The plaintiff, a farmer aged fifty - eight years, had come to Chikonga village in 1929 when he was thirteen years old. He had married the niece of Joseph Chongo who had inherited land from his father, headman Chikonga. In 1940, when the plaintiff was twenty - four years of age, Joseph Chongo had allocated some of his land to the plaintiff and two other relatives. The plaintiff thus acquired about seventy to eighty acres and since that date had ploughed approximately sixty acres thereof. In November, 1972, there had been no grass in the usual village communal grazing area and so he decided to seek better grazing over the river near Rusangu Secondary School. He moved his cattle to that area during the months of November and December, 1972, and January, 1973. He continued to reside at Chikonga village, keeping three herdsmen herding the cattle across the river.
On the 26th January, 1973, the defendant, who was headman of Chikonga village, completed a Change of Village form under section 4 of the Registration and Development of Villages Act, 1971, and sent it to the plaintiff by hand of a schoolboy. The plaintiff had at no time indicated that he wished to change villages. When he approached the defendant in the matter the defendant had stated, "I am removing you from your village to Rusangu." The plaintiff then approached Chief Ufwenukwa, who had stated that he was not concerned with the paper and did not
want the plaintiff to move from the village. Despite this, however, the defendant, in November, 1973, ploughed a total of three plots consisting of twenty acres of the plaintiff's land and planted maize and sweet potatoes thereon. The defendant also broke the wire surrounding a night paddock for cattle and planted groundnuts thereon.
The plaintiff claimed damages against the defendant for wrongfully entering the plaintiff's land and ploughing thereon, an injuction restraining the defendant from a repetition thereof and for determination as to the ownership of any crop at present on the land.
Held:
(i) The plaintiff never ceased to be an inhabitant of the village and retained his customary rights over his land. Since the defendant wrongfully entered, ploughed and planted thereon, the plaintiff is entitled to damages.
(ii) Even though the plaintiff was not physically present during the material time he none the less resided as such at the village, to fall within the definition of "inhabitant" under s. 4 of the Registration and Development of Villages Act, 1971.
(iii) A chief who is not called as a witness by the court but by one of the parties to testify as to the facts could, none the less, be considered a person who has special knowledge of the relevant customary law for the purposes of s. 34 (1) (a) of the High Court Act, Cap. 50.
