MULBADAW VILLAGE COUNCIL AND 67 OTHERS v NATIONAL ...

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necessary to make a decision on this aspect too. This is to the effect that NAFCO has alawful right of occupancy over the disputed areas.B Before coming to the decision on the issues, let us consider the defendant's evidenceon them. DW.1 Sadiki Omar Libembembe, an Administrative Officer with NAFCOtestified that in 1960 the Government started research into the possibilities of large scalegrowing of wheat in Hanang C District. He produced as exhibit D.1 a Plan made by theBritish Government's department of surveys and issued by the Ministry of Land andHousing. He stated that in 1969 the Kilimo Department started Bassotu Wheat Schemeand in the same year NAFCO was established by Act 17 of 1969. He D produced photocopies of the national development plans showing that the wheat projects in Hanang werepart and parcel of national development plans. On the question of how the projects wereimplemented vis-a-vis the peasants already in occupation of land in the marked areas hesaid this:E When we start a project the peasants are informed through the instruments of theGovernment and the Party. A letter is written from NAFCO Headquarters to the RegionalParty Secretary who was then also the F Regional Commissioner. He then spreads themessage to the villagers through the Katibu Kata, etc. The NAFCO Manager in the areaalso assists in the spread of the informationDW7 MAO Mwengamba, Manager of Mulbdaw wheat project, on this aspect had this tosay:G In the 1980/81 season we had to move people out. The procedure followed was toinform the Katibu Kata of the affected area. On 29.3.1979 I saw the Katibu Kata toinform him to move out the peasants who were in the area earmarked for expansion.H This witness went on to explain how NAFCO Officers held a meeting on 25.7.79 withthe Mulbadaw village authorities who were accordingly informed of the boundaries ofMulbadaw farm.I On the second facet of the defendant's defence a number of witnesses testified - themain one being one T.M. Hyera (DW2) of the Land Office at Arusha. According to thiswitness an application1984 TLR p20D'SOUZA Ag Jby NAFCO for 22,793 acres of land at Bassetu was approved by the Regional LandAdvisory A Committee and by its letter AR/R/1009/22 of 20.1.1973 to NAFCO theLand Office made a formal "offer" of a right of occupancy. There is no evidence onrecord that this offer of 20.1.73 was accepted and registered. Instead there is a request fora resurvey and division and new offers for smaller units. Accordingly another offer (Ex.D.16) was issued to NAFCO for the Mulbadaw area - B dated 29.7.1981. The same wasaccepted and fees were paid in August 1981. The offer document was signed by NAFCOin July 1981. The Right of Occupancy was for 99 years back-dated to 1.7.1979. CAt the end of the case for both sides the court specifically directed both counsel to submiton the applicability of Act 47/19<strong>67</strong> Land Acquisition Act. Both counsel, Mr. Jundu andMr Musei did so. Section 3 of the said Act authorizes the President to acquire land wheresuch land is required for any public purpose. S.4(2) provides: DWhere the President is satisfied that a corporation requires any land for thepurpose of construction of any work which in his opinion would be of public utility or inthe public interest or in the interest of the national economy, he may, with the approval,
to be signified by resolution, of the National Assembly and by order E published in thegazette, declare the purpose for which such land is required to be a public purpose andupon such order being made such purpose shall be deemed to be a public purpose for thepurpose of this Act. FSection 6 of the same Act provides that if the President resolves that any land is requiredfor a public purpose the Minister (for lands) shall give notice of such intention to thepersons interested or claiming to be interested in such land. Section 7 provides that theMinister may provide by notice G under s.6 or subsequent notice directing the personconcerned to give up possession within a specified period not less than six weeks fromthe date of publication of such notice in the gazette. The President may, in urgent cases,certify so and possession may be obtained in a lesser period. Section 8 provided for themode of publication of the notices. HCounsel for the defendant has argued that the Act is not applicable to land held bypeasants under customary land tenure and only applies to formal rights of occupancy.This court is unable to agree. The definition of right of occupancy under Cap. 113 of theLand Ordinance and Act 47/<strong>67</strong> includes I titles of peasants holding1984 TLR p21D'SOUZA Ag JA land under customary tenure. Furthermore s.17 of the Land Acquisition Act providesthat where any question arises respecting title to any land the party in possession shall bedeemed to be lawfully entitled to such land unless the contrary is shown to thesatisfaction of the court. In this B matter if the plaintiffs (including 1st plaintiff) were inpossession of the disputed land before NAFCO came on the scene they would be deemedto be entitled thereto.In view of the above it appears that the law and procedure to be followed in acquiringland for public purposes is clear enough. It is also clear from the evidence of the defencewitnesses that the law, C though clear, was not followed. However whether theprovisions of the Land Acquisition Act can be applied to the facts of this case woulddepend on this court's decision on issue No. 1 and 2 as framed.On issue No.1 PW.1 Frederick Tluway, the then Katibu Kata of Bassotu Ward, testifiedthat from D may 1974 to September 1975 he was one of those involved in theestablishment of village under "operation vijiji". Mulbadaw was one of the villagesestablished. On the western side its boundary was Bassotu Plantations and Bassotu Lake.On the Eastern side its boundary was the Rift Valley E escarpment. On the Northernside it bordered on the Rift Valley and Ufana Ward in Bashnet. On the south side, theLaq'ang hill. According to this witness these boundaries followed the old boundaries ofwhat was even then called Mulbadaw village. The land within the village was dividedinto areas for housing, farming areas for cultivation and pastures. According to theevidence of PW3 F Mohamed Guled Mulbadaw village was registered and incorporatedunder reference Reg. AR/KIJ/266 as per exhibits P.2 and P.3. There was also theevidence of PW.4 Jonas Samu on this issue that Mulbadaw developed into a fully fledgedvillage with 'kayas' and a council. The G defendant has argued that as the village wasnot registered until 1976 it could not hold land in 1975. I accept the evidence of PW.1Frederick Tluway. The effect of this evidence is that before the village was incorporatedMulbadaw village was an administrative unit. When it was incorporated it was in Hpossession and control of all land within the former administrative unit. It is
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Page 3: council. As such he H would be the
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