NTIYAHELA BONEKA v KIJIJI CHA UJAMAA MUTALA 1988 TLR 156 (HC)

 

NTIYAHELA BONEKA v KIJIJI CHA UJAMAA MUTALA 1988 TLR 156 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta J

27 August, 1988 C

Flynote

Land law - Eviction - Lawful occupier of land - Eviction from the land for no fault of

occupier - Reason for eviction being "nationalization" - Whether such lawful occupier

is entitled to D compensation.

Constitutional law - "Nationalisation" --Right to compensation.

-Headnote

The appellant was in lawful occupation of a piece of land for many years. The

authorities E measured 10 acres of virgin land and authorised the appellant to

develop the same for his own use. The appellant cleared the bush, and by 1978 he had

477 banana trees and was also growing therein seasonal crops. In October, 1981 the

respondents moved into F the shamba and told the appellant to vacate because they

had "nationalized" it on the ground of newly drawn boundaries between Kasengezi

village (the appellant's) and the respondents village, that is, Mutala village. When the

appellant asked the respondents to compensate him for his labour, they refused and

told him to remove his crops from the G shamba. The appellant filed suit in Kasulu

Primary Court. Aggrieved by the decision of the Primary Court the appellant

appealed to the District Court and eventually to the High Court. The issue is whether

the appellant is entitled to compensation for his labour.

Held: (i) A person is entitled to compensation for improvements effected on the land

H provided that at the time of carrying out such improvements he had apparent

jurisdiction for doing so;

(ii) the law in this country does not sanction seizure of an individual's

property in the absence of any enabling written law and without adequate

compensation. I

1988 TLR p157

CHIPETA J

Case Information

Appeal allowed. A

Cases referred to.

1. Ali Mangosongo v Chrispina Magenje [1977] LRT n. 8.

2. Lalata Msangawale v Henry Mwamlima [1979] LRT n. 3. B

[zJDz]Judgment

Chipeta, J.: In Kasulu Primary Court at Kasangezi, the appellant, Ntiyahela Boneka

sued the respondents, Mutala Ujamaa Village, for shs. 14,000/= as compensation for

his piece of land of ten acres which the respondents "nationalized" or unilaterally

took over. The trial court unanimously found for the appellant but assessed the

compensation at C Shs. 9,328/=. The respondents, however, successfully appealed to

the District Court. Dissatisfied with the decision of the District Court, the appellant

now appeals to this court.

The appellant's evidence, which was hardly disputed, was that in or about the year D

1974, during the movement of people into planned villages, the authorities measured

10 acres of virgin land and authorized the appellant to develop the same for his own

use. The appellant cleared the bush, and by 1978, he had 477 banana trees and was

also growing therein seasonal crops. E

In October, 1981, the respondents moved in the shamba and told the appellant to

vacate because they had "nationalized" it on the ground of the newly drawn

boundaries between Kisangezi village (the appellant's) and the respondent's village,

that is, Mutala village. When the appellant asked the respondents to compensate him

for his labour, F they refused and told him to remove his crops from the shamba. It

was then that the appellant filed this suit, and since then he has never entered that

shamba.

A village secretary of Mutala Ujamaa village testified for the respondents at the trial.

He stated: G

Kwa kukiwakilisha Kijiji, nakubali shamba hilo ni la Mdai. Baadaye

tulimtaifisha kutokana Kijiji kuwa ardhi yake. Tulimwitisha ang'oe migomba hiyo,

akakataa. Natoa barua ya Katibu Tarafa kama ushahidi. Hivyo hatuwezi kulipa. H

He went on to add that the shamba has now been divided into plots which have been

allocated to individuals.

On that evidence the trial court found as a fact that the appellant cleared the shamba

I when the land was virgin and planted therein, inter alia, 477 banana trees; and that

he cultivated the same for his

1988 TLR p158

CHIPETA J

own needs for many years before he was unceremoniously evicted therefrom, for no

A fault of his own. The trial court accordingly held that the appellant was entitled to

compensation for his labour on that piece of land.

On appeal to the District Court, the learned senior district magistrate (as he then was)

B appears to have accepted the findings of fact by the trial court, but he allowed the

appeal on the ground that the appellant had failed to remove the banana trees when

ordered to do so by the village authorities, that is the respondents.

On the evidence on record, there can be no dispute that the piece of land was

lawfully C allocated to the appellant when it was virgin land for the appellant to

develop it so as to meet his human needs. He did develop it and used it for many years

to meet his needs. In other words, the appellant was at all material times in lawful

occupation of that piece of land until the respondents seized it for no fault of the

appellant. D

The question for consideration and decision in this case, therefore, is whether in

those circumstances the appellant is entitled to compensation for his labour.

This important question is not a novel one. It has often exercised the minds of our E

statesmen as well as our jurists. It moved the former Head of State, Mwalimu Julius K.

Nyerere, to write, in his characteristic clarity:

When I use my energy and talent to clear a piece of ground for my use, it is

clear that I am F trying to transform this basic gift from God so that it can satisfy a

human need. It is true, however, that this land is not mine, but the efforts made by

me in clearing the land enable me to lay claim of ownership over the cleared piece of

ground. But it is not really the land itself that G belongs to me but only the cleared

ground which will remain mine as long as I continue to work it. By clearing that

ground I have actually added to its value and have enabled it to be used to satisfy a

human need. Whoever then takes this piece of ground must pay me for H adding

value to it through clearing it by my own labour. (Freedom and Unity/Uhuru na

Umoja, at pages 53 -54). (Emphasis supplied).

This court itself has on many occasions reiterated that statement of principle. It has

held I that a person is entitled to compensation for improvements effected on the

land provided that at the time of carrying out such improvements, he had apparent

1988 TLR p159

CHIPETA J

justification for doing so. (See Alli Mangosongo v Chrispina Magenje [1977] LRT A

n.8).

I feel I should buttress this point by referring, with respectful approval, to the case of

Lalata Msangawale v Henry Mwamlima, [1979] LRT n. 3 a case which is almost on all

fours with the instant case. That case involved a dispute over a piece of land between

B an individual who had developed it from virgin land and a village authority which

purported to lay claim to it. On appeal to this court, Mwesiumo, J., like myself, could

not resist quoting the above-quoted passage and stated, at page 24: C

In the instant case the appellant had successfully proved before the trial court

that he had occupied the land in dispute when the same was virgin and unoccupied.

Therefore even if the villagers considered it expedient to grab that piece of land in

order to enlarge the adjacent D shamba of the Wajamaa, the appellant, at the very

minimum, was entitled to be paid compensation by those wajamaa who wanted to,

and who in fact did, take his shamba and crops thereon.

With that statement of principle, I respectfully agree. In that case, Mwesiumo, J. E

underscores the point by referring to the letter and spirit of the then Preamble to the

Constitution and the TANU Creed (that case having been decided before the political

and constitutional changes of 1977 and after).

I propose to underscore the point by referring to the Supreme Law of the Land-the F

Constitution of the United Republic, 1977 as amended up to 1985. Subsection (2) of

section 23 of the Constitution provides that every person is entitled to a just reward

for his labour.

Section 24 (2) of the Constitution is even more to the point for purposes of this case.

It provides a follows: G

(2) Without prejudice to subsection (1), it is unlawful for any person to have

his property seized for the purposes of nationalization or for any other purpose

without any written law providing for commensurate compensation therefor. (A free

translation from the original Kiswahili text). H

That is the law, and the respondents, indeed, all those authorities in the position of

the respondents, would do well to bear in mind those legal provisions in making

decisions I regarding property of individuals which is lawfully owned. A strict

adherence

1988 TLR p160

to those provisions by all concerned will promote peace and harmony in our Society

and A will eschew a proliferation of such cases in our courts.

To sum up, the law in this country does not sanction seizure of an individual's

property in the absence of any enabling written law and without adequate

compensation. B

In the instant case, since the appellant was lawfully allocated virgin land which he

later cleared and developed to a stage where it now satisfies human needs, he is

entitled to adequate compensation for his labour from the respondents.

In the result, this appeal succeeds. The judgment of the District Court is accordingly

set C aside and that of the Primary Court restored. The appellant shall have his costs

in this court and both courts below.

D Appeal allowed.

1988 TLR p160

E