D'SouzaAg. J.: In this suit Mulbadaw village council, registered under the Villages and Ujamaa Villages (Registration) Act 1975 and sixty seven villagers of the same village, in their 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 stated as Mulbadaw village. On 24th of October 1981 in ruling on a preliminary matter Chuwa J. allowed an amendment of the plaint to put the Mulbadaw village H council properly on record. The land itself in dispute is 6095 acres of pasture land and 200 acres of arable land claimed by the first plaintiff as its property and another 1839 acres of arable land claimed as theirs by the rest of the plaintiffs.
At the beginning of the trial the following issues were agreed on by the parties and adopted as issue I in the case.
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A (1) Was the 1st plaintiff owner of 200 acres of farming land and 6,195 acres of pasture land at Mulbadaw village?
(2) Were the 2nd to 67th plaintiffs lawful owners of 1,830 acres of land at Mulbadaw and did the defendant B occupy 3000 acres of land belonging to the plaintiffs and destroy three houses belonging to the 8th, 66th and 67th plaintiffs?
(4) In March 1980 did the defendant occupy another 3000 acres of land belonging to the plaintiffs and destroy six houses belonging to 41st, 46th, 54th, 57th, 58th and 61st plaintiffs?
C (5) In December 1980 did the defendant set on fire and destroy twenty four homesteads 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; and destroy in these houses stored crops valued at Shs. 4,800 and also destroy 4281/2 acres of growing maize and beans?
D (6) If the defendant did the actions in issues 3, 4 and 5 above, were their actions lawful?
(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 the plaintiffs had no mandate from the Mulbadaw village council to institute the suit. At the time of framing the issues this was not raised as one of the issues but defendant's counsel cross-examined the plaintiffs' witnesses on it and again raised it in submissions at the end of the case. Counsel for the F defendant also went on to argue that only a few of the 67 villagers gave evidence and as the few had no authority to appear on behalf of the others the claims of those who did not testify ought to be dismissed. Although these arguments were not framed as issues at the beginning they are issues G apparent from the pleadings, the evidence on record and the submissions of both counsel. Under Order XIV rule 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 the Villages 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 of the village council. He was not cross-examined on the issue of mandate and his statement, in answer to a question from the court, to the effect that the village council had authorised the filing of the suit stands unchallenged. PW3 I Mohamed Abdi was a member of Mulbadaw village council until the end of 1981. The defendant tried to show that he was not resident in the village. However he had land
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in the village and the villagers accepted him as a member of the council. PW3's evidence that he was A a resident of Mulbadaw until events forced him to move in 1981 was supported 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 even before May 1974. Counsel for the defendant has B brought to the attention of this court the evidence of DW6 Andrew Dally, DW9 Sebastian Gidamashghu, DW3 Joseph Kamili to the effect that Mohamed Abdi was a resident of Endasak and not Mulbadaw. On this issue 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 C Mohamed 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 of 25.7.79) many villagers moved out but a few objected - e.g. Mohamed Abdi, Hassan Abdi, Ami Habiye .." I also note that when the D plaintiffs filed their amended plaint they also filed a document authorizing their counsel Mr. F.K. Musei to sign the plaint on their behalf and authorizing the plaintiffs Welwel, Mohamed Abdi, Ami, Yusuf and Bangi to represent them in the suit. On these preliminary issues I therefore find in favour of the plaintiffs. E
In this case although the issues, for purposes of convenience were split into six, there is one 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. The defendant does not deny that it entered into and still occupies land at Mulbadaw. It pleads however that it has been carrying out a lawful F Tanzanian national project, the Mulbadaw wheat project, covering 10,000 acres - part of the Hanang Wheat Complex covering 70,000 acres under the Canada - Tanzania Wheat Programme- the area having been identified by the Government for that purpose. In paragraph 5 of the written statement G of defence the defendant states that in order to give way to the said national project the Government and Party (C.C.M) authorities had more than once ordered and notified Mulbadaw villagers to vacate the areas identified for the project. In paragraph 6 the defendant asserts that since H identification of the area for the project by the government the defendant has maintained a lawful occupation of the land as per government directives.
During the course of the hearing of this case the defendant added another fact to its defence. Although the defendant did not apply to amend the written statement of defence I find that both I
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A parties led evidence and cross examined on this aspect and I find that in order to do justice between the parties and to sort out the real issues in controversy between them it is necessary to make a decision on this aspect too. This is to the effect that NAFCO has a lawful right of occupancy over the disputed areas.
B Before coming to the decision on the issues, let us consider the defendant's evidence on them. DW.1 Sadiki Omar Libembembe, an Administrative Officer with NAFCO testified that in 1960 the Government started research into the possibilities of large scale growing of wheat in Hanang C District. He produced as exhibit D.1 a Plan made by the British Government's department of surveys and issued by the Ministry of Land and Housing. He stated that in 1969 the Kilimo Department started Bassotu Wheat Scheme and in the same year NAFCO was established by Act 17 of 1969. He D produced photo copies of the national development plans showing that the wheat projects in Hanang were part and parcel of national development plans. On the question of how the projects were implemented vis-a-vis the peasants already in occupation of land in the marked areas he said this:
E When we start a project the peasants are informed through the instruments of the Government and the Party. A letter is written from NAFCO Headquarters to the Regional Party Secretary who was then also the F Regional Commissioner. He then spreads the message to the villagers through the Katibu Kata, etc. The NAFCO Manager in the area also assists in the spread of the information
DW7 MAO Mwengamba, Manager of Mulbdaw wheat project, on this aspect had this to say:
G In the 1980/81 season we had to move people out. The procedure followed was to inform the Katibu Kata of the affected area. On 29.3.1979 I saw the Katibu Kata to inform 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 with the Mulbadaw village authorities who were accordingly informed of the boundaries of Mulbadaw farm.
I On the second facet of the defendant's defence a number of witnesses testified - the main one being one T.M. Hyera (DW2) of the Land Office at Arusha. According to this witness an application
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by NAFCO for 22,793 acres of land at Bassetu was approved by the Regional Land Advisory A Committee and by its letter AR/R/1009/22 of 20.1.1973 to NAFCO the Land Office made a formal "offer" of a right of occupancy. There is no evidence on record that this offer of 20.1.73 was accepted and registered. Instead there is a request for a 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 was accepted and fees were paid in August 1981. The offer document was signed by NAFCO in July 1981. The Right of Occupancy was for 99 years back-dated to 1.7.1979. C
At the end of the case for both sides the court specifically directed both counsel to submit on the applicability of Act 47/1967 Land Acquisition Act. Both counsel, Mr. Jundu and Mr Musei did so. Section 3 of the said Act authorizes the President to acquire land where such land is required for any public purpose. S.4(2) provides: D
Where the President is satisfied that a corporation requires any land for the purpose of construction of any work which in his opinion would be of public utility or in the 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 the gazette, declare the purpose for which such land is required to be a public purpose and upon such order being made such purpose shall be deemed to be a public purpose for the purpose of this Act. F
Section 6 of the same Act provides that if the President resolves that any land is required for a public purpose the Minister (for lands) shall give notice of such intention to the persons interested or claiming to be interested in such land. Section 7 provides that the Minister may provide by notice G under s.6 or subsequent notice directing the person concerned to give up possession within a specified period not less than six weeks from the 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 the mode of publication of the notices. H
Counsel for the defendant has argued that the Act is not applicable to land held by peasants 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 the Land Ordinance and Act 47/67 includes I titles of peasants holding
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A land under customary tenure. Furthermore s.17 of the Land Acquisition Act provides that where any question arises respecting title to any land the party in possession shall be deemed to be lawfully entitled to such land unless the contrary is shown to the satisfaction of the court. In this B matter if the plaintiffs (including 1st plaintiff) were in possession of the disputed land before NAFCO came on the scene they would be deemed to be entitled thereto.
In view of the above it appears that the law and procedure to be followed in acquiring land for public purposes is clear enough. It is also clear from the evidence of the defence witnesses that the law, C though clear, was not followed. However whether the provisions of the Land Acquisition Act can be applied to the facts of this case would depend 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, testified that from D may 1974 to September 1975 he was one of those involved in the establishment of village under "operation vijiji". Mulbadaw was one of the villages established. 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 Northern side it bordered on the Rift Valley and Ufana Ward in Bashnet. On the south side, the Laq'ang hill. According to this witness these boundaries followed the old boundaries of what was even then called Mulbadaw village. The land within the village was divided into areas for housing, farming areas for cultivation and pastures. According to the evidence of PW3 F Mohamed Guled Mulbadaw village was registered and incorporated under reference Reg. AR/KIJ/266 as per exhibits P.2 and P.3. There was also the evidence of PW.4 Jonas Samu on this issue that Mulbadaw developed into a fully fledged village with 'kayas' and a council. The G defendant has argued that as the village was not registered until 1976 it could not hold land in 1975. I accept the evidence of PW.1 Frederick Tluway. The effect of this evidence is that before the village was incorporated Mulbadaw village was an administrative unit. When it was incorporated it was in H possession and control of all land within the former administrative unit. It is inconceivable that a village was registered or incorporated without any land in its possession and control. Although the first issue was framed based on 'ownership' I find that once the village council the 1st plaintiff establishes lawful possession, it has established the preliminary requirement for a suit in trespass to I land. In view of this I do not consider it necessary to consider the defendant's argument that Mulbadaw village council had no formal right of occupancy
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over the land within the boundaries given by PW1. Frederick Tluway. I am satisfied that the village A council were in lawful possession and control of the land in question. The first 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. PW1 Frederick Tluway when he supervised "Operation vijiji" in Mulbadaw in 1975 found peasants already in B occupation of the area of Mulbadaw. He did not find NAFCO in the area which they set aside for Mulbadaw village which was later registered and incorporated. Of these he remembered the second and the 54th plaintiffs. We also have the evidence of PW.2 Welwel, PW 3 Mohamed Abdi, PW 4 C Jonas Sama, PW5 Habiye, PW6 Yusuf Ally and PW 7 Bangi Laida that they or other peasants were in occupation for a long time before NAFCO moved into the area. DW1 Sadic Omar Libembembe and DW7 MAO Mwingamba in their evidence also admitted that in 1978 when 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 6/1/81 contained a list of peasants whose crops were destroyed. The list gives the destroyed acreage of each peasant. According to PW3 Mohamed Guled on 6/1/81 the meeting elected a committee to deal with their problems. They visited the farm of each peasant E affected and recorded the damage done. Later in his evidence PW3 Mohamed Guled stated that the list was of 67 people who had their houses or crops destroyed. PW3 was not cross examined on the correctness or otherwise of this list. On the basis of the evidence of PW1 to 7, the admissions made F by DW.1 and DW7 and on the basis of Exhibit P.6 I find that the second to the 67th plaintiffs were in occupation of 1,839 acres of arable land in Mulbadaw village before NAFCO started operations in the area under the administrative jurisdiction of Mulbadaw village council. The village council G recognised that their occupation was lawful and they had been in occupation for a considerable time before NAFCO decided to expand. They had customary tenancies or what are called deemed rights of occupancy.
The defendant does not allege that it entered into vacant land. On the contrary it states that 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 council were extinguished or gave way to the superior rights of NAFCO. The court finds the rights of the peasants and the village council could not be extinguished or superseded except by due operation of law. I
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A 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 they overlap 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 by or at least in the lawful occupation of the plaintiffs). The second part is whether houses and crops were destroyed as alleged.
The Defendant contends that it entered the land lawfully with the blessings of government and C party leaders in Hanang District and Arusha Region. It is possible that the leaders concerned were acting in good faith but enthusiasm in implementing national projects should not encourage the taking of short cuts. The Mulbadaw village council and Mulbadaw villagers could only be deprived of their land by due operation of law. The Land Acquisition Act 47/67 provides the law on theD matter. The same Act also envisages situations where land is needed urgently and those in possession can be dispossessed at an enhanced speed. But as already held elsewhere in this judgment the provisions of this law were not followed.
E The Defendant also contends that the land it occupied was land in respect of which it held a valid right of occupancy. The Defendant produced three offers of rights of occupancy as exhibit D.10, D.11 and D.16. There are two reasons why this aspect of the Defendant's defence cannot stand. Firstly where someone is in lawful occupation of land no valid right of occupancy can be offered to F anyone else over the same land unless the provisions of the Land Acquisition Act 47/67 have been complied with. To hold otherwise would mean the Commissioner for Lands, by simple device of making offers of rights of occupancy could bypass the provisions of the law. In view of this I hold G that the right of occupancy offered to NAFCO in respect of Mulbadaw wheat project was not valid. 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 the requisite fees paid in August 1981. This was well after NAFCO had evicted the plaintiffs from the land. In other words when H NAFCO set out to expand into Mulbadaw they did not even have a right of occupancy over the area. For the above reasons this court finds 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 houses belonging to I 8th, 66th, 67th, 3rd, 4th, 5th, 10th, 11th, 14th, 15th, 16th, 17th, 19th, 22nd, 24th, 33rd, 35th,
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36th, 43rd, 44th, 45th, 48th, 49th, 50th, 55th, 62nd, 41st, 46th, 54th, 57th, 58th, and 61st plaintiffs. The A defendant also denied destroying stored grain worth Shs. 4,800/- and 4281/2 acres of growing maize and beans. On the destroyed houses the defendant appears to state that the peasants voluntarily demolished them. On the stored grain the defendant denied any knowledge of the same. B On the destruction of crops the defendant admits that these were destroyed but states that this was not done by it. In paragraph 4 of the written statement of defence the defendant states that no trespass, blazing of houses and unlawful up rooting of crops had been committed by him (sic) at any point of time but all along since 1978 to present day the defendant has been carrying on a lawful C Tanzania national project.
Let us look at the evidence on this aspect. DW.3 Joseph Kamili was the officer in charge of the police station at Bassotu at all relevant times. He said that while holding that post he had never D received any complaints from peasants in Mulbadaw that NAFCO had burnt down or demolished their houses and destroyed their crops. In the same breath he stated that on 17.10.80 he was chosen as a member of sub-committee appointed by the Bassotu Ward Authorities to look into complaints E from peasants who said their houses had been burnt down. According to this witness when the subcommittee of six visited the areas they only saw some "bomas" or cattle enclosures burnt down. When cross-examined by Mr. Musei for the plaintiffs he said that he did receive complaints from the peasants that their houses were burnt down. He found some houses demolished by the peasants F themselves. D.N. 5 Amos Mwita was in the uncomfortable position of being the officer in charge of law and order in Hanang District at the relevant time. He said he did not personally receive any complaints from the peasants that their crops and houses had been demolished or destroyed - he G received these from the "O.C.S." Bassotu and the Area Commissioner of Hanang District. He received this news by radio call on 8.12.80. He made an investigation and wrote a report (Exhibit D.19) to the Area Commissioner. The relevant part of the report reads: H
Mnamo tarehe 29/12/80 Mkuu wa Polisi Wilaya ya Hanang alifuatana na baadhi ya walalamikaji walifika sehemu ya mahame yaliyosemwa kuchomwa. Hakuona dalili ya nyumba au mazao kuchomwa ila kulikuwa na masalia ya majivu ya magogo yaliyong'olewa na kuchomwa. Kulikuwa na udongo I
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A uliosukumwa na kurudishwa pamoja kwa kitu kama mashine. Walalamikaji .. walishindwa kuonyesha masalia.
On cross-examination he said he saw the remains of some small maize plants that had been ploughed B over. DW.7 MAO Mwangamba, the manager at Mulbadaw at the relevant time also gave similar evidence - that only cattle enclosures or fences surrounding houses had been burnt and that houses had been moved by the peasants themselves. However to the script. He stated that from 3rd to 5th C January 1981 the Katibu Kata, the Mratibu Kata and the police from Bassotu came to Mulbadaw to ask for agricultural equipment to assist in moving out the peasants - tractors and plough. On these three days "the job" was, he said, done. In cross-examination he said that he gave them four tractors driven by the drivers working for NAFCO - Mulbadaw and under his directions. He was D around on the first day of the "operation" and then left for Arusha. DW.10 Charles Kapera the 'O.C.S.' Bassotu in 1979, 1980 and 1981 also gave similar evidence. DW.9 Sebastian Gidamashghu, the Katibu Kata of Bassotu was also one of the people involved in the exercise of removing E peasants from the area. On the side of the plaintiffs on these issues we have the evidence of PW2 Welwel Amsi, PW 3 Mohamed Guled, PW 6 Yusufu Ali, and PW 7 Bangi Laida. Welwel Amsi described the progressive expansion of the Mulbadaw project over 3 years and its effect on the plaintiffs. So did PW.3 Mohamed Guled, PW6 Yusuf Ali and PW7 Bangi Laid. In weighing the F relative credibility of these witnesses on these issues I have taken into account that they must be quite bitter about losing their land, houses, and livelihood. However, I have, with this in mind observed that demeanour and reaction to cross-examination and I find them to be truthful witnesses. G I find that the evidence of DW.3 Joseph Kamili, DW.5 amos Mwita, DW.7 Charles Kapera, all of whom were involved in various stages of removing the peasants, their houses and crops from the disputed land, to be unreliable and self-serving. Aside from these opinions of this court on credibility I find that there are circumstances lending support to the plaintiffs' case. DW.1 Said Omar H Libembembe and DW.7 MAO Mwengamba accepted that there were peasants living in the area before NAFCO moved in. They presumably lived in houses. By the time the suit was filed these houses were no longer there. The Defendant contends that the peasants voluntarily removed them. I In view of the long history of resistance on the part of the peasants I find such voluntary demolition impossible to believe. PW3 Mohamed Guled produced as Exhibits P.6 and P.7 a list
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compiled by the plaintiffs of the people whose crops were ploughed over and whose houses were A demolished. No cross-examination was led on these exhibits. In view of the above, and considering the evidence as a whole, I find it proved to the extent required in Civil Cases, or even more, that the plaintiffs' growing crops, stored crops and houses were destroyed by the defendant. B
The defendant's counsel urges in his submission that the mischief if any, was done by the officers of the administration and the police. From the beginning this has been a conflict between NAFCO and the plaintiffs. The part played by the administration and police has been at the request and instigation of NAFCO. NAFCO does not deny entering into the land immediately the village and C villagers were ousted. They do not also deny providing active assistance and equipment in the last stages of the operations. In view of the above I find no merit in the defendant's contention that it was a mere on-looker. D
In the final event issues 1 to 6 are answered in favour of the plaintiffs.
In this suit the plaintiffs pray for judgment to be entered against the defendant as follows:
(a) A declaration that the land belongs to the Plaintiffs and an order that the defendant cease E their trespass forthwith.
(b) Special damages in the sum of Shs 545,600/=
(c) General damages for trespass F
(d) Interest
(e) Costs
(f) Any other relief
In view of the findings on the issue in this case prayer (a) is granted as prayed. On the special G damages claimed PW.3 Mohamed Guled testified that 378 acres of growing maize and 501/2 acres of growing beans were ploughed over. He gave the production of maize in the area at 81/2 bags to 15 bags per acre at Shs. 130/- per bag- making a total of Shs. 467,777/- for loss of the maize crop. Fifty H and halfacres of beans were destroyed. According to PW.3 each acre would have produced 4 bags at 275/- a bag making Shs. 56,525/- in lost beans crop. The 33 destroyed houses were valued at Shs 500/- each - making a total of Shs 16,500/-. PW.3 also testified that Safari Sito had 18 bags of maize I burnt and Bangi Laida had 10 bags of maize and 7 bags of beans burnt. As the maize was from the
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A previous year's crop PW.3 put it at Shs. 100/- a bag. The figure for the burnt crops was Shs 4,800/=.
The defendant did not challenge these figures either in cross-examination of the plaintiff's witnesses or through its own witnesses. The figures appear reasonable and I accept them. In the event the B claim for special damages is allowed as prayed at Shs 545,600/-.
In considering the claim for general damages this court considers the following factors:
(a) The plaintiffs have been deprived of the use of their land partially from March 1979 and C totally from January 1981 until to-date. Excluding the 1980/81 crop which has been covered by the award of special damages, the plaintiffs have lost crops for three years.
(b) On only 4281/2 acres of land the plaintiffs were capable of producing over Shs 500,000/- D worth of crops per annum. The total land they were deprived of using was 6,095 acres of pasture and 2030 acres of arable land.
On the other hand I consider that the plaintiffs during their period of deprivation did not have to use any inputs in the form of seed, fertilizer, labour, fuel etc.
E Considering that the 1st plaintiff had only 200 acres of land under cultivation and that the exact use to which the pasture was put was not established, I award the 1st plaintiff Shs. 250,000/- as general damages. The 3rd to the 67th plaintiffs, who owned and used 1830 acres of land are awarded F shs. 1,300,000/- in general damages - the same to be apportioned between them in proportion to the acreage held by each before their eviction by NAFCO. The special and general damages awarded, totalling shs. 1,095,600/- is to bear interest at 9% from the date of judgment until payment in full.
G The plaintiffs are also awarded the costs of this suit, the same to be taxed.
Delivered this 3/12/84 in the presence of Mr. Musei for the plaintiffs and Ndugu H.A. Mapezi of H NAFCO Zonal Office, Arusha for the defendant.
Order Accordingly.
A