Berabera Ujamaa Village vs Abubakari Bura [1982] TZHC 11 (6 August 1982)


Lugakingira, J.: In November 1978 the appellant's government formally resolved and took over the respondent's shamba within Berabera village. Its agents promptly destroyed the growing crops in the shamba, including cassava, castor-oil plants, E bananas, etc. The respondent valued his loss at Shs. 4,500/= and commenced action in the Primary Court at Bareko to recover the same. This was in Civil Case No. 95/78. He was successful and the court awarded him the sum claimed together with costs.
The action had been instituted against one Mohamed Hasare and one Labay Juma, the F chairman and secretary respectively of the appellant. When the matter came to the attention of the District Court of Kondoa the District Magistrate there decided to revise the proceeding. He did so in Civil Revision No. 2/79 and quashed the proceeding. He stated that the appellant was incorporated under Act No. 21/75  and therefore capable G of suing and being sued in its name. He accordingly advised the respondent to proceed against the appellant rather than its individual officers. The respondent heeded the advice and commenced fresh action in the same primary court claiming the same relief. He was again successful. The appellant unsuccessfully appealed to the District Court and further appealed. H
I am satisfied after a careful study of the record that the appellant through its agents committed the trespass and waste complained of. Even in the memorandum of appeal before this court, the appellant does not seek to contest these facts. It only argues that the respondent exaggerated the degree of his loss. I think that this is an afterthought, I seeing as I do that it is the first time this issue is

being raised. Besides, in arriving at its decision, the trial court visited the shamba in A question and made on the spot observations. I have no reason to differ with the court which had that privilege. I therefore reject the appellant's argument. Further, in case the question of jurisdiction should be of interest to the appellant, I would state that I do not subscribe to the view that the tort of trespass has no cognizance in customary law and B therefore not maintainable in primary courts. Trespass is as old as man. Long before the colonisers came trespasses on the person and property were being committed in the villages of the same nature as are being committed today. I have yet to be told that aggrieved parties had no remedy in the pre-colonial days. Indeed the decisions of this C court have never questioned the jurisdiction of primary courts in matters arising out of trespass. Bukenyera v Malayarubusi [1969] HCD n.190 and Bakari v Kalumuna [1970] HCD n. 229 are two examples in this regard. I hold, therefore, that the present Dproceeding was properly commenced in Primary Court.
It is not desirable to remind the appellant generally, and its enthusiastic officers in particular, that a person's lawful property cannot be seized or destroyed without lawful cause. Village governments were instituted to stimulate rural development; they were not E instituted to destroy. To that end, village governments were given the duty and power to ensure that every able-bodied resident was allotted a piece of land for his subsistence and economic activities. It may perhaps be of assistance if I referred to the express provisions of the law. G.N. 168/75, para 5(2) provides as follows: F
   (2) subject to availability of arable land, the Village Council shall (my emphasis) allot a piece of farmland to every kaya in the village according to need and ability to develop it. The Village Council shall have power to determine the structural pattern of farms in the village and the use G thereof.
The law is clear; every Village Council is obliged to allot a piece of farmland to every kaya. That is a mandatory requirement. It is, therefore, ironical, and contrary to the spirit H of the law, for the Village Council to deprive a kaya of farmland, and developed farmland at that. The respondent already had a piece of farmland, it was situated within the village, it was fully developed according to the accepted evidence. It was then unlawful for the appellant to take it from him in the manner it purported to do. There is I also a corollary to the above. A corresponding duty is cast upon every resident to

obtain a piece of land in the village. This is set out in para 7(2) of the Directions A aforesaid which provides as follows:
   (2) Every resident of a village shall have the duty to obtain, and shall be entitled to be allotted, a piece of land in the village on which he shall carry on economic activities, whether on an B individual basis or in association with other resident.
That too is quite clear. Not only is a resident obliged to obtain a piece of land but he is also entitled to one. Happily, the respondent already had such piece of land and had C economically worked it. He was therefore not a burden to the appellant and had fulfilled the obligations imposed upon him by the law. But ironically again the appellant took that land away. No reason whatsoever was given by the appellant for this action. I can well D surmise that it was an act of envy and covetousness. But that is not the attitude expected of a village government. The appellant's action was therefore an infringement upon the respondent's right and an unfortunate assault upon the law of this country. To dramatise its ill-intentions the appellant even failed to give alternative land to the respondent. Nothing more could demonstrate the appellant's ignorance of the objectives E for which it was set up.
Finally, it is a fundamental human right that no man shall be deprived of his property without adequate compensation. That right is inalienable and is recognised by every F civilised society including our own. Some societies insist not merely on adequate compensation but adequate and prompt compensation. In theoretical terms the right to compensation may be traced to the concept of ownership. Mwalimu's words on this subject have considerable force and are worth quoting at length: G
From where does a man derive the right to possess something, and to refuse the whole world this right of ownership? This right originates from only one factor; the fact that man is nobody's property. He owns himself, his health, his intellect, and his ability cannot be someone else's property.. H
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 that it can satisfy a human need.. this I land is not mine, but efforts made by me in clearing the land enable me to lay claim of ownership over the cleared piece of ground.. by

clearing that ground I have actually added to its value.. whoever then takes this piece of A ground must pay me for adding value to it through clearing it by my own labour. (Freedom and Unity, (1967), pp. 53-54).
Leaving alone the philosophical considerations, it is trite law that every man is entitled to B his lawful property. Whoever takes or destroys it in circumstances amounting to trespass must make good the injury caused thereby. The gentlemen assessors who sat with the learned trial magistrate were of the same view. They even found that the prompt destruction of the crops was deliberately done to avoid payment of compensation. They C continued:
   ...serikali ya kijiji haikuwa na mapatano yoyote na mdai; aliona anaonelewa kuharibiwa chakula chake bila ya sababu yoyote. Anapatia riziki yake kwa mimea hiyo; hivyo katika shauri D hili mdai ameonyesha ushindi. Serikali ya kijiji cha Berabera wamlipe fidia aliyodai..
I agree; and for all that I have said, I dismiss the appeal with costs. E
Appeal dismissed.


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