the administrative tribunals are not concerned exclusively with the cases in
which government is a party they also decide disputes between two private parties e.g.
election tribunal, rent tribunal, industrial tribunal, etc.
h) Administrative tribunals are independent and they are not subject to any administrative
interference in the discharge of their judicial or quasi- judicial functions.
i) The prerogative writs of certioraris and prohibition are available against the decisions of
administrative tribunals.
Ward Tribunals have the above characteristics, as they are a creation of a statute, are entrusted
with judicial power, to perform judicial functions, they have the power to summon witnesses
they are not bound by strict rules of evidence and procedure and their decisions are in fact
judicial, rather than administrative.
Ward tribunals as an administrative tribunal, are also distinguishable from ordinary courts of
law, as their judicial powers are not derived from the state, they are created by statute and
invested with judicial powers. A court of law is bound by all the rules of evidence and procedure
but Ward Tribunals are not bound by rules evidence and procedure, judges and magistrates of
29
ordinary courts are independent of the executive branch of government in respect their tenure,
terms and conditions of service, while members of ward tribunals are entirely in the hands of the
local government authority establishing them. Ordinary courts are presided over by an officer
trained in law, but members of ward tribunal are not trained in law, also a court of law is bound
by precedent, principles of res judicator and estoppels, ward tribunals are not strictly bound by
those principles.
2.5.2 The Village Land Council
The Village Land Council is under the Ministry of Local Government (District Authorities). The
VLC is responsible to the Director of the District Council in which that village is situated. This
judicial body is established under section 167(1) (e) of the land Act to mean one of the courts of
law empowered to deal with land matters. The village land Act supports the proposition that the
VLC is the court of law vested with power to deal with land disputes90
. Likewise the same is
provided under section 3(2) (a).91
The VLC is established by the village council with such a village upon approval by the village
Assembly92
. The village land council is designated as the lowest land court mandated to mediate
and assist parties to a land dispute arising in that particular village to achieve an amicable
solution.
90
See. S. 62(2) (e) of Village Land Act. 91
The Land Disputes Courts Act No.2 of 2002. 92
Section 60 (2) and (b) of the Village Land Act.
30
The composition of the Village Land Council consists of not less than five members and not
more than seven members and contains not less than two members who shall be women. For one
to be a member of the village land council he/ she must be a person of high integrity and
knowledge individual, resident of that village with the age of 18 years, a citizen of Tanzania who
is not a member of parliament or magistrate but mentally fit93
.
In their course of holding the meeting, the members among themselves elect one of the members
to be the convener/ chairman of the meeting and who will be the custodian of the records of the
meeting. At the time of issuing a decision it will be by majority vote but in case of equal votes
the convener shall have a casting vote.
The quorum for the meeting shall be four members of whom at least one shall be a woman. The
village land council is vested with two main power which are appellate capacity and mediation
capacity/ power. Under the appellate power the first instance of on appellate power of the village
land council is where the decision of the village adjudicating committee is challenged by an
interested party aggrieve by the decision through appeal94
. The aggrieved party may challenge
the decision of the village adjudicating committee through appeal to the village land council
within thirty days from the date of provisional adjudication record was published by the village
adjudicating committee.95
The VLC in its course of exercising such powers, the council is with all the powers and shall
comply with all the procedures applicable to a village adjudicating committee. Here the village
land council is well empowered to amend the adjudicating record, correct any error in the
93
Section 60(5) of Village Land Act. 94
Section 55(1) of the Village Land Act. 95
Section 55(2), also see section 54(7) Ibid.
31
adjudicating record and or give direction that the village adjudication conduct further
investigation into the subject matter of appeal. Where the council deems it fit and just, it may call
upon a person who likely to be affected by the decision but has not appealed and avail him with
an opportunity of being heard on appeal before the appeal is determined96
. Where a leaves is first
sought, the decision issued thereto is appealable to the District Land and Housing Tribunal
within the locality in which such VLC is situated97
.
Another important instance where the Village Land Council operates as an appellate body is
under the process of staying the suit98
. It is provided among other things that, if the consent of
the chairperson of the village adjudication committee or where the central adjudication is taking
place, No person is allowed to instituted any civil action or proceeding of any kind in relation to
land adjudication until the adjudication record is final. In the same hand where any action or
proceeding has begin be it in village adjudicating or application for determination of the
adjudication no proceeding may be instituted until the finality of the said proceedings. Any one
aggrieved by the decision of the chairman in this regard may appeal to the village land council
within fourteen (14) days and may further appeal to the court of competent jurisdiction99
. Here
the court of competent jurisdiction is either the ward tribunal or the District Land and Housing
Tribunal, depending on the value of the land in disputes, Note that the ward tribunal is vested
with pecuniary jurisdiction of not more than three million100
. Though not specifically provided,
but it is obvious that where the subject matter in dispute has a value of more than three million
96
See, section 55 (4) of Village Land Act. 97
S. 55(5) Ibid. 98
See s. 59(1) ibid. 99
S. 59(1), (2) and (3) ibid. 100
S. 15 of Act No. 2 of 2002.
32
shillings, and such matter has commenced from the village land council, automatically the
aggrieved party will take the matter to the District Land and Housing Tribunal.
The second capacity of the VLC is that of mediation. The council is purposely established for
mediation as the central role/ task when it falls within the hierarchy of the bodies established to
settle land disputes as it is the lowest court with exclusive jurisdiction to settle land disputes101
.
This power of the village land council to operate as the mediator in land matter is its central task.
At the village land council claimants are not compelled to register their cases in the village land
council102
and are at liberty at any time and any stage of mediation to cease and withdraw their
dispute from it. It has no power to enforce its decision and there is no procedure as how appeals
from it pass to the ward Tribunal, as the next court in the ladder. In fact the Village Land Council
seems to be both a “mediator” between villagers disputant, as its main function, as well as “Court
of law” with exclusive jurisdiction to hear and decide any dispute, action and proceedings
concerning village land.
It is clearly settled that in all instance where the village land council is vested with power to
mediate the parties, and in case mediation fails, the parties are entitled to refer the matter to the
courts of competent jurisdiction. The courts of competent jurisdiction for this matter are the ward
Tribunal103
. The VLC has unlimited competent jurisdiction in all land disputes within the village.
101
S. 167(1) (e) of Cap 114, section 62(2) (e) of Village Land Act, and S. 3 (1) and (2) of the Land Disputes Courts
Act, No 2/2002. 102
S. 61(6) Village Land Act, 1999. 103
See s. 9 of Land Disputes courts Act.
33
2.5.3 The Ward Tribunal
In this study the term Ward Tribunal is used to refer to tribunals established in every ward, in
Tanzania mainland, having quasi- judicial power to adjudicate upon civil and criminal matters,
the primary function of the ward tribunal is to secure peace and harmony in the area for which it
is established by mediating and endeavoring to obtain just and amicable settlement of disputes.
This is the second lowest land court empowered to enquire into and determine through mediation
all disputes concerning land in the area of jurisdiction of the District council in which is
established104
. It is pecuniary jurisdiction in land disputes is limited to property valued at not
more than three million Tanzania shillings105
. A quorum in all matters of mediation is constituted
by three members, one of who must at least be a woman106
and the decision is reached by a
majority decision and in case of equality of votes, the chairman has a casting vote107
.
The procedures are governed by part IV of the Land Disputes Courts Act, 2002. Appeals from
the Ward Tribunal are heard in the District Land and Housing Tribunal108
, and at the same time
all decisions and orders of the ward Tribunal are supposed to be sent to the District Land and
Housing Tribunal for enforcement109
. In the Ward Tribunal advocates have no right of
appearance before it.110
Ordinary the Ward Tribunals are established under the Ward Tribunal Act No. 7 of 1985, with
power to secure peace and harmony in their area of jurisdiction by mediating various kinds of
104
S. 10 (1) Land Disputes Courts Act, 2002, s.167(1)(d) Land Act, 1999, s.62(2) Village Land Act, 1999 and also s.
3(2) (b) Land Disputes Courts Act, 2002. 105
S. 15 of Land Disputes Courts Act, 2002. 106
S. 14(1) Land Disputes Courts Act, 2002. 107
S. 14(3) Land Disputes Courts Act, 2002 108
S. 19 Land Disputes Court Act, 2002 109
S. 16(3) Land Disputes Courts Act, 2002. 110
S. 18 of Land Disputes Courts Act, 2002.
34
disputes (of civil and criminal nature)111
. The new land laws therefore do not take away the ward
Tribunal‟s original powers, instead they add them power to enquire into and determine land
disputes112
. Though there is some procedural differences that exist when handling land matters in
which provision of the Land Disputes Courts Act, 2002 takes precedence in case of any
inconsistency with provision of the Ward Tribunal Act 1985113
. That is to say, several provision
of the Ward Tribunal Act does not apply in land disputes114
.
2.5.4 The District Land and Housing Tribunal.
The District Land and Housing Tribunal may be established at district, region or zone level115
. It
has been vested with territorial jurisdiction which enables it to operate the said district, region or
zone within which it is established. Good example is what has been seen in Mara Region where
the entire region is with only two tribunals situated at Tarime district which serves Tarime
district and Rorya district and the second one situated at Musoma district at Musoma Municipal
which serves Musoma District, Butiama District, Bunda District and Serengeti District. Currently
in Tanzania there are only fifty (50) District land and Tribunals which are operating116
. The
District law and Housing Tribunal is vested with pecuniary Jurisdiction at a tune of two hundred
million and three hundred million Tanzania shillings for movable and immovable property
respectively117
. The language of the tribunal for this matter is either English or Kiswahili but the
records, judgment as well as the decree are reduced down in English.
111
S. 8 of Ward Tribunal Act, 1985. 112
S. 13 of Land Dispute Courts Act, 2002. 113
S. 10 (2) Land Disputes Courts Act, 2002. 114
Look on Regulation 6 of the schedule to the Land Disputes Court Act, 2002, which exempts section 20, 21, 22
and 23 of the Ward Tribunal Act, 1985 on Land disputes. 115
S. 22(1) of Land Disputes Courts Act, 2002. 116
The speech of Hon. Willium Lukuvi, Minister for Land, Housing and Settlement Developed in May 2016 before
the National Assembly during the annual Budget Debate. 117
See s. 33(2) of Act No . 2 of 2002 as amended by Written Law (Miscellaneous Amendments) No.4) Act, 2017.
35
The tribunal is composed of the chairman and the two assessors at the hearing through each
tribunal must have at least seven assessors118
. Out of seven assessors three of whom shall be
women. The chairperson must be a lawyer and should sworn in before taking office by a judge of
the High court119
. In reaching the decision the chairman is supposed to take into account the
opinion of assessors but is not bound by their opinions120
. The chairman also has special powers
to decide on certain matters alone, such matters includes objections based on point of laws,
application for executions of orders and decrees and interlocutory application.121
These shall be the Registrar and assistant Registrar of the tribunal who shall be appointed by the
president. The Registrar is empowered to deal with administrative issues and shall be the chief
executive of the Tribunal122
. The DLHT when dealing with administration of Justice over the
disputed land is vested with five main tasks, these includes, its operates as a court of original
jurisdiction to entertain the subject matter in dispute, it is an appellate body, a revising body, and
an executing body of its own decision and the decision issued by the Ward Tribunals.
The Tribunal is vested with powers to deal with any subject matter in dispute over land as a court
of first instance. It is well documented that the Tribunal shall be guided by the Jurisdiction
within which it can exercise its function. In the Tribunal advocates have a right of appearance
before the tribunal123
. The advocates are vested with audience with the Tribunal as well as any
118
See s. 26 of Land Disputes Courts Acts, 2002, provides that the chairman is appointed by the minister for lands
while the assessors are appointed by minister after consultation with Regional commissioner. 119
S. 25 of Land Disputes Courts Act, 2002. Amended by the Written Laws (Miscellanious Amendment) Act No. 12
of 2004. 120
See S. 24 of Land Disputes Courts Act. 121
Regulation 22, Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2002, (GN
174/2003). 122
See s. 28 of Act No. of 2002. 123
S. 30 of Act No 2 of 2002.
36
recognized agent of any interested party. The proceedings are conducted in public and the
Tribunal is bound to issue the decision timely for that best interest of Justice. Where a party is
aggrieved by the decision of the Tribunal a right to appeal is availed within sixty (60) days from
the date the judgment was issued. On appeal, the Tribunal is properly constituted when a
presiding chairperson entertain it with not less than two assessors.
When dealing with appeal the Tribunal may rely on the records present before it from the Ward
Tribunal. It deems it right, additional evidence may be received. But furthermore, the Tribunal is
permitted to make inquiry as it deems right in relation to the appeal brought before it. Each party
to an appeal may by represented by an advocate or any recognized agent. It is well established
that the relief sought on appeal may include confirmation of the decision of the Ward Tribunal,
reversing and or varying the decision, quashing the decision or an order for trial de novo124
.
Where the order for trial de novo is issued, the tribunal shall direct on how to deal with the
defect.
In its revision capacity, the District Land and Housing Tribunal may call for records of the Ward
Tribunal for the purpose of examining the records of any proceeding thereto125
. When exercising
revisionary powers the tribunal may invoke the powers vested to its on appeal. This position is
well reasoned in the case of Nahodha Mpaka v. Agatha Zombe (Unreported)126
in which the
High court maintains that, being the case the quorum which constitutes the tribunal on appeal
applies Mutatis Mutandis to revision.
124
S. 35 Ibid. 125
S. 36 Ibid. 126
High Court of Tanzania at Songea, Land Appeal No. 1/2005 (unreported). Also see the provision of section 36(2)
of Land Disputes Courts Act, 2002.
37
As such the District Land and Housing Tribunal is vested with power to execute its own orders
and order of the Ward Tribunal. It is important to understand here that, at all the Ward Tribunal
cannot execute the decree of its own, such powers are vested to the District Land and Housing
Tribunal127
. And those orders and decree of its own are executed by the tribunal itself128
.
2.5.5 The High Court of Tanzania
In the Land Disputes Courts Act 2002, under section 3(2) (d)129
establish the High Court of
Tanzania (Land Division) as the fourth court in the ladder of land courts Tanzania. With effect
from the 1St
day of December 2009 the Chief Justice of Tanzania130
appointed all judges of the
High Court to be judges of the High Court (Land division). Hence the High Court of Tanzania
(Land Division) is no longer vested with exclusive jurisdiction to entertain land matters. The
powers are also vested to the High Court of Tanzania Main Registry131
. It is on this regard that
the courts that has been vested with exclusive jurisdiction on land matters are only the Village
Land Council, the Ward Tribunal and the District Land and Housing Tribunals. The High Court
of Tanzania is established by the Constitution of the United Republic of Tanzania132
. The
jurisdiction of the High Court in a special power may be vested to the court by the statutory law,
for this matter, the statutory powers of the High Court of Tanzania is derive from the Land
Disputes Courts Act133
. In the exercise of its power under the law the High Court has various
obligation, it is a court which entertains matters of which it has original jurisdiction, appeals
from the DLHT, revisionary and supervisory powers and it executes its own orders.
127
S. 16 (3) of Land Disputes Courts Act, No. 02 of 2002. 128
Ibid s. 33(3). 129
Cap 216 130
His Lordship Mr. Justice Augostino Ramadhani 131
S. 17, 19, 21, 35 and 36 of the written laws (Misc Amendment) Acts, No.2 of 2010. 132
Article 108(1) of The Constitution of United Republic of Tanzania Cap 2, R.E 2002. 133
S. 3 and 37 of the Land Disputes Courts Act No. 02 of 2002
38
When the High court sits as a court of original, jurisdiction, it is empowered to deal with all
subject matters of land nature whose pecuniary jurisdiction exceeds three hundred and two
hundred million shillings for immovable and movable property respectively134
. In all proceedings
involving the public corporation and other matters relating to the national interests as the
Minister for land may publish in the Gazette, touching land shall be dealt with by the High court
in its power as a court of original jurisdiction. Though this being the position but still the District
Land and Housing Tribunals may deal with land matters touching the public corporation in
special circumstance, this include within the locality where these is no High Court135
. On the
same circumstance the High Court is vested with mandate in all the proceeding relating to land
but where there is no specific court that has been vested with such power.136
The High Court on the other hand functions as an appellate court in case a party to the
proceeding is aggrieved by the decision of the District Land and Housing Tribunal. It is provided
that an appeal is a right which has to be exercised within sixty (60) days from the date of
judgment.137
The appeal to the High Court is lodged to be court whose decision is to be
challenged by way of petition.
The appeals that originates from the proceedings that emanated from the Ward Tribunal must
contains the petition of appeal, record of the proceedings, the judgment and the decree and the
same must be presented in the High Court by the Tribunal within fourteen days from the date of
134
S. 37(a) and (b) of Land Disputes Courts Act, as amended by, section 9 of the Written Law (Misc. Amendment)
No. 4 Act 2017. 135
Mirindo, F. (2014), Administration of Justice in Main land Tanzania, 1st Ed. Law Africa at page 145, also see
section 37(2) of the Land Disputes courts Act, Cap 216, 2002 as amended by the written laws (MiscAmendment)
No.11 of 2005. 136
S. 37 (e) of Cap 216. 137
Ibid section 38(1).
39
filling the petition. In such appeal where there is any issue basing on customary law, the High
Court shall sit with two assessors. And likewise the High Court may refer the said matter to the
expert or panel of experts138
, though their decision may not bind the judge to his decision on
appeal.
For ordinary appeals from the District Land and Housing Tribunal where original jurisdiction
was exercised, the Judge will sit alone to determine an appeal. The decision may therefore be
confirmed, reversed, amended, varied in any manner or may take or certify for additional
evidence139
.
The same powers on appeal are also vested to the High Court when exercising power to revise
the decision of the District Land and Housing Tribunal. For that matter the High Court judges
sits to ascertain the legality, appropriate and correctness of the tribunal‟s decisions.
When acting as a supervisory body, the High Court may call for records, inspect them and give
directions to the Tribunal. It may call upon any proceedings from the subordinate tribunals either
suo muto or upon application by any interested party for directives and correction of errors if
any. The decision given therefore obtains force and validity as if the powers were exercised on
appeal140
. In case any aggrieved by the decision of the High Court in any instance, may appeal to
the Court of Appeal of Tanzania upon seeking leave from the High Court of Tanzania.141
It turns
out that the High Court has refrained from granting leave to the applicant, then the next avenue
to the aggrieved party is to access the court of Appeal of Tanzania by a second bite. This is done
138
The 4th
schedule of the Magistrate Courts Act, Cap 11 R.E 2002. 139
S. 41 of Cap 216. 140
Ibid section 43. 141
Ibid section 47(1).
40
within fourteen days from the date of refusal142
. Is a trite principles of law, that a rejected
application for leave by the high court cannot be challenged by revision, reference or appeal as it
held in the case of Jerome Michael v. Joshua Okanda (Unreported)143
The High Court is vested
with power to execute the decree of its own. At the same time when the court deems it right may
order execution of the decree to be effected by another court subordinate to it.
2.5.6 The Court of Appeal of Tanzania
This is highest court in the court hierarch. It is established under the constitution144
, the law vest
this court with powers to determine appeals on land matters145
. It is a trite principle of law that
the court of Appeal of Tanzania is governed by the separate laws in conducting its proceedings.
It is governed by the Appellate Jurisdiction Act Cap 141 and the court of Appeal Rule of 2009.
The court is empowered like any other land courts to apply laws as they are elaborated under the
land Act146
. In all land matter any person aggrieved by the decision of the land courts must seek
leave in order to appeal to court of Appeal147
. When leave is rejected by the High Court, then
leave has to be sough to the court of Appeal as a second chance148
. Where the matter originate
from the ward Tribunal and the appeal is then preferred from the third appeal, a person wishing
to access the court of Appeal shall be required to seek for the certificate from the High Court
(Land Division) certifying that these is a point of law involved in the appeal149
. From the
provision of section 47 of Land Disputes Courts Act, it implies that for appellant who wishes to
access the court of Appeal for a third appeal for a land dispute which originated from the Ward
142
Rule 45(b) of the court of Appeal Rules, 2009. 143
Court of Appeal of Tanzania at Mwanza, Civil Appeal No. 19 /2014(unreported) 144
See Article 117 of Cap 2.R.E 2002. 145
S. 48(1) of Cap 216. 146
S. 180 of the Land Act Cap 113. 147
S. 47(1) and (2) of Land Disputes Courts Acts (Cap 216 R.E 2002). 148
S. 5(1) (c) of Cap 216 R.E 2002. 149
S. 47(2) of Cap 216 R.E 2002.
41
Tribunal is required to seek from the High court of Tanzania (Land Division) two orders namely
an order for leave to appeal150
and to get a certificate from the High Court that a point(s) of law
are involved in the matter for the determination of the court of Appeal.
There are basic requirement for the appeal to be preferred at the court of Appeal. The first thing
is the notice of appeal to be lodged within thirty days from the date of the decision and the same
has to be lodged with the Registrar of the High Court and one copy out of the triple copies shall
be filled to the relevant registry151
. The process of filing of a notice has nothing to do with
seeking of the leave or seeking for certificate on the point of law. Each has its own avenue in the
course of proceedings. It is the notice that state whether an appeal is against the whole judgment
or part of it. The notice must be served to the respondent within fourteen days from the date of
filling it.
The court of Appeal is also vested with powers to revise the proceedings of the High Court when
performing the functions as a land court. Revision powers of the court may be done suo moto or
by an interested party to the proceeding152
. The court is moved by a notice of motion and an
affidavit. There is no requirement for annexing any other document to the application. It is
important to note that where the matter have been initiated by the court Suo moto only a notice to
be issued by the court to the parties is required. In its course of exercising the revisionary powers
the court of Appeal direct as if it is sitting on appeal. Also the court of Appeal is vested with
review powers of its own decision. This remedy is entertained in a very limited way. This is
provided under the provision of rule 66 of the Court of Appeal Rules 2009, which provides for
150
See the case of Lucy Daniel and two others V/S Finca and two others, Civil Appeal No. 96 of 2013 (unreported). 151
Rule 83 of the Court of Appeal Rules 2009. 152
S. 4 of Cap 141 R.E 2002.
42
the instance which attracts this remedy, these includes the instance when the decision was based
on a manifest error on the face of the record resulting in the miscarriage of justice, when a party
was wrongly deprived of an opportunity to be heard.
When the court‟s decision is a nullity, court had no jurisdiction to entertain the case or the
judgment was procured illegally, or by fraud or perjury. The application for review applies in the
same manner as it is to revision save that review is done by the same court which issued the
order or judgment as the case may be and within sixty days from the date of the order or
judgment. The court is moved by the notice of motion. The decision issued thereof is final and
conclusive.
It has been well established that the Court of Appeal may sit as a court of reference into the
matter that emanated from its own decision. It is governed by Rule 62 of the Court of Appeal
Rules.
2.6. Conclusion
The introduction of this new way of dealing with disputes in land is a welcome development in a
situation where ordinary court had failed to address many disputes in land that were previously
pending in ordinary courts of law. The good thing with these mechanisms and especially at the
village and ward levels is the fact that Village Land Council and Ward Tribunal as settlement of
disputes machineries employs the traditional means and people sitting in them are people who
are elected by the people themselves. For the DLHT though has been introduced in some places
in the country, but still missing in many other district, as not all the districts in Tanzania
mainland have the DLHT. In the village level and ward level, where these land courts (Village
Land Council and Ward Tribunal) have been put in place, some other powerful people and
43
corrupt individuals have not shown any inclination to respect them. The efficacy and efficiency
of land disputes settlement machinery especially the Ward Tribunal have not yet absolutely
realized.
44
CHAPTER THREE
THE LAW REGULATING THE WARD TRIBUNALS
3.1 Introduction
A Ward Tribunal is one of the land courts which was introduced after the enactment of the Land
Act 1999 and the Village Land Act 1999153
and thereafter established under section 3 (2) (b) of
the Land Disputes Courts Act 2002.154
As body under the control of the Ministry of Regional
Administration and Local Government, the Ward Tribunal is accountable to the Director of
appropriate Local Government Authorities in which such Ward Tribunal is found, that is to say,
the District Council, the Town Council, the Municipal Council, and the City Council. The Ward
Tribunal has ordinarily been a body vested with the original jurisdiction to entertain land
disputes.
3.2 Establishment of the Ward Tribunal
The Ward Tribunals were principally established under the Ward Tribunal Act155
with power to
secure peace and harmony in their areas of jurisdiction by mediating various kinds of
dispute.156
The Act required that every ward should have a Ward Tribunal, and where there
emerged special circumstance and high needs the Minister responsible for local government, by
notice published in the Gazette, could establish two tribunals for a ward if he is of the opinion
that there are special circumstance which make it necessary or desirable to do so.157
153
Cap 113 and 114 respectively 154
Cap 216 155
S. 3 of Act No. 7 of 1985, Cap 206. 156
S. 8 of Ward Tribunal Act, 1985. 157
See the proviso to s. 3 of Cap 206.
45
Ward Tribunals were established so as to reduce high backlog of petty cases pending in ordinary
courts of law, making access of legal services to the community, involving the community to
participate in solving their own disputes that arise in their society and free from legal technical
procedures. As a quasi-judicial body, Ward Tribunals enjoy freedom, expressed expertise in a
particular branch of litigation and the decision may be subject to appeal.
3.2.1 Composition of the Ward Tribunals
The Ward Tribunal is governed principally by two laws in its process of functioning in the
administration of justice. The members of the Ward Tribunal are appointed by the ward
committee. Where the ward committee is established in every ward, in the area of the District
Council or Urban area.158
The Ward Tribunal consist of not less than four(4) or more than eight (8) members who are
elected by ward committee from amongst a list of names of persons resident in the wards159
. The
chairman of the Ward Tribunal is appointed by the appropriate authority from among the
members elected by the ward committee160
, and the secretary to the tribunal who shall be
appointed by the local government authority where the tribunal belongs upon recommendation of
the ward committee.161
At the Ward Tribunal the quorum at the sitting of the tribunal shall be one half of the total
number of all members of the Ward Tribunal162
. The decision at the Ward Tribunal is reached at
158
See s. 31 (1) of The Local Government (District Authorities Act) Cap 287, and S.15(1) of Local Government
(Urban Authorities) Act No. 8, 1982. 159
S. 4(1) (a) of Cap 206. 160
Ibid s. 4(1), (b). 161
Ibid s. 4(2) 162
See s. 4 (3) of Cap 206.
46
any sitting of the tribunal by the majority of members who present, and such majority decision of
the members deemed to be the decision of the tribunal. In the event of an equality of votes, the
presiding chairman shall have a casting vote in addition to his or her original vote.163
3.2.2 Qualification of Members of Ward Tribunal
The Ward Tribunal Act164
provides for the qualification of member of the Ward Tribunal. For
one to be elected a member of the Ward Tribunal he/ she shall possess the following
qualification165
.
(i) The person shall not be a member of the National Assembly
(ii) The person shall not be a member of a village council or a ward committee.
(iii) The person need to be Ward Tribunal member shall not be a civil servant in the
service of the united Republic of Tanzania.
(iv) He or she shall be sane or mental fit person.
(v) The person shall not be someone who is legally qualified or one who is employed in
the Judiciary of Tanzania.
(vi) Shall be person whose apparent age is eighteen years and above.
(vii) The member shall be a citizen of the United Republic of Tanzania.
(viii) Shall be one who has not been previously been convicted of criminal offence
involving moral turpitude.
For the secretary of the ward, he/ she shall possess the same qualification as those of ordinary
members, but the Act goes further and requires that such person to be recommended as the
163
Ibid section 4(4). 164
No. 7 of 1985, Cap 206. 165
S. 5 (1) of Cap 206.
47
secretary of the tribunal he shall be sufficiently literate and educated and capable of satisfactory
discharging the duties of secretary166
. What is more extra qualification for secretary of the Ward
Tribunal a part from the member of the tribunal is that of being sufficiently literate, educated
and capable of being satisfactory to discharge the duties of the secretary. But here the law is
silent on the level of education the secretary has to possess and how upon recommendation the
ward committed can base on which condition and terms to satisfy themselves that such person is
sufficiently literate.
3.2.3. Tenure of Office of Members of the Ward Tribunal.
The office of the Ward Tribunal is a public office in which members are entrusted with the duties
to the public. The members of the Ward Tribunal hold office for duration of three years from the
date of their election, such members are eligible for re – election after the expiration of the first
three year the term167
. Where any vacancy in the membership of the Ward Tribunal occurs either
by death, resignation of member or effluxion of time or any other reasonable cause, the
appropriate authority shall appoint an appropriate person to fill the vacancy and such appointed
person by the appropriate authority shall hold office for the remain period of time until the next
election of members168
. The appropriate authority for appointing the member to fill the vacancy
under this context is the district council or the urban authority within whose area the tribunal is
situated or any person that have been dually appointed by District Council or the Urban authority
to perform such function.
The appointment of the secretary by District Council or the Urban Authority to the office of
secretary is permanent in the service of the District council or Urban Authority to which the
166
Ibid section 5(2) 167
Ibid section 6(1). 168
Ibid section 6(2).
48
person appointed to be secretary is situated169
. Though provided in the law that the appointment
of the secretary of the Ward Tribunal shall permanent in the service of the Local Government
authority, but still the law is silent on how such a person who is recommended by the ward
committee to be appointed by district council or urban authority to be the secretary of tribunal be
in the permanent service, as clearly the laws in relation to public service recruitment have a
different style or procedure of recruitment of person in public service. Note that even the
category of the position of ward secretary is no where shown or found in public service
categories or position. Hence even their scale of salaries becomes difficult to determine.
From that view of secretary of the ward Tribunal being in the permanent service, it is correctly to
say that the tenure of service of the secretary of the Ward Tribunal is the same as those of other
public servant in the District or urban authority.
3.2.4 Jurisdiction of the Ward Tribunal
The Ward Tribunal have territorial jurisdiction to deal with matters which arose within the
geographical boundaries of the ward. The Ward Tribunal Act goes further by categorizing other
jurisdiction of the Ward Tribunal as general jurisdiction, jurisdiction of Ward Tribunal on
particular matters and pecuniary jurisdiction of Ward Tribunal.
3.2.3.1 General Jurisdiction of the Ward Tribunal
The primary function of the Ward Tribunal is to secure peace and harmony is the ward by
mediating and endeavoring to obtain just and amicable settlement of disputes170
. When dealing
with matters relating to dispute, the tribunal shall attempt to reach a settlement by mediation
169
Ibid section 6(3). 170
Ibid s.8(1)
49
before exercising its compulsive power of adjudication. And the Ward Tribunal may adjourn any
proceeding relating to dispute in which it is exercising that jurisdiction if it thinks that by doing
so a just and amicable settlement of dispute can be reached.
Also the Ward Tribunal have jurisdiction in relation to all matter and disputes that arise under all
laws and directives passed by the District council or urban authorities, and some laws and orders
for the time being in force in relation to or affecting the business and affairs of the ward, that are
made or those that are passed by a local government authority or any other competent legislative
authority within the area of the tribunal territory171
.
3.2.3.2 Jurisdiction Ward Tribunal on Particular Matters
The WT has been mandated by the law to enquire into and determine disputes relating to the
offence of criminal nature and those of civil nature, and in determination of those disputes the
Ward Tribunal may impose penalties to the defaulters172
. Examples of criminal offences that
Ward Tribunal dealt with include using abusive language and brawling, threatening with
violence, Disturbing person from religious assembly, abduction of girls under 16 years, forcible
detainer, Going armed in public Affray, wearing uniform without authority, neglecting to
provide food, fouling water, common assault and other of the like as prescribed in the schedule
to Ward Tribunal Act, No 7 of 1985.On civil matters, the Ward Tribunal has jurisdiction on
matter like minor disputes relating to dowry and all disputes relating to land.
171
See s. 8 (3) of Cap 206. 172
Ibid s. 9 (1).
50
Other offences in which Ward Tribunal have powers on are like, contravening of by-laws made
by a Village Council or Town, District or Municipal Council which relates to Agriculture,
educational and health matters, failure to enroll or send to school an enrolled child and gambling.
3.2.3.3 Pecuniary Jurisdiction of Ward Tribunal
The Ward Tribunal in exercising of its jurisdiction is limited to various awards and
penalties.173
In criminal matters, a fine not exceeding ten thousand shillings, in default of
payment of a fine which does not exceed one thousand shillings, the convicted person shall be
committed to work on an on – going communal project for not more than ten days, In case of
default for payment of a fine exceeding one thousand shillings, the matter shall be referred to the
primary court for committal of the convicted person to prison or any others appropriate action
under the law, and in civil matter award not exceeding ten thousand shillings.
3.2.4 Procedures in the Ward Tribunal
In the Ward Tribunal, the proceeding may be initiated by making of a complaint to the secretary
of the tribunal, the secretary of an appropriate authority, the chairman of a village council or a
ten cell leader174
. And also any person who reasonably believes that any person has committed
an offence may make a complaint about the matter to any of the persons either chairman of the
Village Council, a ten – cell leader, secretary of tribunal and the secretary of the appropriate
authority.175
The complaints made to other person specified by the law not the secretary of the Ward Tribunal,
such person shall have to cause the complaint to be submitted to the Ward Tribunal secretary,
173
See section 10(1) of Cap 206. 174
Ibid section 11(1). 175
Ibid section 11(2).
51
whose then will enter the complaint into records of the tribunal and arrange for it to be heard and
determined by the tribunal in accordance with procedure of the tribunal for hearing and
determination of disputes176
.
3.2.4.1 Orders Imposed by the Ward Tribunal
At the conclusion of the proceeding of the Ward Tribunal, the tribunal may make several orders
depending on the nature and circumstance of the dispute or matter at hand, the order includes177
:-
(i) That a party at fault apologize to the other party.
(ii) A person be censured or admonished at a meeting of the village assembly or Ward
meeting.
(iii) The party at fault pay a specific fine not exceeding a certain among prescribed by the
district council or urban authorities or any other legislative authority.
(iv) That the person or party to pay back what is due to the other person/ party.
(v) The defaulting party to do some community work.
(vi) The defaulting party to carry out any other sanction acceptable in the village or ward.
(vii) That the parties perform any customary act or acts which signify reconciliation.
Where the ward Tribunal issued an order of imprisonment, such order shall be of effect after
endorsed by the primary court magistrate for the area the tribunal is located178
. It is the tribunal
duty after making an order for imprisonment to immediately cause that order to be presented to
the primary court magistrate for endorsement179
. The primary court magistrate upon whom the
order is presented for endorsement, shall endorse the order without delay, if he has no reason to
believe that the tribunal have acted with no jurisdiction or in excess of its powers, Therefore, if
176
Ibid section 11(4). 177
See section 19(2) of Cap 206. 178
See s. 19 (2) of Cap 206. 179
Ibid s. 19(3) of Cap 206.
52
the primary court magistrate believe that the Ward Tribunal has acted without jurisdiction or in
excess powers, he shall exercise his power of revision conferred to him under section 21 of Cap
206 by revising the order of the ward tribunal. The endorsed order shall have the same effect as
any sentence of imprisonment imposed by a primary under any other law180
.
3.2.5 Appeal from Ward Tribunals
Where a party to a dispute is aggrieved by the decision of the Ward Tribunal, such aggrieved
person make appeal to the primary court, such appeal from Ward Tribunal to primary court shall
be in writing181
. The time to appeal is sixty days from the day the tribunal issued its decision. In
criminal cases in which the fine imposed by the Ward Tribunal does not exceed five hundred
shillings and in civil matters where the award does not exceed eight hundred shillings, No appeal
shall laid to the primary court, save for the leave of the primary court182
.
The decision of a primary court on any appeal made to it from the Ward Tribunal is final and
conclusive, except on points of law where the final appeal can be lied to the District Court for
determination on the point of law.
3.3 The Ward Tribunal as Specialized Land Court
As early discussed hereinabove, WTs were established in every ward under the provision of
section 3 of the Ward Tribunal Act 1985183
. The Ward Tribunals are vested with adjudicatory
functions as courts, to determine disputes arising under the Land Act 1999 and the Village Land
Act 1999184
. It is provided under the Land Dispute Courts act that the Ward Tribunal is a court
180
See s. 19 (6) of Cap 206. 181
Ibid section 20(1) 182
See s. 20(2) of cap 206 183
Cap 206 184
See section 13(2) cap 216
53
when dealing with land matters, matters in Land Disputes Courts Act, Land Act and the Village
land Act185
and the Ward Tribunal shall have power in relation to the areas of the District
Council in which it is established.
3.3.1 Composition of Ward Tribunal as Specialized Court
The Ward Tribunal composition is the minimum of four and maximum of eight members, three
of whom must be women186
. In the matter of mediation the ward tribunal shall consist of three
members at least one of whom shall be a woman. The law is silent on the number of member to
sit during full trial, hence reference is made to section 11 of the land disputes courts Act, which
provides for general composition of the ward tribunal to be minimum for and maximum eight.
The more important thing for the tribunal to take into consideration is to ensure that, the tribunal
during trial is properly constituted to be able to form a legal decision or else they shall be faulted
on appeal. The case of Muruga Nchama V Sabina Macharya (Unreported)187
support this
observation. This was appeal from the Ward Tribunal of Pemba ward, in which the appellant was
aggrieved by the decision of the Pemba Ward Tribunal, on the ground that the trial tribunal was
Improperly constituted. The District Land and Housing Tribunal found during the hearing of the
appeal that the judgment of the Ward Tribunal was signed by the chairman and the secretary, but
no quorum was indicated to evidence how many members heard the matter. In allowing the
appeal the tribunal Chairman (Mayeye)” held that the proceeding of the ward tribunal are
nullified, the ward Tribunal to write quorum on each attendance so as to ensure proper
composition of the ward Tribunal”
185
Ibid section 10(1) 186
Section 11 of cap 216 187
Land Appeal 11 of 2017 District Land and Housing Tribunal for Tarime. at Tarime (unreported
54
In the instance the chairman shall select all the three members including the convener who shall
also preside at the meeting of the meeting of the tribunal. The presiding chairman shall have a
casting vote in case of equal votes188
. This was, as well a judicial position of the court the High
Court in the case of Juliana Kiyeyeu V. Said Mpewa (Unreported).189
Provided for the right
quorum of the Ward Tribunal on mediation as the chairman, three members the secretary and the
convener, when the matter is placed to Ward Tribunal as account of original jurisdiction on land,
where it has to conduct hearing and decide on the matter in disputes as a court per se. This in
most time happen when the tribunal fails to mediate the parties, then transform itself from a
mediating instrument by just changing the composition of the quorum. The court must be
composed of not less than four members and not more than eight members of whom three shall
be women190
. This quaram has been distinguished from the above instance when the tribunal sits
as a mediating body.
In the case of Joseph Kitango V. Paulina (Unreported) 191
. The court revealed the position on
what should constitute a WT when it sits to try the matter and decide on it as a court of original
jurisdiction. In this case the court reiterated the position of section 11 of Land Disputes Court
Act. It has added a mandatory requirement in the course of interpretation that the names of the
parties as to be distinguish them from males and female must be shown as to ascertain whether
the quorum was complete. In many cases failure to mention the names of the members who
188
Section 14(3) of cap 216 189
High Court of Tanzania (Land Division) at Iringa Misc – Land case Appeal No. 31 of 2012 190
See section 11 of cap 216. 191
High Court of Tanzania ( Land Division) Misc. Land case Appeal No.26 of 2008, at Iringa
55
constituted the quorum has rendered the entire proceeding at the tribunal a nullity. This has
reveals the seriousness and the relevance of having a properly constituted quorum at this level192
.
3.3.2 Qualification and Tenure of Members of the Ward Tribunal
When the Ward Tribunal sit as a special land court the qualification of its members, tenure of
membership and the appointment of the tribunal secretary remain the same as in the ordinary
sitting of the Ward Tribunal as provided under section 5 and 6 of the Ward Tribunal Act 1985193
.
3.3.3 Jurisdiction of Ward Tribunal as specialized Land Court
Specialized land court. As a matter of understanding, the jurisdiction of Ward tribunal when
sitting as special land court is the same as in matter concerning general jurisdiction as provided
under section 8 of the Ward Tribunal Act, in which the general jurisdiction of the Ward Tribunal
fall on its Primary function which is to secure peace and harmony in the area for which it has
been established and secondly to mediate between and assisting parties to arrive at mutually
acceptable solution on any matter concerning land within its jurisdiction.
Upon having this general jurisdiction, the Ward Tribunal have jurisdiction to enquire into and
determine disputes arising under the land Act. The different occurs in terms pecuniary
Jurisdiction, when the ward Tribunal sit as a specialized court, The Tribunal is vested with
pecuniary Jurisdiction of not more than three million shillings in all proceeding of civil nature
relating to land.194
Regardless of the express provision of the law regarding the pecuniary
jurisdiction of the Ward Tribunal, various issues has arisen on the jurisdiction of the Ward
Tribunal when the subject matter may seem exceeding the jurisdiction of the Tribunal but there
192
See the case of Nahodha Mpaka V Agatha Zombe, Land Appeal No. 1 of 2005 at Songea (unreported) 193
Cap 206 194
See section 15 of cap 216
56
is no valuation report to establish it. In John Malombola v.Remmy Kwaya
(Unreported),195
Mansoor J. held among other things that the valuation of the premises cannot be
established in the absence of a valuation report. There has been currently bundles of case to this
position which seems to cause hurdles to those who cannot engage the service of the valuer at a
village or ward level196
. The main issue in connection with the cited cases above is that no person
can evaluate the property in dispute by mere speculation.
3.3.4 Reference of Dispute in Ward Tribunal as Specialized Court
As among its duty the WT may sit as a reference court. This has a quite a very different source, it
emanates from the provision of Village Land Act under section 61 of the village land Act. In
case the village land council has failed to mediated the parties in term of land sharing
arrangement between the pastoralist and the farmers or where there is a dispute on joint village
land use agreement between villages197
in such circumstance if happened in the dispute between
farmers and the pastoralist over the usage of that particular land and the village land council is
unable to resolve them, then a reference is to be made to the ward Tribunal.
A reference to the Ward Tribunal is initiated by making of complaint to the secretary of the
Tribunal, the secretary of an appropriate authority, the chairman of a village council or a ten –
cell leader which is either to be made orally or in writing. When the complaint is in writings shall
be signed by the complainant in case a complaint is made by any person, that person shall if he is
not the secretary of the Tribunal, cause it to be submitted to the secretary of the tribunal who
shall enter it in the records of the Tribunal and arrange for it to be heard and determined by the
195
Misc. Land Appeal No. 91 of 2009, High Court of Tanzania ( Land Division) at Dar es Salaam 196
See also the case of Zaidi Baraka V. Engen Petroleum (1) Ltd, Land case No. 135 of 2004, High court of
Tanzania (Land Division) at Dar es Salaam 197
See section 17 of Land Disputes Courts Act, 2002, also section 11, 58, 61 and 62 of Village Land Act cap 114
R.E 2002.
57
tribunal in accordance with the procedure of the tribunal for hearing and determination of
disputes submitted to it.
3.3.5 Order of the Ward Tribunal as Specialized Court
The Ward Tribunal when sitting as specialized land court makes various orders depending on the
matter in dispute that has been brought before the Ward Tribunal for trial. The Ward Tribunal
has power to order recovery of possession of land, order the specific performance of any
contract, make orders as in nature of injunction, award of any amount claimed award
compensation, order payment of any costs or any orders as the best of interest deems it right198
of
very important to s bear in mind is that once the ward tribunal has issued any award or order or
judgment, it is not empowered to execute it. The power to execute the decree issued by the Ward
Tribunal is vested to the District Land and Housing Tribunal within the area which the Ward
Tribunal is situated199
3.3.6 Appearance of Advocates and Appeals from the Ward Tribunal Sitting as Land
Court.
The Act regulating Ward Tribunal when dealing with land matters as court of original
jurisdiction provide well that the advocate have no audience at ward Tribunal. The right to legal
representation is reserved only for any relative or any member of the household of either to the
proceedings to appear on that behalf of the party upon request of the party200
. The appearance by
such party is only acceptable when it is done at the desire of the interested party to the dispute,
where it is a body corporate, the Director or any authorized person on that behalf, other than an
advocate may appear and act on behalf of that party.
198
See section 11 of Act No 7 of 1985, Cap 206. 199
See section 16 of Act No. 2 of 2002, 200
See section 16 (3) of Act No. 2 of 2002.
58
For the interest of Justice, it is always noted that a right of appeal is one of the constitutional
rights at the Ward Tribunal.201
This right to appeal is vested to the District Land and Housing
Tribunal202
within the locality. The time for such an appeal is within fourth five (45) days from
the date the decision was passed by the ward Tribunal. Where a part has delayed to appeal within
the prescribed time, upon advancing good reason for his/ her delay, the District land and Housing
Tribunal may extend the time for filing an appeal after expiration of the stipulated time203
.
3.4 The Role of District Council and Urban Authorities to Ward Tribunal
The District council or urban authority in which the Ward Tribunals are established are duty
bound for the general policy regarding the operation of the Tribunal and ensure, facilitate and
promote the smooth and effective performance of the ward Tribunals.204
The local authority is responsible in election members of the Ward Tribunal where, the members
are elected by the ward committee and the chairman is appointed by District council or the urban
authorities from among the list of elected by the Ward Tribunal205
. Also the ward committee is
responsible to recommend to the District council the name of person to be appointed by the
District council to be the secretary of the WT206
.
Also the Ward committee debate on the records of WT, as such records are recognized as the
records of Ward Tribunal, then the ward committee be responsible in discussing the records in
201
See section 18 of Act No. 2 of 2002 202
Article 12(6) of The constitution of URT 1977. 203
See section 19 of Act No. 2 of 2002 204
Ibid section 20. 205
Section 7 of Act No. 7 Of 1985 206
See section 4(1) of Cap 206 and section 11 of Cap 216.
59
checking the day to day running of the ward Tribunal.207
The District Council is also responsible
to determine the remuneration of the members of the ward Tribunal208
.
The members of the Tribunal are trained and offered with different seminars conducted by
ministry of local government through District council or urban authorities through formulating
suitable programmes, scheme and seminar for information and education of the members of the
Ward Tribunal on the methods of performing the function of the Tribunal in order to ensure the
efficient and just operations. For instance in Tarime District Council where this study conduct it
has been revealed that in their annually budget, they allocate amounts for money for training and
seminar for members of the Ward Tribunal, the activity which is supervised by the legal unit of
the District council.
3.5 Conclusion
Land is life, everyone looks on it either for farming, livestock keeping, building or any other
investment, due to its sensitivity and importance the established organs for dealing with land
matters in this country should work in a highly and diligence way to avoid creating of new land
problems instead of solving the existing one.
207
See section 4(2) of Cap 206 and section 11 of Cap 216. 208
See section 24(3) of Cap 206.
60
CHAPTER FOUR
DISCUSSION OF FINDINGS ON THE EFFECTIVENESS OF THE WARD TRIBUNAL
4.1 Introduction
The purpose of this chapter is to present the findings based on the hypothesis which guided this
study in the 13 Ward Tribunals at Tarime District Council. Despites the establishment of the
Ward Tribunal aimed at solving land disputes, still these tribunals are ineffective in solving land
disputes.
This chapter presents and analyses the research finding on the effectiveness of Ward Tribunals in
solving land dispute, using field data collected from thirteen (13) selected Ward Tribunals in
Tarime district in Mara Region. The Ward Tribunals that were visited includes Pemba, Sirari,
Regicheli, Mbogi, Gwitiryo, Nyakonga, Nyamwaga, Nyamichale, Itiryo, Nyansincha, Mwema,
susuni and Komaswa Ward Tribunals. As already stated in chapter one of this study, the said
data was collected from various social groups in the study area including members of the Ward
Tribunals, advocates practicing land law, ordinary citizens (who are the stakeholders of the Ward
Tribunals), District Legal Officer, Ward Development Committee members, Chairperson of
District Land and Housing Tribunal at Tarime, Journalist Land Officers and Religious leaders.
The aim was to investigate how Ward Tribunals are effective in solving land disputes.
4.1 Presentation and Analysis of Findings
4.1.1 Effectiveness of Ward Tribunal in Solving Land Disputes
The first hypothesis guiding this study was that Ward Tribunals are ineffective inherent in
solving land disputes in order to test this hypothesis the researcher posed a question intended to
get the respondents opinion on whether the members of this Ward Tribunal are effective or not in
61
solving land disputes. In responding to this question, a total of 42 respondents who were
stakeholder of the Ward Tribunals responded to the question on whether or not the members of
the Ward Tribunals have sufficient knowledge on land law. From the data collected shows that
30 respondents who are stakeholder of Ward Tribunals responds and confirmed that members of
the Ward Tribunal do not possess enough and sufficient knowledge in land law, only 12
respondents under this study, who admits and said that the members of Ward Tribunals
possessed necessary knowledge in dealing with land disputes.
Therefore from the above data suggests that members of Ward Tribunal do not possess sufficient
knowledge of law relating to land matters, which actually lead them incompetent to solve land
disputes brought before them in their tribunals.
The researcher also collected data from 94 respondents who are members of a total of thirteen
Ward Tribunals which are Pemba with 8 members, Sirari with 7 members, Regicheli 7 members,
Mbogi 8 members, Gwitiryo 8 members, Nyakonga 6 members, Nyamwwaga 7 members,
Nyamichale 8 members, Itiryo 8 members, Nyansincha 6 members, Mwema 7 members, Susuni
8 members and lastly Komaswa ward with 6 members. From the members of the Ward Tribunals
under this the researcher wanted to know from them if they had been trained to equip them be in
a good possible to solve land disputes in the Ward tribunals.
The data collected from these respondents shows that 60 respondents which represent 63.8% of
members of Ward Tribunals never went through any formal training in land laws, while 34
respondents which represent 36.1% had undergone training in land law, they further states that
they were trained by paralegals from HAKI MAENDELEO209
. It is apparent from the above that
209
Non Governmental Organization based at Tarime District, with its office located at Sirari town.
62
the majority of the members of the Ward Tribunals selected by the researcher lack the necessary
training to deal with land matters despite the fact that the law have conferred upon them
jurisdiction to deal with land disputes arise at ward level. On interviewing the respondents above,
the respondents continues to insist and say that since their appointment they have never received
any training whatsoever neither on civil nor on land matters, they insist that their lack of training
on land matters lead them incapable in solving land disputes.
Section 26 of the Ward Tribunal Act210
empowers the Minister responsible for local government
to provide members of Ward Tribunals with training. The section provides that, the minister shall
in cooperation with any other ministry or department formulate suitable programmes, schemes
and seminars for information and education of the public and members of the tribunals on
methods of performing the functions of the tribunals. In regard to the above provision of the law,
the minister responsible for local government has a mandatory obligation to ensure that members
of ward tribunals are provided with the necessary training to enable them to, including other
functions solve land disputes in efficiency and just manner. In view of the above findings, it is
apparent that the minister concerned has not fulfilled his obligations provided for under the law,
as most of the respondents who were members of ward tribunals have never received any
training or seminar to equip them with the necessary know how on how to handle land matters.
Also the researcher asked the same question through questionnaires to the respondent who is the
chairman of the District Land and Housing Tribunal at Tarime district211
seeking from him his
opinion as to whether Ward Tribunals are infective in solving land disputes. The data collected
from the responded reveals that members of the ward tribunals do not possess sufficient
210
Cap. 206 R.E 2002 211
Hon chairman Mayeye S.
63
knowledge in land law, in approving the research hypothesis that ward tribunal are inherent
ineffective in solving land disputes, the respondents said that members of ward tribunal some of
them does not know how to read or write and that is why in the decision delivered by ward
tribunal some members have no ability to sign for their own or write their names thereto, instead
they put their thumbprints. The respondent continue that the problem of inability of members of
the Ward Tribunal to write or read has been triggered by the law itself as section 5 (1) of the
Ward Tribunal Act212
which provides for the qualification of members of ward tribunals is silent
on the literacy level of the members of the Ward Tribunals save for the secretary whom the law
requires to be sufficiently literate and capable of satisfactory discharging the duties of
secretary213
.
The above findings therefore approved the Researcher hypothesis that ward tribunals are inherent
infective in solving land disputes, due to its members lack of sufficient knowledge on land law
and lack of training to equity them with fundamental knowledge in law.
4.2 Execution of the Decree of the Ward Tribunal
It is a common practice in law that the court issuing judgment or order has power to execute such
orders. At the Ward Tribunal what has been revealed is different due to the requirement of the
law that Ward Tribunal cannot execute its orders214
. When the researcher posed this question on
whether lack of the Ward Tribunal power to execute its own order or decision turn it infective in
solving land disputes or not, where 49 disputant or claimant met at the ward tribunals during the
visit were consulted.
212
Cap 206 213
Cap 206 214
Section, 16 (3) of Act No. 2. of 2002 Cap 216
64
The data collected from these 49 respondents show 40 respondents which represents 81.6%
answer the question in affirmative, approving the researcher hypothesis that ward tribunal are
inherent inflective in solving land disputes, one respondent from Itiryo Ward Tribunal215
said
that, he was having a land case at Itiryo Ward Tribunal in which on 24th
day July 2017 the Itiryo
Ward Tribunal delivered the judgment in his favor. Then after on 15th
day august 2017 he filed
an application for execution of his decree at District Land and Housing Tribunal at Tarime which
is 79 Kilometer away from Itiryo Ward and to date the application for execution of his decree is
pending at DLHT at Tarime. Cementing on this, another respondent who is an advocate
practicising law at Tarime town216
said that an application for execution of the decree issued by
the Ward Tribunal has to be executed by the DLHT within the locality, he continue to say that in
Tarime district every ward has a ward tribunal and a single District Land and Housing Tribunal
for Tarime with a single chairman serving two districts of Tarime and Rorya districts. In
application for execution, the applicant has to undergo the ordinary court procedure for executing
decree which among the procedure including lodging an application, securing summons and
serving them, attending the session and sometimes finding the Chairman who is a single
presiding chairman adjourning the matter possibly for site visit or illness or for attending other
official duties, all this delay justice for the decree holder and the clear and good intention of
establishing Ward Tribunal in speedy disposal of cases ends unattained217
.
Another respondent who is a decree holder awarded by Pemba Ward Tribunal218
said that she
had won the case since December 2017 and informed by the secretary of Pemba Wad Tribunal
that she has to execute her decree at DLHT. But when she approached the DLHT chairman for
215
Mr. Kitondori Chacha, aged 56 years 216
Mr. Angelius otieno from Amazon Antorneys 217
Ibid 218
Mrs. Rhosa Boniface, a widow aged 70 years
65
execution of her decree the chairman instruct her to fill the application form for execution and
further the DLHT Chairman advice her to seek the assistance of a legal expert on how to make
an application for execution. From the above findings and data the respondents responds that
lack of power of Ward Tribunal to execute its own order turn it ineffective in solving land
disputes. The study further reveals that decree intended to be executed emanates from Swahili
language which is not the language of record at DLHT, The applicant have to engage an expert
in legal matter to fill in the application which is reduced down in English and actual basing on
technical legal jargons and the applicant or decree holder have to pay the filing fee for the
application which at Tarime DLHT is twenty thousands (20,000/=)219
. The respondent who is a
clerk at the DLHT at Tarime in his response is of the opinion that lack of Ward Tribunals power
to execute its own decree or orders led them be ineffective inherent in solving land disputes.
During the study, the Researcher managed to have an entrance to observe the proceeding at
District Land and Housing Tribunal for Tarime where hearing for application for execution were
heard. The Researcher in his observation witnessed an applicant who is a decree holder failed to
argue her application for execution when asked by DLHT chairman to proceed urging her
application, She ends up only replying that her application has been prepared by an advocate in
town and therefore she don‟t know what was written in her application as is written in English
and she doesn‟t know how to read English. Hence for all this justify that lack of Ward Tribunal
power to execute its own orders or decree turn these Ward Tribunals ineffective in solving land
disputes as some of decree holder loss at this stage due cost in preparation of the application for
execution, cost in travelling to District Land and Housing Tribunal which is far away from their
place of residence a part from the Ward Tribunal which is within their area and near them.
219
Mr. Anord, a clerk at Tarime DLHT
66
4.3 The Structure and Composition of Ward Tribunal
The second hypothesis guiding this study was that the structure and composition of Ward
Tribunal makes it incompetent. In order to test this hypothesis the researcher posed a question
intended to solicit respondents opinion on whether or not the structure and composition of ward
tribunal make it incompetent. In testing this, 50 respondents were interviewed, in which the
interviewee consists of District Land and Housing Tribunal Chairman, members of WT
Advocates, and ward tribunal stakeholders (who are ordinary citizens). Out of the above 50
respondents, 40 (80%) respondents agreed with the statement that, the structure and composition
of Ward Tribunals makes it incompetent is solving land disputes, while only 10 (20%)
respondents disagree with the said statement. On the basis of the above findings it is clear to say
that the structure and composition of Ward Tribunal is not competent to enhance it well in
solving land disputes.
This was also echoed by the District Land and Housing Tribunal chairman at Tarime who told
the researcher that the law does not provide that members of Ward Tribunal should possess any
formal education hence doubting their ability to administer land disputes, because land disputes
requires legal knowledge. The chairman of DLHT insisted that the secretary of the Ward
Tribunal should at least hold a certificate in law and train the other members of the Ward
Tribunal on the fundamental principles land law.
A notable weakness as for as qualification of members of Ward Tribunal is concerned is that the
above qualification do not indicate that for one to be a member of the Ward Tribunal, he or she
should at least be literate only the secretary of the Ward Tribunal is required to be literate. This
means that even illiterate persons are eligible for membership and compose the Ward Tribunal.
67
This deficiency is one of the factors that render Ward Tribunals to be incompetent and
ineffective in solving land disputes at the Ward level.
Another respondent an advocate and also a district legal officer at Tarime district council220
told
the researcher that the root cause of the above is that a legal qualified person does not qualify to
be a member of the Ward Tribunal despite the fact that, on determining especially land matters
some legal issues a rise and needed to be determined and laypersons are not well placed to do so.
Hence the Ward Tribunal is composed of legally unqualified person while perform the duty
empowered to them as land court in dealing with land matters. The respondent further opine that
the jurisdiction vested in ward tribunals when dealing with land disputes requires them to be
manned by legally qualified personnel.
Another respondent who is also an advocate practicing law at Tarime town221
told the researcher
that at least the secretary of the tribunal should have legal knowledge for proper keeping of
records and to provide guidance to the other members especially where principles of natural
justice are involved and the interpretation of the laws itself. The respondent further was of the
opinion that a decision made by a non legally qualified member of the tribunal in dispensing
justice, can cause a great miscarriage of justice hence members should be qualified in the field of
law. She further states that section 5 (2) of Ward Tribunal Act222
does not give specific
qualification of the secretary she insist that the law should provide for a qualified secretary who
shall be well conversant it the laws and the legal procedure. From the above response it is
evident that Ward Tribunal being composed of illiterate and non legal qualified personnel turn it
incompetent in solving land disputes.
220
Mr. Alex Ifunya 221
Miss Happiness from Happy Advovates Attorneys 222
Cap 206 R.E 2002
68
The Village Council and Ward Tribunal are subject to the Office of the President, Ministry of
Regional Administrative and Local Government with their independent registrar, while the
DLHT is under the Ministry of Lands, Housing and Settlement Development also with its own
registrar223
. Likewise the High Court and the Court of Appeal are under the judiciary which fall
under the Ministry of Constitution and Legal Affairs. When the researcher asked the DHLT
chairman on whether the structure of this land court in Tanzania render them incompetent in
solving land disputes in Tanzania.
The DLHT Chairman during the interview responds in affirmative and told that, these land
courts set to administer justice on land matters possess an hierarchy which administratively
create a contradictory point on who commands who on the whole process of justice
administration on land matters. For example the respondent insist that the DLHT may not legally
give order to the Ward Tribunal without addressing the same to the registrar of the Ward
Tribunal, the respondent insist that in this land courts, these is no direct responsibility
accommodated to these bodies as it is to ordinary court hierarchy. For example the DLHT
chairman told that at DLHT they used to receive appeals and decree for execution from Ward
Tribunal, but when requires the secretary of these Ward Tribunal to bring the file from Ward
Tribunal to bring the file for the appeal to proceed the secretary does not respond quickly, the
respondent said that there are currently 16 appeals and 12 application for execution which have
not been disposed for 16 months due to the fact that the files from Ward Tribunal have not yet
brought before the DLHT.
223
Section 28 of Act No. 2 of 2002 Cap 216
69
Another respondent who an advocate and solicitor for Tarime Town Council224
said that the
chairman of DLHT refrain from receiving orders from the Registrar of High Court of Tanzania
since not an immediate supervisor of DLHT. The respondent further said that for example in
2016 the registrar of the High Court issued a notice that local government are exempted from
making payment for filing of their cases at the DLHT, but here at Tarime DLHT the chairman
have refrain and still village council having cases before DLHT for Tarime used to pay for the
cost associate in filing their applications.
The chairman of the DLHT for Tarime225
inform the researcher that for the appeal from WT
which their file have been totally failed to be submitted by secretary of the respective Ward
Tribunals on ground such as they have no fare to travelled to DLHT or on other stories that the
files have lost he said that as the Chairman what he do is to rely on judgment and order retrial of
suit at the same ward tribunal. This lead to delay of justice due to the administrative structure of
these Ward Tribunals and hence make them incompetent in solving land disputes.
4.4 Independence of Ward Tribunal as Land Courts
The Ward Tribunal has been accredited by the law the second lowest land court empowered to
enquire into and determine through mediation all land disputes concerning land in the area of
jurisdiction of the district council in which is established.226
As court the Ward Tribunals falls
under the arms of the judiciary. As an organ which dispense justice its members or secretary as
the case may be shall free to decide matters brought before them in accordance with their
assessment of the facts and their understanding of the law without improper influence,
inducement of pressure direct or indirect from any quarter or for any reason. In examining
224
Mr. Tumaini Kigombe 225
Hon. Mayeye S 226
See. S.10 (1) Land Disputes Courts Act, also S. 167 (1) (d) of Land Act, 1999, S. 62 (2) of Village Land Act,
1999 and also S. 3 (2) (b) of Act No. 2 of 2002
70
whether the Ward Tribunal are independent or not when performing their function as land courts
the researcher possed the question to Ward Tribunal members during interview where 94
members from 13 ward tribunals were interviewed. The data collected from the respondents
shows that 74 (78.7%) responds that Ward Tribunal are not independent when dealing with land
matters while 20 respondents (21.3%) responds that Ward Tribunals are independent when
dealing with land matters.
Another respondents under this study who is the chairman of DLHT during interview told the
researcher that Ward Tribunals are not independent as land courts when dealing with land
disputes as the members of the Ward Tribunal are appointed by the Ward Development
Committee chaired by the Ward Councilor, the respondent avers that the ward councilor used to
influence in decision to be reached by the members and members fears to refrain from the
instruction of ward councilor. 13 chairperson from 13 Ward Tribunals who were interviewed by
the researcher seeking their opinion as to whether the Ward Tribunal are independent land
courts. He data collected from these respondents show all 13 respondents 100% said Ward
Tribunals are not independent land court when dealing with land matters while being interviewed
by the researcher, one respondent said at the ward tribunal the Ward Executive Officer and Ward
Councilor used to induce the members of the tribunal to decide in favors of the disputant or
parties whom the WEO and Ward Councilor want to win the case.
Also an advocate prating law at Tarime227
when interviewed said that Ward Tribunal at Tarime
are dissolved at the will of councilors or WEO as they are operating in their offices and therefore
the independence of Ward Tribunals are at risk. The respondent further said that even the way
members are nominated is in line with friends or family members or political party members of
227
Miss Husna, from Amazon Attorney
71
the ward councilor, she opine that Ward Tribunal are not independent as they are subject to
direct control and instruction from Ward Councilor and the WEO.
Further the question of whether the Ward Tribunals are independent or not was also posed to 62
respondents interviewed who were ordinary citizen residing within these ward tribunal. In which
42 respondents responds that ward tribunals are not independent and only 20 respondents who
responds that WT are independents , for the respondents who said that Ward Tribunal are not
independent alleges that members of ward tribunal are immorally as they used to reach decision
in favors of those who give them bribe.
One respondent who is a public prosecutor for PCCB at Tarime228
when interviewed said that
some members at the ward tribunal are not moral persons, the respondent goes further informing
the researcher that there is 7 corruptions criminal case pending at Tarime district court involving
ward Tribunal members from Susuni Ward, Bukwe Ward, Nyaburongo Ward, Mbogi Ward,
Goribe Ward and Turwa Ward . Hence from the above findings, it therefore approves that Ward
Tribunals are not independent land courts in solving land disputes.
4.5 Nature of Land Disputes Handle by Ward Tribunals
The study reveals various types of land disputes that are present in Ward Tribunal at Tarime the
main one being ownership of land, boundaries trespass, and encroachment.
4.5.1 Ownership of Land
This arises when two or more people claim the ownership over the same piece of land and each
claiming to be the rightful owner. This leads to land disputes between the parties concerned.
228
Mr. Mwinyi Athuman
72
During the study the researcher was informed by ward secretary of Pemba Ward Tribunal229
that
at Pemba Ward Tribunal in the year 2017/2018 they have registered 36 complains from disputant
claiming ownership of land. The respondent alleges that 28 complains out of 36 lay on
inheritated land in which the complaints are widows or sons of the deceased owner of land. This
also was revealed at Mbogi Ward Tribunal in which the Ward secretary230
told the researcher
that since he become the secretary of the tribunal from march 2017 to date the tribunal has
registered 34 complains on land ownership though there exist other disputes but he insist that
those of land ownership are greater in his tribunal compared to other like trespass and
encroachment which he mention to be 27 in his register.
4.5.2 Trespass
Trespass is entering one‟s land without his permission. This arise most out of boundary
encroachment due to unclear boundaries of the individual farms and villages and greediness of
some people231
. The chairman of Susuni Ward Tribunal when interviewed contends that trespass
is quite often seasonal in nature for village land in some incidence due to unclear boundary
marks at Susuni Ward one may trespass into another person land. He informed the researcher
that at his tribunal for the year 2017/2018 these were 12 registered disputes on trespass of land at
Susuni Ward Tribunal.
4.5.3 Encroachment
This is where one party takes a portion or whole of the land belonging to another and the later
realizes that his/her land has been taken upon realization that his/ her land has been encroached,
then there arise a land disputes between the parties. During the visit to Gwitiro Ward Tribunal
229
Mr. Nchagwa Tingo 230
Makuri Mwamba 231
Mwita Kebwe ward Tribunal Charman at Susuni ward
73
the researcher observe disputant one Elia Monanka claiming at the tribunal that his land has been
encroached by Mr. Machenes Otaigo who is his neighbor, the ward secretary at Gwitiryo Ward
Tribunal232
told that disputes of land encroachment are few where he said that in 2017/2018 he
has registered only 9 dispute on encroachment compared to others like trespass, boundary and
ownership which are 11, 20 and 14 respectively.
4.5.4 Boundary
This emerges where there is unclear demarcation or marks on the lands of parties, hence lead to a
dispute between the two on boundaries. In this study all the 13 Ward Tribunal visited reported to
have registered boundary dispute, where highest being registered at Regicheli Ward Tribunal
with 33 boundary disputes followed by Sirari 30, Mwema 30,Susuni with 29 boundary disputes,
Itiryoo, 27, Pemba 25, Gwitoryo 20, Nyamwenga 13, Nyakonga12, Mbogi 10,Komaswa
10,Nyamichale 8 and Nyansincha 8 for the year 2017/2018.
From the above findings it revealed that boundary conflicts were the leading followed by claims
on land ownership by disputants having land in Tarime district.
4.6 Cause of Land Disputes in Tarime Ward Tribunal
The main causes of land disputes that have been revealed during this study were attributed by
factors which includes population increase, increase of value of land, unclear boundaries and
delay and low compensation payment.
232
Marwa Phares
74
4.6.1 Population increase
The respondents interviewed during the study told that increase population, increase the demands
for land although land is fixed in supply. With the fixed supply of land and the high demands for
independent use people compete for land and there result in conflict.
4.6.2 Increase in Land values
In the study the researcher during interviewed with the Ward Tribunal members, villagers and
land officers at Tarime wants to know the value of land at Tarime, where the responses from the
respondents show that the value of a one acre of land situated at the village is between two
million to two million five hundred thousand shillings (Tsh2,000,000/= to Tsh 2,500,000/=).
This shows that most sources of land conflicts have to do with value of land. Interviewing one
land value at Tarime district council233
said that before 1995, land had no value and only an
exhausted improvement on the land such as crops, buildings were having value but not land
itself. He continue to say that in 1995 the land policy declared land to have (value at market
price). Where he insist that today in acquiring land one has to be compensated on what is on the
land and the land itself depending on its location and its economic value as this is recognized by
both policy and law in Tanzania all these have increases the value or market price of land and
demand for land, hence causing land disputes.
4.6.3 Unclear boundaries
Unclear boundaries are the cause of conflict particularly in Tarime wards, during the study it has
been revealed that in all 13 ward tribunal visited, boundary conflict was disclosed by the ward
secretary in each respective ward tribunal. In these tribunals the study reveal that land is
unsurvey and normally do not have clear marks to show demarcation of land and this led to land
233
Modest Liberatus
75
disputes. In the field of study the villagers at Remagwe village with in Regicheli Ward inform
the researcher that they indicate their boundaries with land marks such as stones, Sisal, and trees,
where after sometime these marks get destroyed or transferred and it results in boundary
disputes.
4.6.4 Delay and low compensation payment
During the study the issue of compensation, arise as the cause of land disputes. This has revealed
by members of Komaswa Ward Tribunal when interviewed they said that at their tribunal there
are complains made by villagers each claims individual over his/her a piece of land that have
been taken by the District Council for building of sugar factory at Komaswa Ward. Interviewing
the District legal officer, said that the law requires that whenever land is acquired the acquiring
body has to pay full, fair and prompt compensation to the person whose land has been acquired.
4.7 Conclusion
Before doing this research the Researcher had formed two hypotheses. The collected data in this
chapter shows that the two hypotheses are true. The study revealed that Ward Tribunals are not
dispensing justice effectively as were intended due to their governance. Therefore, it is the
finding of this study that Ward Tribunal are not effective in solving land disputes.
However the study observe that, though faced with several challenges, the Ward Tribunal have
not been without important achievement, if the shortcoming analysed above can be sorted out,
the establishment of these Ward Tribunal will met with considerable enthusian and their
performance on the whole.
76
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.0 Introduction
This chapter provides a conclusion and recommendation basing on the research findings. The
conclusion herein is based on the data collected and the analysis done followed by
recommendation as per the approved hypotheses, approved in the affirmative and see whether
the objectives of this research have been met.
The recommendation will basically aim to bring about law reform as the approved hypotheses
have proved Ward Tribunals are no longer effective in solving land disputes. Here under in the
conclusion and recommendation of the research.
5.1 Conclusion
The objective of this study were three, the first was to examine and assess the reasons for
inefficiency of ward tribunal in solving land disputes, in tandem with the first hypothesis which
is Ward Tribunal are inherent ineffective in solving land disputes. The finding of this research
have revealed that Ward Tribunals are staffed with incompetent personnel made up of laymen
who did not posses any legal knowledge to enable them to dispense justice when solving land
matters. All the responses obtains from the respondents draw a conclusion that the member of the
Ward Tribunal lack sufficient knowledge on land and training to equip them with fundamental
knowledge in law. Even the secretary who the law provides to be literate and educated but still
the same law is silent on the literacy level of the secretary.
77
The study also reveals that lack of the Ward Tribunal power to execute its own order delays the
rights of the decree holder and render to them unnecessary costs such as travelling fare and filing
fees for their application for execution at the DLHT.
The second hypothesis was that, the structure and composition of Ward Tribunal makes it
incompetent in which 80% of the respondents support this statement. Also the responses from
the DLHT Chairman and those of the advocate practicing law at Tarime shows that the law
prohibit a legal qualified person to be a member of the Ward Tribunal and in the determination
of land matter, some legal issues arise which needs to be determined by legal person and not
unqualified legal personnel, hence the Ward Tribunal being composed of unqualified legal
personnel render it incompetent in solving land disputes.
The study further shows that Ward Tribunal are not independent when solving land disputes as
land courts, they are subject to instruction and in control of the WEO and the Ward Councilor.
Also the members of the society interviewed complained that Ward Tribunal justice system is
unfair, not trustworthy and corrupt and its members lack expertise in technical aspects of land
issues. Other citizens complained that Ward Tribunal charge exorbitant fees for site inspection
and un determining costs for printing, allowances for sitting and services of summons to these
other parties involved in the disputes.
In conclusion the findings of this research reveal that Ward Tribunals are incompetent and
ineffective inherent in solving land disputes.
78
5.2 Recommendations
Based on the findings the study made the following recommendation to the government of
Tanzania in general;
5.2.1 Payment of Salaries to Members of the Ward Tribunal.
That the members of ward tribunal shall be paid for their work, since they are working to
determine the right of people they have to be paid properly as other court personnel and such
payment should be adequate to their responsibilities in order to get rid of temptation to bribery
and corruption.
5.2.2 Allocation of Fund in the Government Budget
The government should allocate funds for functioning of ward tribunal in delivering services to
the public. This would help in delivery of justice in time and fairly as the Ward Tribunal as land
court will not be interfered with other organs of the government.
5.2.3 Continuous Training, Seminar and Supervision
The Ministry of State President Office, Regional Administration and Local Government should
introduce and maintain attributes such as training to Ward Tribunal members and secretaries and
provides good working environment since they seemed to be the strong motivation that may
attract tribunal members and secretaries to work hard toward fair and timely decision making.
The local government authorities where the Ward Tribunals are located also find ways and
means of making sure that appointment of Ward Tribunal members are well supervised so that
right people can be appointed and taking care of recruitment of ward secretaries and making
sure that their employment is well taken care of, this will enable them to have a high spirit of
79
working and reduce incidences of corruption and make sure that there is sensitization of public
in general about Ward Tribunal as land courts in order to achieve the goals of its establishment.
5.2.4Amendments of the Law Regulating Ward Tribunals
The legal reform commission should check on the current law regulating ward tribunals whether
they are proper. When the land courts were established from village level, there were no
procedural laws which were enacted save for the DLHT, the Ward Tribunals continued to use the
Ward Tribunal Act, 1985, which was revised in 2010, the revised version, the Ward Tribunal
Act, Cap 206,R;E 2002, revised mainly the role of the appropriate authorities in relation to the
tribunal under the provision of section 6(1),(2) and (3). Therefore for Ward Tribunals to operate
well and in just manner evidence rules and civil procedure for Ward Tribunals should be enacted
for effective functioning of Ward Tribunals.
5.2.5 All Land Court to Report to the Judiciary
Channel all land disputes institution to report in the judiciary and control them. As per the
provision of the law regulating land, land courts have been established, among them being those
under section 62, S. 167 and S.3234
. But the court each reports into different organs, for example
VLC and WT reports to the Ministry of Regional Administration and Local Government, DHLT
administratively reports to Ministry of Land and Housing, while the High Court (Land Division)
and the Court of Appeal form part and parcel of the judiciary as they reports to Chief Justice who
is the head of judiciary.
234
VLA cap 114, LA Cap 113, and Land Disputes Court Act respectively
80
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83
APPENDIX I
84
APPENDIX II
85
APPENDEX III
QUESTIONAIRE TO MEMBERS OF WARD TRIBUNAL WITHIN TARIME
DISTRICT
Maswali haya yameandaliwa na mwanafunzi wa Shahada ya uzamili wa sheria katika Chuo
Kikuu cha Saut ili kupata taarifa zinazoweza kusaidia kufahamu ufanisi wa mabaraza ya kata
katika kutatua migogoro ya ardhi.
SEHEMU A: DODOSO LA WAJUMBE WA BARAZA LA KATA WILAYA YA
TARIME
Tafadhali toa taarifa sahihi kwa kadri ya uelewa wako
Baraza la kaya ………………………………………………………………………………
Katika Halmashauri ya ………………………………………………………………
Wilaya ya …………………………………………………………………………….
Mkoa wa ………………………………………………………………………..
(weka tiki ( ) kwa jibu la ndiyo au hapana)
1. Jina lako ……………………………………………………………………………………
2. Taja nafasi yako katika baraza la ………………………………………(mwenyekiti,
katibu, mjumbe)
3. Je una kiwango gani cha elimu……………………………………………
4. Una muda gani toka upate nafasi uliyonayo kwenye baraza………………………
5. Je umepata mafunzo toka uwe(mjumbe, katibu , mwenyekiti wa baraza…………………
6. Je mafunzo uliyopata yamekuwezesha kupata ujuzi wa kutosha kutatua migogoro ya
ardhi?
Ndio ……………………………..hapana ……………………………..
86
Kama jibu hapo juu ni hapana zitaje sababu kwanini ujuzi huo hutoshi
i) …………………………………………..
ii) ……………………………………………..
iii) …………………………………………….
iv) ……………………………………………
7. Je, unadhani baraza la kata lina ufanisi linapokuwa linatatua migogoro ya ardhi ?
Ndiyo ………………………………………………hapana……………………………
Kama jibu hapo juu ni hapana eleza sababu
i) …………………………………………………..
ii) ………………………………………………..
iii) ………………………………………………..
iv) ………………………………………………
8. Je baraza la kata liko huru linapokuwa linaendesha mashauri ya madai ya ardhi pasipo
kuuingiliwa na mtu au chombo chochote kile?
Ndiyo ………………………………………………hapana……………………………
Kama jibu hapo juu ni hapana eleza sababu
i) …………………………………………………..
ii) ………………………………………………..
iii) ………………………………………………..
iv) ………………………………………………
9. Kwa wiki mnakutana mara ngapi kwa ajili ya vikao vya baraza………………………..
Asante sana kwa ushirikiano
87
APPENDEX IV
QUESTIONNAIRE TO CHAIRMAN OF DLHT
These questions have l prepared by a masters of law student at St. Augustine University of
Tanzania - SAUT with the aim of collecting information to know the effectiveness of
ward tribunal in solving land disputes.
1. (a) Name of Chairman____________________________________
(b) Name of DLHT _____________________________________
2. Do members of Ward tribunals posses the necessary knowledge in land matters?
Yes No (put a tick where appropriate)
Please briefly explain your answer in the above.
i) ………………………………………………………………………
ii) …………………………………………………………………….
iii) …………………………………………………………………….
3. Are the decision rendered by ward tribunals in accordance with the law regulating
land matters? Yes No (put a tick where appropriate) Give reasons
for your answer in the above question
i) ………………………………………………………………………
ii) …………………………………………………………………….
iii) …………………………………………………………………….
iv) …………………………………………………………………….
v) ……………………………………………………………………
4. In calling the records of Ward Tribunal, did the ward tribunal secretary respond
quickly?
Yes _____________________ No__________________( Put a tick where appropriate)
Please briefly explain your answer in the above question
i) ………………………………………………………………………………
ii) ………………………………………………………………………………
iii) ………………………………………………………………………………
iv) ……………………………………………………………………………….
88
5. Is there pending appeal or application for execution from ward tribunal which
are indisposed as their respective files from ward tribunals are not yet brought to
DLHT?
Yes No (put a tick where appropriate)
In the above, if your answer is Yes, what is the legal remedy for such situation.
Thank you for cooperation
89
APPENDEX V
QUESTIONNAIRE TO ORDINARY CITIZENS STAKEHOLDERS OF WARD
TRIBUNALS WITHIN TARIME DISTRICT
Maswali haya yameandaliwa na mwanafunzi wa shahada ya uzamili wa sheria katika chuo
kikuu cha Mtakatifu Agostino Tanzania ili kupata taarifa zinazoweza kusaidia kufahamu kama
mabaraza ya kata yana ujamisi katika kuweza kutatua migogoro ya ardhi.
Tafadhali toa taariga sahihi kwa kadri ya uelewa wako
Baraza la kata ………………………….katika halmashauri ya (wilaya /mji) wilaya ya ………
1. Jina lako…………………………………………………
2. Taja nafasi yako katika baraza ni (mlalamikaji/mlalamikiwa/mdau tu)
3. Je, unadhani wajumbe wa baraza la kata wana uelewa wa kutosha kuhusu sheria ya ardhi
…………….(ndiyo/Hapana)
4. Je unadhani muuundo wa mabaraza ya kata viko sawa………………(ndiyo/hapana)
5. Je , unaridhika na namna mabaraza ya kata yanashughulikia migogoro ya ardhi?...
(ndiyo/hapana)
6. Je unadhani mabaraza ya kata yako huru yanapokaa kusikiliza na kutatua migogoro ya
ardhi…………….(ndiyo/hapana).
90
APPENDEX VI
INTERVIEW GUIDE
SEHEMU A: KWA WANANCHI WA KAWAIDA
1. Je, umewahi kuwa na lalamiko la ardhi katika baraza la kata?
2. Je, unadhani wajumbe wa baraza la kata wana uelewa wa kutosha kuhusu sheria za ardhi?
3. Je kwa uelewa wako mabaraza ya kata yako huru yanapokaa kusikiliza na kutatua migogoro
ya ardhi.
4. Je unadhani muundo wa mabaraza ya kata uko sawa?
SEHEMU B: KWA WAJUMBE WA BARAZA LA KATA
1. Je ni migogoro ya aina gani ardhi huwa mnaipokea kwenye baraza la kata?
2. Je. Mnapokuwa mnaendesha mashauri ya ardhi mpo huru pasipo kuingiliwa na chombo au
mtu yoyote?
PART C: TO DLHT CHAIRMAN
1. What are challenges DLHT faces on application or appeals from WT.
2. Are the WT Members independents?
3. Do members of Ward Tribunal possess knowledge in land laws.
4. In your opinion will WT continue to solve land disputes as land court?
5. Do DLHT have administrative power over WT?
6. What are the roles of DLHT over the WT?
PART D: TO ADVOCATES PRICTISING LAND LAW
1. Do members of Ward Tribunal possess knowledge in land law?
2. Did the aim of establishing Ward tribunal as land court achieved?
3. Are Ward Tribunals independent when presiding over land matters?
4. What are the various types of land disputes in the district and the reason for the conflicts?
PART E: TO LAND EXPERTS/ LAND OFFICERS
1. In which areas in the district are land disputes prominent?
2. What are the various types of land disputes in the district?
3. What are the reasons for the land disputes?
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