Elia Mwaitenda v. Kajeti Mwaisela. Civ. App. 31-D-69; 3/11/69; Mustafa J.

 

Elia Mwaitenda v. Kajeti Mwaisela. Civ. App. 31-D-69; 3/11/69; Mustafa J.

The piece of land in dispute was allotted to Elia Mwaitenda by the Village Development Committee. Some villagers alleged that the land was used as common land for the grazing of cattle and that the VDC had no right to allocate it. The primary court held that Elia had rightly acquired the land. In an appeal to the District Court. “[The villagers] then successfully appealed to the District Court of Tukuyu/Rungwe. The District Magistrate said he was satisfied that the land originally belonged to a number of villagers who had given it up for purposes of grazing cattle belonging to the villagers. He said the village development committee was well aware that this was common pasture land reserved by the villagers for them before the Village Development Committee came into being. He also held: “There is no law or rules which governs that the V. D. C s. have got powers to interfere with what the villagers had mutually done or reserved heir pasture before. The V. D. Cs. came into being, and this is not in accordance with Nyakyusa customary law, that the Chief had the power to interfere with such pasture which his people or villagers had mutually reserved their pasture. The duty of such Chief or Chiefs was to preserve and maintain what his people or villagers had done. I believe that the V. D. Cs. are doing the same work which the Chiefs were doing before.”

            Held: (1) “It seems the district magistrate was of the view that Kajeti Mwaisela was representing himself as well as sixteen other villagers, and he appears to believe that the view of Kajeti represented the consensus of the village. He mentioned Nyakyusa customary law in relation to common grazing land In his judgment, but unfortunately there were no views of the assessors given as to what constituted Nyakyusa customary law. No evidence as such was given by a party as to such customary law either.” (2) “The point I think I have to decide is whether, when a village development committee in the normal exercise of its powers allocates to a party a piece of land a court should interfere. If the allocation for instance was done under duress or by fraud or there was misconduct, it is clear a court could and should interfere. But when the allocation has been done bona fide, as apparently was done in this case, and no misconduct has been alleged or proved, I do not think a court should substitute its view of what should be done for that of the village development committee and interfere in such allocations. I believe the village development committee is the proper body to deal with land allocation in the various areas and villages, and the members of such committee would be aware of the prevailing customary laws.” (3) Appeal allowed. Judgment of District Court set aside and that of the Primary Court, restored.