BUNZARI MPIGUZI v LUMWECHA MASHILI 1983 TLR 354 (HC)
Court High Court of Tanzania - Mwanza
Judge Katiti J
October 14, 1985
(PC) CIVIL APPEAL 207 OF 1982
Flynote
Land Law - Land allocation - Village Council allocated land - Whether Council has
such B power - S. 195 Local Government (District Authorities) Act 1982.
Constitutional Law - Village Council reallocates land - Destruction of crops belonging
to former user - Whether user entitled to compensation from the Council - Fourth C
Constitutional Amendment 1984.
-Headnote
The village Council of Kijuka village allocated land which was already occupied and
used by the respondent to one Maduka s/o Mahushi. The latter destroyed crops
which D had been planted by the former and planted his own crops on the land.
The respondent sued the appellant in his capacity as chairman of the village council
for compensation for the destruction of his crop.
Held: (i) The new allocatee was entitled to uproot the crops he thought were not
useful E to him; it was the Village Council which caused the destruction of the
respondent's crops;
(ii) section 24 of the Fourth Constitutional Amendment Act 1984
unequivocally provides that nobody should be deprived of his property contrary to
law and without F compensation commensurate to the value of such property if such
deprivation is necessary.
Case Information
Appeal dismissed.
No cases referred to. G
[zJDz]Judgment
Katiti, J.: Lumwecha Mashili, hence to be referred to as the respondent, filed an action
in Kasenyi Primary Court Sengerema, against Bunzari Mpiguze, hence the appellant,
in his capacity as the chairman of Kijuka village, claiming Shs. 1,000/= the alleged
value of H the crops, that were allegedly destroyed, as a result of the re-allocation of
the same land he had hitherto been cultivating to one Maduka s/o Mahushi, who
uprooted the same and planted his own crops. The Primary Court gave verdict
against the respondent, arguing that after all, the appellant was not personally
involved in the I uprooting of the said crops. The respondent, dissatisfied, appealed
to the District Court which
1983 TLR p355
KATITI J
held that since it was the village authority which did allocate the land knowing fully
well A that the same land had been under use by the respondent, it must be held
liable for compensation for crops damaged as a result thereof. The District Court
upheld the respondent's claim and hence this appeal.
In the direction for disposal of this appeal, I shall first go by the undisputed and the B
unchallenged. In the year 1980, DW.3 Maduka s/o Mahushi approached the village
Council of Kijuka village for allocation of land for use and continued agricultural
purposes. The Village Council dutifully obliged, and allocated a piece of land to
DW.3. Maduka s/o Mahushi who began clearing and cultivating the same. The
respondent had C hitherto been using the same said piece of land. The respondent,
upon discovering what DW.3 Maduka s/o Mahushi was doing, became angry alleging
that his crops had been uprooted and destroyed by the donee of the same land, and so
sought Shs. 1,000/= as compensation for the same from the Village Council that
allocated the same. D Having studied the record, it does appear that while the
foundation of the claim is clear cut, the defence does seem to admit to having
allocated the same land to DW.3 although claiming at the same time that DW.3 was
not allowed to uproot the respondent's crops. And yet in the memo of appeal, the
appellant comes up with a surprise, averring that the land allocated was empty land.
To avoid narrowing my view E of the case, and with the uncontrovertible fact that
the same said piece of land was allocated to DW.3, I shall allow myself to entertain
five broad issues namely:
(1) Whether the piece of land had hitherto been under use by the
respondent. F
(2) Whether the same piece of land had been planted with crops.
(3) Whether upon allocation of the same to DW.3, such crops were
uprooted, or otherwise destroyed and,
(4) Whether the Village Government is liable to pay the compensation
claimed. G
(5) If issue (4) is positive what reliefs is the respondent entitled to, if at all?
I shall deal with the above issues seriatim. The first issue does on the record qualify
for a positive and affirmative answer without qualification, for apart from the H
generality of the evidence by the respondent, the appellant, whether unwittingly or
because of desire to tell the truth, does admit that not only had the respondent
hitherto and before been using the said shamba, but also that the said shamba had
been planted with potatoes and cassava at the time of the I allocation of the same to
DW.3, in as few words as follows:
1983 TLR p356
KATITI J
"Maduka Mahushi aling'oa viazi na mihogo yako kwa nguvu zake tu
bila kibali changu A wala Kamati ya Ugawaji".
From the above, I would prefer not to beat about the bush in the direction of
answering issue No. 1 and No. 2, for it does unequivocally appear that when the reallocation
of this piece of shamba to DW. 3 by the Village Council was done, the
appellant and B associates well knew that the respondent had been using this land
and had by then and currently planted potatoes and cassava. It does appear to me
from the above that the affirmative answers in so far as issues (1) and (2) are
concerned are as natural as are day and night. The appellant cannot be now heard to
say that the land was empty. C
Whether the potatoes and cassava crops were destroyed does quickly then arise. The
answer is not difficult to come by. I shall not go by the evidence of the respondent
personally, which in any case is that the same crops were destroyed, for that apart, D
P.W.2 Lubinza s/o Kiyeji ardently and succinctly says and I quote:
"Maduka Mahushi aling'oa mihogo ya mdai na akapanda mihogo yake". E
It could and may easily be observed that this excerpt from the evidence of PW. 2,
does not in any way differ from what the appellant said in the excerpt I have above
associated with him. From the above I find myself treading on a road and I consider
it very safe to conclude that indeed the respondent's crops were uprooted and
destroyed by DW.3, F the donee or allocatee of the same land or shamba. The third
issue does therefore qualify for an affirmative answer, which is hereby accordingly
accorded.
The respondent charges the Village/Chairman with liability to compensate him Shs.
1,000/= for the crop destruction - and hence the issue whether the Village
Government, whose Chairman is now its representative, is liable to pay such
compensation. In G attempts to solve this, I feel obliged to make concessions about
the legal reality that obtained then and is now obtaining. Under the Villages and
Ujamaa Villages (Reg. Desg. and adm.) Act No. 21 of 1975, in particular under the
provisions of section 12 of H the said Act, the Village Council in allocating land was
exercising its legal executive powers within the perimeters and boundaries of its
Village. So that it is an undisputable legal position that land allocation to Villagers in
this case fell within the bounds of such executive powers. As of now although the
Villages and Ujamaa Villagers (Registration, I Designation and Administration) Act
1975 under which the Village allocated the land has been repealed by section 195 of
the Local
1983 TLR p357
KATITI J
Government (District Authorities) Act No. 1982, the provisions of Section 12 of the
A Villages and Ujamaa Villages (Registration, designation and administration) Act
1975, have been re-enacted with little and in-consequential variations under section
142 of the Local Government (District Authorities) Act 1982 - retaining and
maintaining the supreme executive powers of the Village Council. B
Now to return to the relevant point, when the Village Council of Kijuka Village was
allocating the land to Maduka s/o Mahushi, it was exercising powers legally conferred
upon it by law. That may be fine. But the Village Council allocated land that was
already in use by the respondent, who as it has above been shown, had already
invested his sweat therein. And of course, Maduka s/o Mahushi, DW.3 having been
allocated land C for agricultural purposes, it was not for him to begin constituting a
commission of inquiry to establish who the owner of the land so allocated could be.
He was I think entitled to presume that the Village Council knew better that the land
in question had incumbent claimant or not. And once he was in occupation the said
Maduka Mahushi D DW.3 was entitled to make use of the land so allocated in the
fashion and manner consistent with land use. He was entitled to up-root crops he
thought were not useful to him and this he did. From the above I would confidently
conclude, that causatively it was the Village Council that led to the destruction of the
respondent's crops. E
Was the respondent to be compensated and by whom is the fourth issue. This
question I dare say is only rhetorically posed, for our jurisprudence does tenderly
nurse the concept that "all men have a right to receive" a just return for their labours
"or a just F compensation for labour rendered". See the Union Constitution of
Tanzania - Act 43/1975 then, - See also the case of Laiton Kingala v Musa Bariti
[1975] L.R.T. No. 40. And I think it is not irrelevant to add, that now vide the
provision of Section 24 of the Fourth Constitutional Amendment Act 1984, it is
articulated with emphasis and G unequivocally that nobody should be deprived of
his property contrary to law and without payment of compensation commensurate to
the value of such property if such deprivation is necessary. Although the Fourth
Constitutional amendment Act 1984, is a H recent arrival, the concept contained
therein, is as above shown not as recent an arrival as the Fourth Constitutional
Amendment. The Village Council, it is my conclusion, having deprived the
respondent of his shamba, and since admittedly the respondent had invested his sweat
and labour therein, the Village Council that causatively occasioned the destruction of
crops, has to compensate the respondent. As the quantum of compensation has not
been contested the same amount is allowed. I
1983 TLR p3587
The appeal is dismissed with costs. A
Appeal dismissed.
1983 TLR p358
B
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