19810908 TZHC Mbeya

• / Y e-j IN THE HGH COURT OF TANZAI'IA

A BEYA CIVIL APPEAL NO. 45 OF 1960 (KYELA DISTRICT COUIiT CIVIL APPEAL - NO.1180 and NflOBO PRIMARY COURT CIVIL CASE N0.111 OF 1 979) LAISONNWAKIMTJ.. .....................LAFPELLANT vers KULEFYA 164ANYA1iA ....-i-....;....i.. RESPONDENT

JUDGMENT The respondent KULEFYA MWANYA1'A had flied a suit in the Primary Court of Ndobo in Kyeia District against the KIJIJI CHII IKULU claiming restoration of a shamba and compensation in the sum of shillings 7,0001=. The Kijiji was alleged to have expropriated the respondent's shamba measuring seven and a half acresf and gave it to people said to have been victims of floods.. The Kijiji, through it.s chairman, one LAISONI MWAKINU, allegedly allowed the flood victims to harvest and use padd as -vell as cassava which were on the shmba and cut down cashewnut trees which belonged to the respondent. After trial the Primary. Court awarded the respondent shillings 2,8501= being compenation for 19 bags of paddy which the respondent would have harvested. It declined to award conrpensation for the cashewnut trees and the cassava. The cassava were found to -be still in the shamba and unharvested, so an order was made that the respondent be allowed to harvest them. The court also declined to or d e rt restoration of the shamba to the respondent reasoning that the allocation of it to the flood victims was done in good faith and that those to whom it was allocated had already built their own houses on it and it would not have been proper to evict them. The Kijiji through its chairman was dissatisfied with the decision of the Primary Court and therefore appealed to the District Court. The

learned appellate district magistrate reviewed the evidence that had been adduced during the trial and came to the conclusion thqt the Primary Court had not fully award?d the respondent. It found that the value of the paddy was shs.2,433/75, that the respondent ought to have been compe±isated for the destroyed cashewnut trees and awarded shillings 2,800/= on thtopic. He also awarded the respondent ../2 PEI sh's.'l,4 6 o/= compensation for the cost of labour in -ti-v-a-t+- the shamba just beforehe was expropriatedi l As regards the cassava t; ho magistrate, curiously, gave thà respondent an option: to choose whichever bourso was more convenient -to harvest the crop or move the Primary Court to change its decision and award him compensation. The so called flood victims were to be evicted, from the shamba'- "watu waliopewa ardhi ile wafukuzwe/kuondokamara moja katika ardhi ile sio yco". 1gain the chairman. of the Kijiji, acting in a representative capacity has aipeal.ed to this cot.irt against the decisions of the lower courts. Incidentally, the high court a.peal case file wrongly shows the chairman of. the Kijlji, Laisoni Mwakimu, .0; as the appellant In the first ground of the açpellant's memorandum of appeal the jurisdctiori of two loweX courts is challenged. It is argued that the Kijiji had acquird the respondent's shamba in the public interesti claiming authority from

the Villages and Ujaniäa villages (ogistrationDesignation and Idministration) Pctf 1o21 of 1975, therefore, that customary law was not ihvolvedl With respect i ± am unable to see any provision' of ict No.21 of 1975 which empowers a Village Council to expropriate land in the public interests I alo observe that the appellant has misconce!ved direction 5 of the Minister's Directions contained in Government Notice 167 of 168 of 1975, made under section 23 of the ict. Direction5 (1) specifically says that land for the use of a village shall comprise such areas of land as may be reserved for that purpose and a11octed (my emphasis) to the village by the District Development Council. Ifter the village has been allocated such land it can then allot a piece of farmland to every kaya in the village according to need and ability to develop it t4hile I concede that it is questionable whether land in a registered village can he said to be under customary tenure, yet it does not arpear to me that disputes arising from incidents of land use in such a village could not be-taken to a Primary Court for adjudication. .13 t The proviso to section 14(1)(a)(i)(A)excludes proceedings affecting title to or any inte±ost in land registered under the land flogistration Ordinance, from being adjudicated by Primary Courts, But I am not aware, and Jc't No.21 Of 1975 does not say so, that land allocated 'to a

registered village ,1nd 1egistration Ordinance. is also registered under thet2 therefore uphold the jurisdiction of the Primary Court in entertaining the suit and that of the District Court in. sitting as the first appel- late court. Ground 2 of the memorandum of appeal has been answered in considering ground (1). While, the village council acted within its competence to rehabilate flood victims I am not persuaded that it could expropriate property in the manner it did, particularly so when the land expropriated had crops suhas paddy, cassava and cashewhut trees belonging to the respondent. Even assuming it had the jowcr to take away land in the use of one and give to another or others, it had an obligation to pay compensation for the th'iexhausted improvements the respondent had effbted on the land. In this connection I can do no better than quote from the judgment of I4nzavas, J (as he then was ) in LJITON KIG11L.A v MUSIA BAR ITI 1975 LRT. n. 40, a revision case, where he said -. "Compensation,for he labotirs finds recognition in the P.reamble to the Constitution of this ooun't:ry ähd in the TANU (now cC4) creed. The couhtry's constitiiion says tha4 all meh have a right to receive a "just return for their labours" . A And, to crown it all, it must be remembered that the President in his essay on "National Property" welcomed compensation as a necessary corollary when dealing

with the nationalisatiori of land. He said: When I use my energy and talent to clear a piece, of ground for my use it is clear that I am trying • to transform this basic gift from God so tha'. it can satisfy a human need - By clearing that ground I have actually added to its value and have enabled it to be used to satisfy a Ll 1' -4-, human need. Whoever then takes this piece of ground must pay me for adding value to it through clering it by my on labour - Jac I can find no merit in groind (3) 6 f the memorandum of appeal. No proper proof has been adduced at the trial that the respondent had been prosecuted and convicted in a Court of law in connection with the 'piece of land in dispute. As for proof of presence of paddy on the shamba there was ample proof from the resj7ondefit's.witnesses vhom both loer courts believed. I can see no reason to differ from the findings of fact of those courts. Indeed the Primary Court had the advantage, which I do,not have, of visiting the shamba in dispute. Further, the fact that neither the Police nor CC were-. helpful to the respo-ndent w4en4q complained to them is no proof thathe had no cr.ops.on. the shemba I dismiss grounds 4 and 5 of the memorandum of appeal being iithout substence. Thore no ru-Ie of procedure requiring a person who. has remedy. tnjo.th'a criminal and civil court to firstb in the criminal court before filing a

compiYaikffihacT156iit. I do not know the kind of hearsay evidence the first appellate court is alleged 't hie cce'pd. - Tkre fihl o"uñc' of appeal 'rgue 1th''that pdi&nt's ind haá al'rdd been 6116Ved to th' t fláod vj6tjmd to rs -oe 11t tdt-brsporderit vthuild' create dängerou -' pre drd .underrici-ne thC thórity of t)xe i.i'll&g& g6 - ernrndnt .' - • t. .: r i r . •:- ft.: I shall rule that the land should not be restored fi:d: 3t , tt. i'tn:' Cit to the respondent but fore different reason. If indeed Ikulu is a, registred villago,and that 'has not been 1 questioned, the respondent does not appear to belong to it. ...'' He may have used the shamba for 46 years as he claims but h'&berongs to' a differèit, il1ge' JCisl Ikiinklogic would .sugg:est th:t •1and in a 'GgI e,ed.vill-age .S -for. the - -.' - ..• :.-: : - .. -. ...... '- •_ :. .1 5 benefit of those living' in that vi11 and those, like the flood victims, who are specifically invited into the village. It only causes confusion if residents of one village retain land in a different registered village to the exli.ion of the residents of that other village. I would therefore dismiss the appeal, ordering compensation for the paddy and the cashenut trees to be paid to the respondent as assessed by the first appellate court. If the respondent has already harvested his cassave crop he should cease from oning land in the Ikulu village unless he is member thereof. If however, the cassava crop was harvested by those. to thom the village alloted the shamba then the Primary Coirt of Ndobo should assess reasonable compisation for it The respondent is to get costs of this appeal and in the lower courts. J.A. MROSO

JUDGE 8/9/81 TV