CIVIL PROCEDURE 1

How Land disputes are resolved in Tanzania

BY KARIM MUSSA

Conceptual Definition

Land dispute can be defined as a social fact in which at least two parties are involved, the roots
of which are different interests over the property rights to land: the right to use the land, to
manage the land, to generate an income from the land, to exclude others from the land, to
transfer it and the right to compensation for it. A land conflict, therefore, can be understood as a
misuse, restriction or dispute over property rights to land.1

PROCEDURES FOR INSTITUTING LAND DISPUTES AND THE FORUMS (COURTS)

OF ADJUDICATION

The Village Council References of disputes from council to Court2: The following courts are
hereby vested with exclusive jurisdiction, to hear and determine all manner of disputes, actions
and proceedings concerning land3 that is to say–

 The Court of Appeal;

 The High Court (Land Division);
 The District Land and Housing Tribunal;
 The Ward Tribunal; and
 The Village Land Council.

Composition of Village Land Council

The Council shall be composed of seven members of whom three shall be Women and all must
be approved by the Village Assembly4. Functions of the Village Land Council is receiving
complaints from parties in respect of land;
1
Wehrmann, B. (2008). Land conflicts a practical guide to dealing with land disputes.
Deu. Tsche Gesellschaftfür Technische Zusammenar be it (GTZ) Eschborn,
Germany.
2
The Village Land Act, Cap 114 Re 2002, Sec 62(2)
3
The Land Act, Cap 113 Re 2013, Part XIII
  Convening meetings for the hearing of disputes from parties; and
 Mediating between and assist parties to arrive at a mutually acceptable settlement of the
disputes on any matter concerning land within its area of jurisdiction.

Where the parties are not satisfied with the decision

Where the parties to the dispute before the Village Land Council are not satisfied with the
decision of the Council, the dispute in question shall be referred to the Ward Tribunal. As
according to5.

The Ward Tribunal (Land Disputes Courts Act CAP 216) Institution of land disputes:
Every dispute or complaint concerning land shall be instituted in the Court having jurisdiction to
determine land disputes in a given area6.

Composition of Ward Tribunal

Each Tribunal shall consist of not less than four nor more than eight members of whom three
shall be women who shall be elected by a Ward Committee7.

The Jurisdiction of the Tribunal shall in all proceedings of a civil nature relating to land be
limited to the disputed land or property valued at three million shillings. Pecuniary Jurisdiction8

Powers of The Tribunal

 Order the recovery of possession of land;

 Order the specific performance of any contract;
 Make orders in the nature of an injunction both mandatory and prohibitive;
 Award any amount claimed;
 Award compensation;
 Order the payment of any costs and expenses incurred by a Successful party or his
witnesses; or

4
(S.5 (1) of the Land Disputes Courts Act Cap 216).
5
(S.9 of the Land Disputes Courts Act Cap 216).
6
S.62(1) of the Village Land Act Cap 114
7
(S.11 of the Land Disputes Courts Act Cap 216)
8
(S.15 of the Land Disputes Courts Act Cap 216).
  Make any other order, which the justice of the case may require.

Institution of Complaint to Ward Tribunal

When a complaint is made to the Secretary, that Secretary shall cause it to be submitted to the
Chairman of the Tribunal who shall immediately select three members of the Tribunal to
mediate. Where the complaint is received orally from the complainant, the Secretary shall
immediately put it in writing and produce a copy for the complainant.

Appearance by Advocate Prohibited

No advocate as such may appear and act for any party in a Ward Tribunal. The Ward Tribunal
may permit any relative or any member of the household of any part to any proceeding, upon
request of such party to appear and act for such party.

Also a Ward Tribunal in any proceeding to which a body corporate is a party may authorize its
director, secretary, member or a person in the employment of the body corporate to appear on
behalf, other than an advocate.

Appeals from Ward Tribunal

A person aggrieved by an order or decision of the Ward Tribunal may appeal to the District Land
and Housing Tribunal. Time for Appeal9.

Every appeal to a District Land and Housing Tribunal shall be filed in the District Land and
Housing Tribunal within forty-five days after the date of the decision or order against which the
appeal is brought.

The District Land and Housing Tribunal may for good and sufficient cause extend the time for
filing and appeal either before or after the expiration of forty-five days.

And where an appeal is made to the District Land and Housing Tribunal within the said period of
forty days, or any extension of time granted, the District Land and Housing Tribunal shall hear
and determine the appeal.

9
(S.20 of the Land Disputes Courts Act Cap 216)
The District Land and Housing Tribunal

Establishment of the District Land and Housing Tribunal. The Minister shall establish in each
district, region or zone, as the case may be, a court to be known as the District Land and Housing
Tribunal. The Court established shall exercise jurisdiction within the District, Region or Zone in
which it is established10.

Pecuniary Jurisdiction of the District Land and Housing Tribunal

In proceedings for the recovery of possession of immovable property, to proceedings in which

the value of the property does not exceed 300 million shillings; and in other proceedings where
the subject matter is capable of being estimated at a money value, to proceedings in which the
value of the subject matter does not exceed 200 million shillings11.

Hearing and Powers of District land and Housing Tribunal

The District Land and Housing Tribunals entertain fresh cases and appeals from the Ward
Tribunal. They have their Original Jurisdiction, Appellant Jurisdiction, and Revision Jurisdiction
and also they have powers to review their own decisions12.

PROCEDURES FOR HANDLING DISPUTES IN District Land and Housing Tribunal

Applications, summons and service

Outline

 Filing an Application.
 Issue of Summons
 Service of Summons

10
S.22 of the Land Disputes Courts Act Cap 216
11
Land Disputes Courts Act Cap 216 s.33 (2) (a)
12
(S.33 (1), 34, 35 & 36 of the Land Disputes Courts Act Cap 216
Filing an Application

Any proceedings before the Tribunal shall be commenced by an application filed by an applicant
or his representative through payment of appropriate fees prescribed in the first schedule of these
Regulations13.

An application to the Tribunal shall be made in the form prescribed in the Second Schedule to
these Regulations and shall contain the following:-

 The names and addresses of the parties involved.

 The addresses of the suit premises or location of the Land involved in the dispute to
which the application relates.
 Nature of disputes and cause of action.
 Estimated value of the subject matter of the dispute.
 Relief sought.
 Amount of rent if the dispute involves payment of rent.

The application form may be obtained from the Registry or sub-registry of the Tribunal by the
applicant or his representative upon payment of prescribed fees.

Thus where there is an emergence or any dangerous situation on the part of the Applicant or
which threatens the Applicant. It needs the Applicant to prepare APPLICATION, CHAMBER
SUMMONS and AFFIDAVIT.

Issue of Summons

Where an application is made to the Tribunal, the Tribunal may issue summons to the
Respondent, informing him on the time, place, and date where the Application will be
mentioned14.

13
(Rule 3(1) of Land Disputes Courts Regulation, 2003).
14
(Rule.5 (1) of Land Disputes Courts Regulation)
Service of Summons

In effecting service of summons, a copy of Application or chamber application if any shall be

attached to every summons to be served upon a party to the Application. Service of summons
shall be effected by the process server15.

SUBMISSION OF WRITTEN STATEMENT OF DEFENCE, COUNTER AFFIDAVIT

AND COUNTER CLAIM.

Written Statement of Defense.

Upon being served with copy of the Application, the Respondent shall file his written statement
of defense in response to the Application within 21 days of service upon payment of prescribed
fees16.

Counter Affidavit

Where there is Chamber summons, the Respondent shall file his Counter affidavit in response to
an affidavit supporting Chamber summons within 7 days of service upon payment of prescribed
fees17.

Counter Claim

Where the written statement of defense contains counter claim, the Tribunal shall serve the
Applicant with a copy of Counter claim, and the Applicant within 21 days of service shall file
written statement of defense on the Counter claim18.

Extension of time

The Chairman on a good cause shown by any party, may extend time within which to file written
statement of defense in time not exceeding 14 days and for Counter Affidavit not exceeding 7
days.

15
(Rule.6 (1) and (2) of Land Disputes Courts Regulation)
16
(Rule.7 (1) (a) of Land Disputes Courts Regulation, 2003)
17
(Rule.7 (1) (b) of Land Disputes Courts Regulation, 2003).
18
(Rule.7 (2) of Land Disputes Courts Regulation, 2003).
Fixing the Date of Hearing

Where the written statement of defense or Counter affidavit has been filed in any proceedings,
the Chairman shall proceed to fix a hearing date for application or chamber application and no
further pleadings shall be entertained19

Notice of date of hearing.

Where the hearing date is fixed in the presence of parties or their representatives, the Tribunal
shall constitute the notice of date of hearing. And in the absence of the parties or their
representative, the Tribunal shall cause the notice of date of hearing to be served upon the parties
or their representatives20.

Receiving Material Documents

At first hearing, the Tribunal may receive documents which were not annexed to the pleadings at
first, without necessarily follow the procedure under Civil Procedure Code or the Evidence
Act21.

The Tribunal may allow at any stage of proceeding to produce any material documents which
were not produced earlier at the first hearing before conclusion of hearing22.

PROCEDURE FOR HEARING AND JUDGEMENT

Proceed Hearing.

The Tribunal shall proceed to hear the evidences on both sides and determine the application
where both parties are present23.

19
(Rule.8 (1) of Land Disputes Courts Regulation, 2003).
20
(Rule.8 (2) (a) & (b) of Land Disputes Courts Regulation, 2003).
21
(Rule.10 (1) of Land Disputes Courts Regulation, 2003).
22
(Rule.10 (2) of Land Disputes Courts Regulation, 2003).
23
(Rule .11 (1) (a) of Land Disputes Courts Regulation, 2003).
Where Applicant is absent

Where the applicant is absent without good cause and had received notice of hearing or was
present when the hearing date was fixed. The Chairman will dismiss the application for non-
appearance of applicant24.

Where Respondent is absent

Where the Respondent is absent without a good cause and had received notice of hearing or was
present when the hearing date was fixed, the Tribunal will proceed to hear the matter exparte and
determine the matter25.

Read the Application for Respondent

At the date of hearing, the Chairman shall read and explain the contents of the Application to the
Respondent to either admit or deny the claim26.

Where the Respondent has admitted the claim, the Tribunal shall record his words and proceed to
make orders as it thinks fit. And where Respondent does not admit the claim or part of the claim,
lead to the parties with their advocates if any to frame the issues.

Evidences and submissions

Parties or their advocates may call their witnesses during the hearing as may be required by the
Tribunal, and make final submissions either orally or in written form as the Tribunal may direct.
27

Judgment

After receiving evidences and submissions, the Tribunal may pronounce judgment on the spot or
reserve judgment to be pronounced later. Provided that the judgment shall not be reserved for a
period of three months from the date of conclusion of the proceedings28.

24
(R.11 (1) (b) of Land Disputes Courts Regulation, 2003).

25
(Rule.11 (1) (c) of Land Disputes Courts Regulation, 2003).
26
(Rule. 12 (1) & (2) of Land Disputes Courts Regulation, 2003).
27
(Rule.14 of Land Disputes Courts Regulation, 2003)
Contents of Judgment

The judgment of the Tribunal shall be short, written in simple language and shall consist of:-

 A brief statement of facts

 Findings on the issues
 A decision
 Reasons for the decision

The Chairman shall issue a decree immediately after the judgment.

PROCEDURE FOR APPEAL TO AND IN THE COURT OF APPEAL OF TANZANIA.

TYPES OF APPEAL TO THE COURT OF APPEAL

 An Automatic right of Appeal to Court of Appeal.

This happens when the High Court exercises its Original jurisdiction in the normal civil cases,
here no need for aggrieved party to seek for a leave from the High Court in order to appeal to the
Court of Appeal. The Court of Appeal shall have jurisdiction to hear and determine appeals from
the High Court and from subordinate courts with extended jurisdiction29.

 An Appeal which must seek leave from the High Court.

This is when the High Court exercises its appellate jurisdiction in the normal civil cases for the
cases originated from the District Court, here the aggrieved party must seek leave in order to
appeal to the Court of Appeal30. In civil proceedings, except where any other written law for the
time being in force provides otherwise, an appeal shall lie to the Court of Appeal with the leave
of the High Court or of the Court of Appeal, against every other decree, order, judgment,
decision or finding of the High Court.

28
(Rule.19 (1) of Land Disputes Courts Regulation, 2003).
29
Appellate jurisdiction act cap 141. S.4.-(1)
30
The appellate jurisdiction act cap 141. S.5.-(1)(c)
  An Appeal which must seek Certificate of Point of Law from the High court.

This is when the High Court exercises its appellate jurisdiction in the normal civil cases for the
cases originated from the Primary Court, here the aggrieved party must seek for a certificate of
point of Law from the High Court in order to appeal to the Court of Appeal31. In civil
proceedings, except where any other written law for the time being in force provides otherwise,
no appeal shall lie against any decision or order of the High Court in any proceedings part III of
the Magistrates' Courts Act unless the High Court certifies that a point of law is involved in the
decision or order;

As provided under “Where an application for a certificate or for leave is necessary, it shall be
made after the notice of appeal is lodged32”

When an appeal lies only with leave or on a certificate that a point of law is involved, it shall not
be necessary to obtain the leave or the certificate before lodging the notice of appeal 33.

“Every application to the Court made under this Code shall, unless otherwise provided, be made
by a chamber summons supported by affidavit34.”

EXCEPTION

Except in the Land matters, whereby there must be a seek for a leave for the matter from the
District Land and Housing Tribunal and seek for a certificate of point of law from the High
Court (Land Division) for the matter from the Ward Tribunal, regardless the High Court (Land
Division) exercises its original or appellate jurisdiction.

Any person who is aggrieved by the decision of the High Court (Land Division) in the exercise
of its original, revisional or appellate jurisdiction, may with the leave from the High Court (Land
Division) appeal to the Court of Appeal in accordance with the Appellate Jurisdiction Act35.

31
The appellate jurisdiction act cap 141. S.5.-(2) (c)
32
Court of appeal rules, 2009 rule-46(1)
33
Court of appeal rules, 2009 rule-83(4)
34
The civil procedure code cap 33, order xliii rule 2
35
The land disputes courts act cap 216. S.47. (1)
Where an appeal to the Court of Appeal originates from the Ward Tribunal the appellant shall be
required to seek for the Certificate from the High Court (Land Division) certifying that there is
point of law involved in the appeal.

PLACE AND TIME FOR LODGING AN APPLICATION.

Place and time for lodging the application are; “Whenever application may be made either to the
Court or to the High Court, it shall in the first instance be made to the High Court or tribunal as
the case may be.....36” AND

“Where an appeal lies with the leave of the High Court, application for leave may be made
informally, when the decision against which it is desired to appeal is given, or by chamber
summons according to the practice of the High Court, within fourteen days of the decision”

Common grounds for Appeal to Court of Appeal:-

 Grounds that raise issue of general importance

 Grounds that show the prima facie
 Grounds that show the reasonable chances of success.
 Grounds that show the proceedings reflect obvious fault.

SUITABLE PROVISIONS TO MOVE THE COURT FOR APPEAL TO THE COURT OF

APPEAL.

The Court has to be moved properly by citing relevant and proper provisions such as:-

a) An Application for a leave to the High Court, the proper provision to move the Court is
provided;-

“In civil proceedings, except where any other written law for the time being in force provides
otherwise, an appeal shall lie to the Court of Appeal with the leave of the High Court or of the

36
Court of appeal rules, 2009. Rule-47
Court of Appeal, against every other decree, order, judgment, decision or finding of the High
Court37.”

b) An Application for a leave to the High Court (Land Division), the proper provision to move
the Court is provided;-

Under THE LAND DISPUTES COURTS ACT, CAP 216. s.47. (1) “Any person who is
aggrieved by the decision of the High Court (Land Division) in the exercise of its original,
revisional or appellate jurisdiction, may with the leave from the High Court (Land Division)
appeal to the Court of Appeal in accordance with the Appellate Jurisdiction Act.”

c) An Application for a leave to the Court of Appeal whether for the Land matters or other civil
matters after being rejected by the High Court, the suitable and relevant provision to move the
Court is provided;-

“In civil proceedings, except where any other written law for the time being in force provides
otherwise, an appeal shall lie to the Court of Appeal with the leave of the High Court or of the
Court of Appeal, against every other decree, order, judgment, decision or finding of the High
Court38.”

d) An Application for a Certificate of point of law to the High Court for the matter originated
from the Primary Court. The suitable provision to move the Court is provided;-

“No appeal shall lie against any decision or order of the High Court in any proceedings, unless
the High Court certifies that a point of law is involved in the decision or order39.”

e) An Application for a Certificate of point of law to the High Court (Land Division) for the
matter originated from the Ward Tribunal. The suitable provision to move the Court is provided;-

37
The appellate jurisdiction act, cap 141. S.5.-(1)(c)
38
The appellate jurisdiction act, cap 141. S.5(1)(c)
39
The appellate jurisdiction act, cap 141. S.5 (2) (c)
“Where an appeal to the Court of Appeal originates from the Ward Tribunal, the appellant shall
be required to seek for the Certificate from the High Court (Land Division) certifying that there
is point of law involved in the appeal40.”

CONCLUSION

The efforts employed by the Government to make sure that land disputes are settled through
right machineries are highly appreciated. However, I am at one with what Mwalimu Nyerere
once said at his first inaugural Address to the Parliament in 1962 which among other things,
emphasized that we cannot hope to solve our problems by pretending that they do not exist.

40
The land disputes courts act, cap 216. 47.(2)
 REFFERENCES

BOOKS

Wehrmann, B. (2008). Land conflicts a practical guide to dealing with land disputes. Deu. Tsche
Gesellschaftfür Technische Zusammenar be it (GTZ) Eschborn, Germany.

STATUTES

The Village Land Act, Cap 114 Re 2002

The Land Act, Cap 113 Re 2013

The appellate jurisdiction act cap 141

Court of appeal rules, 2009

The civil procedure code cap 33 R.E 2002

The Land Disputes Courts Act Cap 216)

The Land Disputes Courts Regulation, (2003)

CASE LAWS

John mtawali vs Tatu said Kuumba, Misc: land App No 19/2006, High court of Tanzania main
Registry