Mustafa, J.A.: The respondents were plaintiffs in a High Court action. The first plaintiff, C Mulbadaw Village Council and another 66 villagers all of the same area, in the Basotu Ward, Hanang District, had filed a case in the High Court against the National Agricultural and Food Corporation (hereafter called Nafco) claiming general and special damages for trespass by Nafco over the plaintiffs' lands and destruction of D plaintiffs' crops and huts. The High Court (D'Souza, Ag. J.) awarded the 1st plaintiff Shs.250,000 as general damages and all the other plaintiffs a global sum of Shs.1,300,000 as general damages and a sum of Shs.545,600 as special damages to all the villagers. The Judge also made a declaration that the area of 8125 acres in dispute E belongs to the plaintiffs as claimed and ordered Nafco to cease its trespass forthwith. From that judgment Nafco has appealed to this court.
The Village Council claimed to be the "lawful owner" of 200 acres of arable land under cultivation and 6095 acres of pasture land. The village council in the plaint alleged that it was allocated the land by the "local F authorities' in 1976 and had since then been in possession.
The other villagers alleged in the plaint that they individually had separate farms allocated to them by "local authorities" in 1964 and that all the separate farms together measured 1830 acres of arable land.
Nafco in its defence claimed that it was in lawful occupation of the disputed land and denied the claim of the G village council and the other villagers and denied committing any trespass or acts of damage.
Since the litigants on both sides have claimed lawful possession or ownership over the same land, we will have to examine the evidence adduced in court to discover whose claim has more priority or is more superior. We will H say at once that the evidence adduced was somewhat confused and vague.
The village council was registered under the Villages and Ujamaa Villages (Registration, Designation and I Administration) Act 1975 on 24.3.1977 and incorporated on 30/12/1977. So the council existed as a legal entity as from 1977. There was evidence that before the village
NYALALI CJ, MUSTAFA JJA, MAKAME JJA
council was registered there was a Mulbadaw village, administering and with jurisdiction over an area of land A which the village council claimed. On this point the judge stated inter alia:
The defendant has argued that as the village was not registered until 1976 it could not hold land in 1975. I accept the B evidence of P.W.1 Frederick Tluway. The effect of this evidence is that before the village was incorporated Mulbadaw village was an administrative unit. When it was incorporated it was in possession and control of all land within the former C administrative unit. It is inconceivable that a village was registered and incorporated without any land in its possession and control .... I am satisfied that the village council were in lawful possession and control of the land in question.
The Judge had in effect held that the fact of registration and incorporation automatically vests the village council D with land. We do not think such a quantum leap is justified. The previous village as a community might or might not have had ownership or possession of the land within its administrative unit. The land in the village might have E belonged individually to the villagers living in the village or the village might have had some land in its own capacity as a community. We have no evidence. But an administrative unit does not necessarily imply that the land within its administrative jurisdiction is land belonging to it. At least no such evidence had been adduced, nor F indeed was such a claim made. The fact that the village council succeeded the previous unincorporated village in its administrative function over a specified area confers no title of any type over such land on the village council. The village council could acquire land only by allocation to it by the District Development Council. We refer to direction 5 of the Directions under the Villages and Ujamaa Villages (Registration, Designation and G Administration) Act, 1975 as published in Government Notice No. 168 on 22.8.75. It reads:
5(1) Land for the use of a village shall comprise such areas of land as may be reserved for the purpose and allocated to the village by the District Development Council. H
There was no evidence of any allocation of land to this village council by the District Development Council at any stage. On the evidence adduced in court we can find nothing which can sustain the claim by the village council I that it was the owner or was in possession of 200 acres of arable land and 6095 acres of pasture land from 1977 onwards. Prior to
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that of course the village council was not in existence and could not have owned or possessed land. A
We now deal with the other 66 villagers. Only 5 villagers testified as to their own claims, i.e. P.W.2, P.W. 3, P.W.5, P.W.6 and P.W.7. Two witnesses P.W.1 and P.W.4 also testified, but the evidence of these two B witnesses was irrelevant to the individual villagers' claim. The other claimants did not give evidence in court at all. They had, in writing, authorised those villagers who had testified to represent them and act in their behalf. That was in order. P.W.3 in the course of giving his evidence, produced a document Exh. p6, being minutes of a C public meeting held by Mulbadaw village on 6.1.81 with a list containing the name of villagers with their acreage of land and crops grown thereon which Nafco had allegedly destroyed and for which Nafco was sued in trespass.
It was alleged by P.W.3 that a committee had gone round and interviewed the villagers and recorded the damage D done. Primarily on the basis of this Exhibit p6, because no cross-examination was directed to it in the course of P.W.3's testimony, the trial judge held that the:
2nd to 67th plaintiff were in occupation of 1830 acres of arable land in Mulbadaw village before Nafco started operations E in the area under the administrative jurisdiction of Mulbadaw village council. The village council recognised that their occupation was lawful and they had been in occupation for a considerable time before Nafco decided to expand. They had customary tenancies or what are called deemed right of occupancy ... This court finds that the rights of the peasants F and this village council could not be extinguished except by operation of law....
The Judge had obviously held that all the 66 villagers held customary tenancies over their plots. We fail to see how the contents of Ex.p6 (which incidentally listed only 64 names) could be evidence of the respective rights of G those who had not testified. There is no evidence as to when each villager had occupied or was in possession of the land, and this list was compiled in the absence of Nafco. In any event each villager had to prove his own case. Each claim is different from the other, in terms of date of possession, of acreage, of the method of H acquisition, and so on. They were individual claims. A person may act and represent another person, but we know of no law or legal enactment which can permit a person to testify in place of another. All that P.W.3 could say was that he was told by certain claimants as to the facts of their claims, and what was said was listed I accordingly. That is pure hearsay, and direct or incontestable documentary evidence is required to sustain a
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land claim. The content of the minutes of that meeting does not prove itself, and is outside the scope of Part V of A the Evidence Act.
Here each villager had a separate and distinct claim, though the claims were based on similar acts of trespass. This is not one of those representative suits by or for a club, where different conditions apply. It is indeed B surprising that a number of plaintiffs failed to testify in court. Their cases never got off the ground. We are satisfied that the claims of those villagers who had not testified must fail.
We will now deal with those villagers who had testified. The Judge found that they had customary tenancies or what are called deemed rights of occupancy. C
In this connection we refer to the Land Ordinance, Cap. 113 of the Laws. An occupier is defined;
Occupier means the holder of a right of occupancy and includes a native or a native authority using or occupying land in D accordance with native law and custom.
The trial Judge obviously was of the view that the villagers were claiming as natives, and therefore as holders of rights of occupancy. "Native" is defined in the same Ordinance as: E
Native means any native of Africa not being of European or Asiatic origin or descent and includes a Swahili but not a Somali. F
P.W.2, P.W.5, P.W.6 and P.W.7 did not aver or testify that they were natives. It is for a plaintiff to establish that he was a native before a court can hold that he was holding land on a customary tenancy. These 4 villagers had not established that they were in occupation on the basis of customary tenancies. G
P.W.3 testified that he was of Somali descent, and was therefore in law not a native before 1970, and could not hold a customary tenancy.
By an amending Act to the Land Ordinance, Act No. 28 of 1970, native was amended as follows: H
A native means any person who is a citizen of the United Republic and who is not of European or Asiatic Origin or descent.
It will be seen that none of the villagers who had testified could be said to have held land on customary tenure, as I none had established, or even averred, that he was a native. They were thus not "occupiers" in terms of the Land Ordinance.
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According to the evidence of D.W.2, a Land Officer, about 26,000 acres of land in the Basotu Ward, which A land included the area in dispute between the litigants, was occupied by the Kilimo Dept. from 1968-1969. He testified that Nafco succeeded to the land occupied by Kilimo and entered into occupation of it in 1969, the area B being reduced to 22790 acres. In fact Nafco was offered a Right of Occupancy over the said 22790 acres in January, 1973 for 99 years. Nafco wanted 2 separate grants, in two different names, and the issue of the Right of Occupancy was thereby delayed until l981. But Nafco had occupied the land in dispute from 1969 onwards, although no wheat was planted until 1979. C
From the evidence of D.W. 2, the clear inference is that the land, inclusive of the disputed area, was in 1968 provisionally allocated to Kilimo and then to its successor Nafco pending the finalisation of the formalities of the issue of a Right of Occupancy. The offer of a Right of Occupancy in 1973 to Nafco bears this out. The Judge ignored the evidence of D.W.2 completely. D
According to D.W.3, a witness who did not impress the Judge, the area, including the land in dispute, was in 1968 fenced in by Kilimo, and villagers had entered the land by breaking the fence, necessitating the need to call in the Field Force to quell such riotous behaviour. The Judge did not refer to this part of D.W.3's evidence. E
In our view, the evidence of D.W.2 and D.W.3 would tend to show that Nafco had been in occupation of the disputed land since 1969. We also think that prior to 1969, none of the villagers who had testified had established that they had customary tenancies over their land, even if we accept that they were in physical F possession of or were using the land. The villagers who had testified could perhaps have been licensees, but they were not occupiers in terms of the Land Ordinance. We will now deal with each villager who had testified.
P.W.2 stated that he had lived at Mulbadaw for many years and was given a shamba after 1961. He did not say G when he was given the shamba, but it must have been around 1961. His house was destroyed by a Nafco tractor as well as his 4 acres of growing maize and beans. His hut cost Shs. 500 and he expected 15 bags of maize and 21/2 bags of beans per acre. Each bag of maize was valued at Shs.100, and each bag of beans at 275/=. His claim would be Shs.9,250/=. H
P.W.3 stated that he was a Somali, and that his father had the land since 1964 and he himself farmed the land from 1972. He had planted 50 acres of hybrid maize which was destroyed by Nafco. An acre of maize could yield on an average 5 bags of maize, each bag valued at shs.100/=. His claim would be 25,000/=. I
P.W.5 alleged that he had been on the land a long time ago when it
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was virgin land. He had 30 acres of hybrid maize intercropped with beans. He did not A give any figures. Presumably the figure would be 5 bags per acre of maize and each bag worth shs.100/=. His hut was also burnt. His loss would be 15,500/=.
P.W.6 stated that his father obtained the land in 1964 and he himself took over in 1975. B He had planted 5 acres of maize. He had 3 houses, which he estimated at Shs.26,000/=. He gave no figures for bags per acre or cost of a bag of maize. Presumably the figure would be 5 bags per acre and shs.100/= per bag of maize. His claim would be shs.28,500/
P.W.7 alleged that he had lived in the area for 25 years. Ten bags of stored maize and 7 C bags of stored beans were burnt. 51/2 acres of growing maize and 4 acres of beans were destroyed. He estimated 15 bags of maize and 4 bags of beans per acre. His hut was burnt. He estimated the cost of 1 bag of maize at 100/= and one of beans at at 275/=. His claim would be shs.15,575/=.
Both P.W.1 and P.W.4 did not claim any loss in their own right. D
As we have pointed out the evidence adduced was rather vague and imprecise. We will assume that the destruction and damage was done in or about 1979.
We will now refer to the evidence of D.W.9. This witness was the Katibu Kata of E Basotu Ward since 1977, which included the area in dispute. He testified that the villagers used to apply through him to Nafco to cultivate and plant on land in the disputed area every year. He had been granting permission on behalf of Nafco to such villagers. However he stated that for the 1980/81 season Nafco had refused permission to the villagers to cultivate and plant on Nafco land. Although the Judge found that D.W.9 was F unreliable, he was referring to the evidence of D.W.9 concerning the exercise in removing and evicting the villagers from the area in dispute. The Judge did not refer to or consider the evidence of D.W.9 about the granting of the yearly permission to cultivate and plant. G
We think that D.W. 9's evidence on this point is credible. If that were so, it is clear that the villagers were cultivating and planting with permission on Nafco land, until 1980. As such they were in possession lawfully, as licensees, and they can claim damages in trespass for their crops and huts destroyed in 1979. H
In our view of the evidence the Judge rightly found, despite Nafco's denial, that Nafco was responsible for the destruction and burning of huts and crops as alleged by the villagers who had testified.
In brief in our view the village council had failed to establish that it was in occupation of I or owned land since its registration and incorporation in 1977. The villagers who had not testified had failed to establish their
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claims as there was no evidence adduced in court in support. Those who did testify, i.e. A P.W.2, P.W.3 P.W.5, P.W.6 and P.W.7 had failed to establish that they originally had customary tenancies in that they had failed to prove that they were natives within the meaning of the word in the Land Ordinance. Nafco had been in occupation of the land in question, since 1969, as successors to Kilimo. After 1969, the villagers only B cultivated and planted with the leave and permission of Nafco, until Nafco refused permission in 1980.
If the villagers who had testified could have established that as natives they had rights of occupancy by virtue of customary tenancies then the view of the Judge that such villagers in this case could only be evicted or dispossessed under the provisions of the Land C Acquisition Act, No.47 of 1967 is sound.
In view of the conclusions we have reached, we have to decide if the villagers who had testified are entitled to any damages. We are of opinion that P.W.2, P.W.3, P.W.5, P.W.6, and P.W.7 would be entitled to claim for the loss they had suffered, as a result D of Nafco's action. They had cultivated and planted under licence from Nafco and were in physical possession at the material time and an action in trespass would lie. Since there was no challenge to their evidence in respect of the damage alleged, we are prepared to accept the figures and estimates they have submitted: E
P.W.2 would be entitled to a sum of shs. 9,250/=
P.W.3 would be entitled to a sum of shs.25,000/=
P.W.4 would be entitled to a sum of shs.15,500/=
P.W.6 would be entitled to a sum of shs.28,500/= F
P.W.7 would be entitled to a sum of shs.15,575/=
Their claims for general damages have not been made out. Their licences expired when their applications to cultivate and plant was refused by Nafco in 1980, and they had no G right or interest of any kind in the disputed land after their 1979 planting.
The claims of all the other plaintiffs fail.
We allow the appeal, set aside the judgment and order of the High Court, and substitute H therefore an order dismissing the claims of the plaintiffs except those plaintiffs listed below. The appellant will pay the successful plaintiff/respondents below named the sums set against their respective names:
P.W.2 Welwel Amsi the sum of Shs. 9,250/= I
P.W.3 Mohamed Abdi Guledi the sum of Shs.25,000/= A
P.W.5 Ami Habiye the sum of Shs.15,500/=
P.W.6 Uysufu F.G. Ally the sum of Shs.28,500/=
P.W.7 Bangi Laida the sum of Shs.15,575/=
These sums bear interest at 9% p.a from the date of the filing of the suit to date of B payment.
In the circumstances we make no order for costs, both here and below.
The appellant will be at liberty to apply for the refund of the money it had deposited in C court, subject to the deduction of the sums payable to the respondents as above stated.
1985 LTR p96