MULBADAW VILLAGE COUNCIL AND 67 OTHERS v NATIONAL ...

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inconceivable that a village was registered or incorporated without any land in itspossession and control. Although the first issue was framed based on 'ownership' I findthat once the village council the 1st plaintiff establishes lawful possession, it hasestablished the preliminary requirement for a suit in trespass to I land. In view of this Ido not consider it necessary to consider the defendant's argument that Mulbadaw villagecouncil had no formal right of occupancy1984 TLR p22D'SOUZA Ag Jover the land within the boundaries given by PW1. Frederick Tluway. I am satisfied thatthe village A council were in lawful possession and control of the land in question. Thefirst issue is accordingly answered in the positive and in favour of the 1st plaintiff.On issue No.2 relating to 2nd to 67th plaintiffs the following evidence is relevant. PW1Frederick Tluway when he supervised "Operation vijiji" in Mulbadaw in 1975 foundpeasants already in B occupation of the area of Mulbadaw. He did not find NAFCO inthe area which they set aside for Mulbadaw village which was later registered andincorporated. Of these he remembered the second and the 54th plaintiffs. We also havethe evidence of PW.2 Welwel, PW 3 Mohamed Abdi, PW 4 C Jonas Sama, PW5Habiye, PW6 Yusuf Ally and PW 7 Bangi Laida that they or other peasants were inoccupation for a long time before NAFCO moved into the area. DW1 Sadic OmarLibembembe and DW7 MAO Mwingamba in their evidence also admitted that in 1978when NAFCO moved into D Mulbadaw area they found peasants living in the area.However Exhibit P.6, minutes of a meeting held by Mulbadaw village on 6/1/81contained a list of peasants whose crops were destroyed. The list gives the destroyedacreage of each peasant. According to PW3 Mohamed Guled on 6/1/81 the meetingelected a committee to deal with their problems. They visited the farm of each peasant Eaffected and recorded the damage done. Later in his evidence PW3 Mohamed Guledstated that the list was of 67 people who had their houses or crops destroyed. PW3 wasnot cross examined on the correctness or otherwise of this list. On the basis of theevidence of PW1 to 7, the admissions made F by DW.1 and DW7 and on the basis ofExhibit P.6 I find that the second to the 67th plaintiffs were in occupation of 1,839 acresof arable land in Mulbadaw village before NAFCO started operations in the area underthe administrative jurisdiction of Mulbadaw village council. The village council Grecognised that their occupation was lawful and they had been in occupation for aconsiderable time before NAFCO decided to expand. They had customary tenancies orwhat are called deemed rights of occupancy.The defendant does not allege that it entered into vacant land. On the contrary it statesthat it H rightfully displaced the village council and the peasants after the land was'identified' for its use - in other words the rights of the peasants and the village councilwere extinguished or gave way to the superior rights of NAFCO. The court finds therights of the peasants and the village council could not be extinguished or supersededexcept by due operation of law. I1984 TLR p23D'SOUZA Ag JA In view of the above issue No.2 is also answered in favour of the plaintiffs.This court proposes to consider the evidence on issues 3, 4, 5, and 6 jointly as theyoverlap considerably. However the same can be considered in two parts. Firstly whether
NAFCO unlawfully B entered into the land (found in issues No.1 and 2 to be owned byor at least in the lawful occupation of the plaintiffs). The second part is whether housesand crops were destroyed as alleged.The Defendant contends that it entered the land lawfully with the blessings ofgovernment and C party leaders in Hanang District and Arusha Region. It is possiblethat the leaders concerned were acting in good faith but enthusiasm in implementingnational projects should not encourage the taking of short cuts. The Mulbadaw villagecouncil and Mulbadaw villagers could only be deprived of their land by due operation oflaw. The Land Acquisition Act 47/67 provides the law on theD matter. The same Act alsoenvisages situations where land is needed urgently and those in possession can bedispossessed at an enhanced speed. But as already held elsewhere in this judgment theprovisions of this law were not followed.E The Defendant also contends that the land it occupied was land in respect of which itheld a valid right of occupancy. The Defendant produced three offers of rights ofoccupancy as exhibit D.10, D.11 and D.16. There are two reasons why this aspect of theDefendant's defence cannot stand. Firstly where someone is in lawful occupation of landno valid right of occupancy can be offered to F anyone else over the same land unlessthe provisions of the Land Acquisition Act 47/67 have been complied with. To holdotherwise would mean the Commissioner for Lands, by simple device of making offers ofrights of occupancy could bypass the provisions of the law. In view of this I hold G thatthe right of occupancy offered to NAFCO in respect of Mulbadaw wheat project was notvalid. Secondly the offers as per Exhibits D.10 and D.11 were never formally accepted.The offer for Mulbadaw Wheat Project (Ex-D.16) was accepted in July 1981 and therequisite fees paid in August 1981. This was well after NAFCO had evicted the plaintiffsfrom the land. In other words when H NAFCO set out to expand into Mulbadaw theydid not even have a right of occupancy over the area. For the above reasons this courtfinds that NAFCO's entry into the 8,125 acres in dispute in this case was illegal.On the second aspect of these issues the Defendant has denied destroying 33 housesbelonging to I 8th, 66th, 67th, 3rd, 4th, 5th, 10th, 11th, 14th, 15th, 16th, 17th, 19th,22nd, 24th, 33rd, 35th,1984 TLR p24D'SOUZA Ag J36th, 43rd, 44th, 45th, 48th, 49th, 50th, 55th, 62nd, 41st, 46th, 54th, 57th, 58th, and 61stplaintiffs. The A defendant also denied destroying stored grain worth Shs. 4,800/- and4281/2 acres of growing maize and beans. On the destroyed houses the defendant appearsto state that the peasants voluntarily demolished them. On the stored grain the defendantdenied any knowledge of the same. B On the destruction of crops the defendant admitsthat these were destroyed but states that this was not done by it. In paragraph 4 of thewritten statement of defence the defendant states that no trespass, blazing of houses andunlawful up rooting of crops had been committed by him (sic) at any point of time but allalong since 1978 to present day the defendant has been carrying on a lawful C Tanzanianational project.Let us look at the evidence on this aspect. DW.3 Joseph Kamili was the officer in chargeof the police station at Bassotu at all relevant times. He said that while holding that posthe had never D received any complaints from peasants in Mulbadaw that NAFCO hadburnt down or demolished their houses and destroyed their crops. In the same breath he
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MULBADAW VILLAGE COUNCIL AND 67 OTHERS v NATIONAL ...

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