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
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:
"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 re-allocation 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
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
The appeal is dismissed with costs. A
Appeal dismissed.
B
