Mulika v Mahomed (Civil Appeal No. 9 of 1949) [1949] EACA 11 (1 January 1949)

COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and SIR JOHN GRAY, C. J. (Zanzibar)

ZEDI MULIKA, Appellant (Original Plaintiff)

ISMAIL MOHAMED, Respondent (Original Defendant) Civil Appeal No. 9 of 1949

(Appeal from decision of H. M. High Court of Uganda—Pearson, J.).

Mukopi holder of kibanja on mailo land belonging to the Kabaka-Subsequent grant of use of land to another-Rights of holder under Busulu and Envujio law (1927).

The appellant was a mukopi (peasant) holder of a kibanja (plot) on mailo land belonging to the Kabaka, planted vegetables thereon. The respondent subsequently entered on the land by virtue of an agreement dated 27th August, 1948, between himself and the Treasurer of Nkuluze (on behalf of the Kabaka), granting respondent the right to use the land for brickmaking. Appellant claimed damages for the uprooting of the vegetables.

Held (20-7-49).--(1) A mukopi can only be evicted from his kibanja by his mailo owner by a Court order for good and sufficient cause.

(2) The evicted mukopi is entitled to an order specifying the value of all improvcments made by him.

(3) These rights are not affected by any change of ownership of the mailo land.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—I agree with the judgment of my learned brother the Chief Justice of Zanzibar. The appeal is allowed with costs here and in the Court below an order will be made in the terms suggested.

SIR JOHN GRAY, C. J. (Zanzibar).—The appellant claims from the respondent damages for uprooting vegetables which he had planted upon land belonging to the Kabaka of Buganda.

The learned trial Judge has found as a fact that the appellant was let into occupation of the land by the Kabaka's local representative and that he planted the vegetables, which the respondent subsequently caused to be uprooted. The respondent entered upon the land by virtue of a written agreement, dated 27th August, 1948, whereby the Treasurer of the Nkuluze (on behalf of the Kabaka) granted him the right to use the land for purposes of brickmaking for a period of six months commencing on 1st September, 1948, on payment of a rent of Sh. 300 for the whole of the term. This agreement was, however, made at a date subsequent to the appellant's entry upon the land with the leave of the Kabaka's local representative for the purpose of growing vegetables.

The position of the appellant is made clear by the Busulu and Envujjo law, 1927. He was a mukopi (peasant) holder of a kibanja (plot) on mailo land belonging to the Kabaka and as such was entitled to the benefit and protection of the law just mentioned.

As section 11 of that law shows, no *mukopi* may be evicted by the *mailo* owner from his kibanja save for public purposes or for other good and sufficient cause and unless a Court having jurisdiction shall have tried the case and made an order of eviction. Here there has been no Court order of eviction. Even if there had been such an order, section 13 of the law enacts that at the time of making an order of eviction the Court shall take into consideration any

claim of the *mukopi* from his *mailo* owner, or the incoming tenants for improvements to the kibanja, "such as trees he has planted", and shall clearly specify in the order the amount so payable, and until this due has been discharged or order complied with no order of eviction shall take effect. A proviso to this section further recognizes the right of the mukopi of "getting from his kibanja" the produce from cotton, coffee and the like, so long as he shall not have abandoned it".

Again, section 15 of the law (as amended in 1944) enacts that, save as provided by section 15A, the rights of a *mukopi* under the provisions of the law shall not be affected by any change of ownership of the *mailo* land. Section 15A permits a new owner of *mailo* land to apply to a Court to evict a *mukopi*, if he "desires to occupy any part of that land for the purpose of residing or growing crops thereon".

From the foregoing it is clear that a mukopi cannot be evicted from his kibanja without an order from a Court and then only for good and sufficient cause and that, if he is evicted under a Court order, he is entitled to compensation for crops and improvements on the *kibania*.

Here, the respondent uprooted the appellant's vegetables without any Court order of eviction and must clearly compensate the appellant for his wrongful act.

The judgment of the lower Court will accordingly be set aside and the case will be remitted to that Court so that the amount of the damages payable by the respondent to the appellant may be assessed.

SIR GRAHAM PAUL, C. J. (Tanganyika).—I concur.