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Hukumu yenye utata!

Discussion in 'Jukwaa la Sheria (The Law Forum)' started by Hiphop, Jun 7, 2011.

  1. Hiphop

    Hiphop Member

    #1
    Jun 7, 2011
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  2. Caren

    Caren JF-Expert Member

    #2
    Jun 7, 2011
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    I think its one of the most enlightening decisions i have seen in 2011. Dr. Fauz is a seasoned academic and a respectable judge and i am glad he was my teacher.

    Coming to the Judgement,
    I think and i stand to be corrected that he has touched one incidence of land ownership which has not been well addressed in the land Act. By judging the way he does he opens a Pandora box which if left unplugged a lot of land previously owned by Tanzanians will go into the hands of foreigners as of right and will be legal dispositions which can now only be extinguished under the Land Acquisition Act.

    More importantly as an orbiter dicta on second from the last paragraph on page 11 Dr. Twaib is raising another very important gap in the law which if not cured early (I hope people in the AG chambers also read the law) will cost us.

    In a nutshell he is laying a point that a non citizen may by way of a sales agreement may own a piece of land in Tanzania and will be the legal owner of it despite the fact that under ordinary cisrucmstances he wouldnt be able to own the land.

    Come to think of it, I think now i know why Kenyans buy land in Tanzania under sales agreement. They are informed of this gap in our laws and are actively pursuing it.

    Wakeup Tanzanians. Wake up Wabunge. wakeup Technocrats.
     
  3. N

    Ngereja JF-Expert Member

    #3
    Jun 8, 2011
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    Kwa mujibu wa maelezo yaliyotolewa na Jaji, na kwa mujibu wa sheria zilizotumika kufikia uamuzi huo. Hapo huwezi kumlaumu Jaji kwa uamuzi aliofikia, na ni hukumu ya haki kabisa. Kumbuka suala lilikuwa kurithi mali ambayo ni ardhi, na siyo kumilkishwa ardhi katika mchakato wa kawaida. Na kumbuka kuwa kuna taratibu za kurithi ardhi ya mtu aliyekufa ambazo zimeainishwa kwenye sheria tajwa. Kwa jinsi nilivyoisoma hukumu hii. Jaji amefafanua kinagaubaga na kutoa uamuzi uliozingatia tafsiri ya sheria husika.
     
  4. Hiphop

    Hiphop Member

    #4
    Jun 8, 2011
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    I do respect your thoughts but it is of my view that the case has just open up a pandora box. it is true that there is gap in the land act that if it is not addressed early it will bring a lot of confusion ahead, though statistically most of the grabbed land by the non-citizens in this country is done under the auspices of investment yet this judgement has brought up another door for non-citizens to acquire land. Some may argue that the interpretation done by Honourable Judge Fauz has error (emphasis is mine) but it is a wake call for law makers to seal the available lacuna in the Land Act in order to avoid the possibility of land being owned by non-citizens.
     
  5. Nyani Ngabu

    Nyani Ngabu Platinum Member

    #5
    Jun 8, 2011
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    What is wrong with non-citizens legally acquiring land in Tanzania? And if that law has some loopholes in it, why haven't the legislators done anything to plug them up?

    And where (in the land act) are those loopholes anyway? Can someone please point them out? Thanks much!
     
  6. FaizaFoxy

    FaizaFoxy JF-Expert Member

    #6
    Jun 8, 2011
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    "The procedure for such registration is provided for under section 140,
    which stipulates:
    On the death of the owner of any estate or interest, his legal personal
    representative, on application to the Registrar in the prescribed form and
    on delivering to him an office copy of the probate of the will or letters of
    administration to the estate of the owner, or of his appointment under
    Part VIII of the Probate and Administration of Estates Act or the
    Fourth Schedule to the Magistrates' Courts Act shall be entitled to be
    registered as owner in the place of the deceased.
    These transmissions are to be recorded under section 71 of Cap 334,
    which gives the Registrar powers to do so. It is also of some significance to say that nowhere in the Land Registration Act, Cap 334, is there a restriction against a transmission by operation of law in terms of section
    68 of the said Act, against a non-Tanzanian. That is the law of the land as
    I understand it."


    Lawyers, do not forget, the dispute was not allocation of land the dispute was transmission of the deceased property.

    Dr. Fauz was very right.
     
  7. Junius

    Junius JF-Expert Member

    #7
    Jun 8, 2011
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    Nakushukuru kwa kuweka hukumu yenyewe
     
  8. Hiphop

    Hiphop Member

    #8
    Jun 9, 2011
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    Well Nyani Ngabu, let me highlight some of the queries which you have raised in your comment as follows;
    quoting the words of the late Mwalimu Julius Kambarage Nyerere with the title words "RUKSA ARDHI KUUZWA KAMA KANZU!!", alisema,
    "Katika nchi kama yetu, ambamo waafrika ni masikini na wageni ni matajiri, kuna uwezekano mkubwa kwamba Mwafrika akiruhusiwa kuiuza ardhi, katika miaka themanini ijayo, ardhi yote ya Tanganyika itamilikiwa na matajiri wageni na wenyeji watakuwa watwana. Lakini hata kama wageni wasingekuwa matajari litaibuka tabaka la watanganyika matajiri na wajanja. Tukiruhusu ardhi iuzwe kama kanzu, katika muda mchache, kutakuwa na kundi dogo la waafrika wakiwa na ardhi na walio wengi watakuwa watwana" Mwl. Julius K.Nyerere, 1958​

    Hayo yalikuwa mawazo na muono wa Mwalimu mwaka 1958, mwaka 1999 Watanzania tukapata sheria zetu za ardhi ambazo kimuundo zilitungwa kufanana kwa kiasi kikubwa na ile ya Uingereza. Sasa hebu tuangalie mapungufu yaliyopo katika Land Act 1999 ambayo yanatoa nafasi kwa wageni kumiliki ardhi, kifungu cha ishirini kifungu kidogo cha kwanza kinaeleza ni marufuku iliyowekwa kwa wageni kumiliki ardhi isipokuwa kwa ajili ya uwekezaji au makazi ya wafanyakazi wa mradi wa uwekezaji , naomba nikinukuu, "For avoidance of doubt, a non-citizen shall not be allocated or granted land unless it is for investment purposes under the Tanzania Investment Act"
    Lakini sheria hiyo hiyo imetoa nafasi kwa wageni kupewa Hatimiliki (Right of Occupancy) badala ya Hatimiliki hafifu(Derivative right) kama ilivyoelezwa katika sheria, vifungu vinavyotoa nafasi kwa wageni kupewa hiyo Hatimiliki( Right of Occupancy) ni kama vifuatavyo, naomba kunukuu
    Section 19(2) "A person or a group of persons, whether formed into a corporate body under the Companies Act *(21) or otherwise who is or are non-citizens, including a corporate body the majority of whose shareholders or owners are non-citizens, may only obtain a right of
    occupancy
    or derivative right for purposes of investment prescribed under the Tanzania Investment Act

    Section 25 Procedure for application for right of occupancy
    (1) An application for a right of occupancy shall be–
    (h)if made by a non-citizen or foreign company, accompanied by a Certificate of Approval granted by the Tanzania Investment Centre under the Tanzania Investment Act *(26) and any other documentation which may be prescribed by that Act or any other law
    MWISHO WA KUNUKUU

    Sasa wanaotakiwa wafanye marekebisho haya ya sheria sio kwamba hawajui kama yapo ila wameyaacha na wanatumia upungufu huu wa sheria kugawa ardhi kwa wageni wanaokujua kwa kigezo cha uwekezaji. Ardhi ni moja ya rasilimali muhimu sana ambazo tusipokuwa makini Watanzania tutashindwa kuwa na ardhi yetu maana itaishia mikononi mwa wageni wenye fedha,swali la kujiuliza je, ni ruksa ardhi kuuzwa kama kanzu?
     
  9. Hiphop

    Hiphop Member

    #9
    Aug 17, 2011
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    FaizaFoxy ahasante kwa maoni yako, nilichokuwa najaribu kuonyesha hapa ni jinsi hiyo transmission ya land ilivyokuwa na impact kwenye ownership ya land. Hizi sheria mbili zinakinzana katika vifungu hivyo, wakati Land Act ikisema kuwa a foreigner cannot own land in Tanzania, sheria ya Land Registration inaruhusu transmission ambayo effect yake inabadili umiliki na kuwa kwa yule aliyepewa kwa maana nyinigine kilichofanyika ni indirect granting of land maana yule aliyepata kwa njia ya transmission ana haki zote kama yule aliyekuwa granted, hebutulitazame hili jambo kwa jicho la tatu wadau!
     
  10. Aloysius

    Aloysius Member

    #10
    Aug 19, 2011
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    Ijapo kuwa sipendi kuarakia mambo, lakini hata mimi hukumu hii imenitatiza kidogo
     
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