Hon. Attorney General (Appellant) v. Lohay Aknonaay, Joseph Lohay (Respondent)

The respondents, a father and son living in the village of Kambi ya Simba in the Arusha region successfully sued for recovery of land held under customary law. However, while an appeal was pending a new law was passed declaring the extinction of customary rights in land, and prohibiting the payment of compensation for such extinction. The legislation purported to oust the jurisdiction of the court, and to terminate all proceedings in the courts, prohibiting enforcement orders from the courts. The respondents petitioned under the Constitution for a declaration that the new law was unconstitutional, null and void. Article 24 of the Constitution of the United Republic of Tanzania recognizes the right of every person in Tanzania to acquire and own property and to have such property protected. Sub-article (2) of that provision prohibits the forfeiture or expropriation of such property without fair compensation. The Attorney general contended that a “right of occupancy” which included customary rights in land as defined under section 2 of the Land Ordinance, Cap 113 of the Revised Laws of Tanzania Mainland, was not property within the meaning of Article 24 of the Constitution and was therefore not protected by the Constitution. The court came to the conclusion that customary or deemed rights in land, though by their nature were nothing but rights to occupy and use the land, were nevertheless real property protected by the provisions of Article 24 of the Constitution. Any other conclusion would have meant that most of the inhabitants of the Tanzania mainland were “no better than squatters in their own country”. It followed therefore that deprivation of a customary or deemed right of occupancy without fair compensation was prohibited by the Constitution. The court therefore held that the sections of the 1992 Act that provided for the extinction of customary rights in land and prohibition of compensation payments were unconstitutional, null and void. However, the provisions of the 1992 Act did not apply to the respondents because their customary rights were extinguished before the 1992 Act. As the appeal was partly allowed and partly dismissed there was not order as to costs.