MULBADAW VILLAGE COUNCIL AND 67 OTHERS v NATIONAL ...

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Editorial Note: National Agricultural and Food Corporation successfully appealed to theCourt of Appeal against this decision in Civil Appeal No. 3 of 1985 (to appear in 1986T.L.R). F[zJDz]JudgmentD'Souza Ag. J.: In this suit Mulbadaw village council, registered under the Villages andUjamaa Villages (Registration) Act 1975 and sixty seven villagers of the same village, intheir individual capacity are suing the National Agricultural and Food Corporation(hereinafter referred to as G NAFCO) for a large tract of land in Hanang District,damages for trespass and other connected reliefs. Originally the first plaintiff was statedas Mulbadaw village. On 24th of October 1981 in ruling on a preliminary matter ChuwaJ. allowed an amendment of the plaint to put the Mulbadaw village H council properlyon record. The land itself in dispute is 6095 acres of pasture land and 200 acres of arableland claimed by the first plaintiff as its property and another 1839 acres of arable landclaimed as theirs by the rest of the plaintiffs.At the beginning of the trial the following issues were agreed on by the parties andadopted as issue I in the case.1984 TLR p17D'SOUZA Ag JA (1) Was the 1st plaintiff owner of 200 acres of farming land and 6,195 acres ofpasture land at Mulbadaw village?(2) Were the 2nd to 67th plaintiffs lawful owners of 1,830 acres of land atMulbadaw and did the defendant B occupy 3000 acres of land belonging to the plaintiffsand destroy three houses belonging to the 8th, 66th and 67th plaintiffs?(4) In March 1980 did the defendant occupy another 3000 acres of landbelonging to the plaintiffs and destroy six houses belonging to 41st, 46th, 54th, 57th, 58thand 61st plaintiffs?C (5) In December 1980 did the defendant set on fire and destroy twenty fourhomesteads belonging to 3rd, 4th, 5th, 10th, 11th, 14th, 15th, 16th, 17th, 19th, 22nd,24th, 33rd, 35th, 36th, 43rd, 44th, 45th, 48th, 49th, 50th, 55th, and 62nd plaintiffs; anddestroy in these houses stored crops valued at Shs. 4,800 and also destroy 4281/2 acres ofgrowing maize and beans?D (6) If the defendant did the actions in issues 3, 4 and 5 above, were their actionslawful?(7) What reliefs, if any, are the parties entitled to?E In the defendant's written statement of defence the defendant raised an issue that theplaintiffs had no mandate from the Mulbadaw village council to institute the suit. At thetime of framing the issues this was not raised as one of the issues but defendant's counselcross-examined the plaintiffs' witnesses on it and again raised it in submissions at the endof the case. Counsel for the F defendant also went on to argue that only a few of the 67villagers gave evidence and as the few had no authority to appear on behalf of the othersthe claims of those who did not testify ought to be dismissed. Although these argumentswere not framed as issues at the beginning they are issues G apparent from thepleadings, the evidence on record and the submissions of both counsel. Under Order XIVrule 5(1) I propose to deal with these as additional issues.The defendant does not deny that the Mulbadaw village is a registered village under theVillages and Ujamaa Villages Act 1975. PW4 Jonas Samu is the Chairman of the village
council. As such he H would be the natural and legal spokesman and representative ofthe village council. He was not cross-examined on the issue of mandate and hisstatement, in answer to a question from the court, to the effect that the village council hadauthorised the filing of the suit stands unchallenged. PW3 I Mohamed Abdi was amember of Mulbadaw village council until the end of 1981. The defendant tried to showthat he was not resident in the village. However he had land1984 TLR p18D'SOUZA Ag Jin the village and the villagers accepted him as a member of the council. PW3's evidencethat he was A a resident of Mulbadaw until events forced him to move in 1981 wassupported by the evidence of PW1 Frederick Tluway the Katibu Kata (Ward Secretary)of Bosanta in 1974. We stated that PW3 Mohamed Abdi was resident in Mulbadaw evenbefore May 1974. Counsel for the defendant has B brought to the attention of this courtthe evidence of DW6 Andrew Dally, DW9 Sebastian Gidamashghu, DW3 Joseph Kamilito the effect that Mohamed Abdi was a resident of Endasak and not Mulbadaw. On thisissue I believe I have to take the evidence of the defence witnesses with a grain of salt.The evidence of DW4 Karoli Flavian, taken together with Exhibit D.18 shows that CMohamed Abdi had an old house and mature trees around this house. DW 7 M.A.O.Mwengamba, probably in an unguarded moment, stated, "After this (The meeting of25.7.79) many villagers moved out but a few objected - e.g. Mohamed Abdi, HassanAbdi, Ami Habiye .." I also note that when the D plaintiffs filed their amended plaintthey also filed a document authorizing their counsel Mr. F.K. Musei to sign the plaint ontheir behalf and authorizing the plaintiffs Welwel, Mohamed Abdi, Ami, Yusuf andBangi to represent them in the suit. On these preliminary issues I therefore find in favourof the plaintiffs. EIn this case although the issues, for purposes of convenience were split into six, there isone central issue that is paramount and on which the entire decision will necessarily rest.This issue arises from paragraphs 4 to 6 of the written statement of defence. Thedefendant does not deny that it entered into and still occupies land at Mulbadaw. It pleadshowever that it has been carrying out a lawful F Tanzanian national project, theMulbadaw wheat project, covering 10,000 acres - part of the Hanang Wheat Complexcovering 70,000 acres under the Canada - Tanzania Wheat Programme- the area havingbeen identified by the Government for that purpose. In paragraph 5 of the writtenstatement G of defence the defendant states that in order to give way to the said nationalproject the Government and Party (C.C.M) authorities had more than once ordered andnotified Mulbadaw villagers to vacate the areas identified for the project. In paragraph 6the defendant asserts that since H identification of the area for the project by thegovernment the defendant has maintained a lawful occupation of the land as pergovernment directives.During the course of the hearing of this case the defendant added another fact to itsdefence. Although the defendant did not apply to amend the written statement of defenceI find that both I1984 TLR p19D'SOUZA Ag JA parties led evidence and cross examined on this aspect and I find that in order to dojustice between the parties and to sort out the real issues in controversy between them it is
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Page 5 and 6: to be signified by resolution, of t
Page 7 and 8: NAFCO unlawfully B entered into the

MULBADAW VILLAGE COUNCIL AND 67 OTHERS v NATIONAL ...

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