abdallah megabe sindoma and another vs the tanzania national roads agency and the attorney general 2021 tzhc 2442 30 march 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MUSOMA AT MUSOMA LAND CASE NO. 3 OF 2019 1. ABDALLAH MEGABE SINDOMA......................... 1st PLAINTIFF 2. PILI ELIZABETH SINDOMA.............................. 2nd PLAINTIFF VERSUS 1. THE TANZANIA NATIONAL ROADS AGENCY... 1st DEFENDANT 2. THE ATTORNEY GENERAL..............................2nd DEFENDANT JUDGMENT 10h December 2020 and 30h March, 2021 KISANYA, J.: The Plaintiffs, Abdallah Megabe Sindoma and Pili Elizabeth Sindoma are married couple. They claim to be the lawful owner of a land on Plot No. 29, Block B, located at Nyamuswa Village in Bunda District (henceforth referred to as the suit land). It was averred in the plaint that the suit land was allocated to the plaintiffs by the village authority in 1974 and a certificate of right of occupancy in 1993. In 2005, the 1st defendant, Tanzania National Roads Agency (TANROADS), marked "X" on the wall of the plaintiff's premises on the reasons that, they had trespassed into the road reserve. The plaintiffs consulted the 1st defendant on the matter. In 2009, the 1st defendant i informed the plaintiffs that their house was wrongly marked "X" and that they would be compensated in the event the road reserve is expanded to their plot. To their surprise, the plaintiffs received the 1st defendant's notice dated 10th January, 2019 informing them that the suit land was within 22.5 meters from the centreline of Nyamuswa-Bulamba-Kisorya (121.9 KM), Part of Nyamuswa-Bunda-Bulanda (56KM). The notice went on to order the plaintiffs to demolish and remove the structures developed in the said road reserve at their costs and without being compensated. Dissatisfied, the plaintiffs decided to institute the present suit against the TANROADS and the Attorney General. They pray for judgement and decree as follows:- (a)Specific damages to tune of Tanzania shillings (TZS) 100,407, 720/=. (b)General damages to the tune of TZS 151,000,000/=. (c)A Declaration that the Plaintiffs are the lawful owners of the suit land. (d)Costs of this suit. (e)Any other remedy as this Court may deem fit and just to grant. 2 The defendants filed a joint written statement of defence. They disputed the plaintiffs' claims. According to the defendants, the plaintiffs' house has at all material times being within the road reserve and in contravention of the law. Therefore, the defendants implored the Court to dismiss the plaintiffs' prayers for being baseless and unrealistic. In the light of pleadings filed by both parties, the following issues were framed to guide the Court in determining the matter: 1. Whether the suit land is within the road reserve or whether the plaintiffs encroached the road reserve. 2. To what reliefs are the parties entitled to. During the hearing of this case, the plaintiffs enjoyed the legal service of Mr. Daudi Mahemba, learned advocate while, Ms. Subira Mwandambo, learned State Attorney appeared for the defendants. Each plaintiff gave evidence. No other witness (es) was called to support the plaintiffs' testimony. The plaintiffs tendered three exhibits namely, the 1st defendant's letter dated 5th August 2009 (Exhibit PEI), the 1st defendant's notice dated 10th January, 2019 (Exhibit PE2) and the Certificate of Title on the suit land (Exhibit PE3). On the other side, one witness was called to testify on behalf of for the defendants. 3 The 2nd plaintiff, Pili Elizabeth Sindoma testified as PW1. She deposed to have married the 1st plaintiff's in 1970. She told the Court the suit land was allocated to them by the Nyamuswa Village Committee in 1974 and that, they built a house thereon in 1979. PW1 stated that their house was marked "X" by the 1st defendant in 2019. That her husband (1st plaintiff) followed the matter with TANROADS and that, it is the later who knows what happened thereto. She then urged the Court to do justice. During cross examination, PW1 stated that he married the 1st plaintiff in 1970 and that, they built the house on the suit land in 1979 after being issued with a building permit. PW1 further stated that the land was allocated to them by the Village Land Committee. PW1 admitted that she was not aware as to whether the suit land was within road reserve until when they received the 1st defendant's notice. She also stated that, the value of the house on the suit land was best known by the 1st plaintiff. The 1st plaintiff, Abdallah Megabe Sindoma testified as PW2. He introduced himself as a resident of Nyamuswa Village, Bunda District. PW2 told the Court that his house on Plot No. 29, Block B, Nyamuswa Village, Bunda District was marked "X" by the 1st defendant. That he 4 wrote two complaint letters to the 1st defendant whereby, he informed them that he had a certificate of tittle in respect of the suit land. According to PW2, the 1st defendant sent an officer to examine the suit land. Thereafter, he received the 1st defendant's letter dated 5th August, 2009 informing him that his house was not within road reserve. The said letter was tendered and admitted in evidence as Exhibit PEI. PW2 went on to state under oath that his house was marked "X" for the second time by the 1st defendant and that the 1st defendant informed him vide letter dated 10th January, 2019 (Exhibit PE2) that his house was within 30 meters from the centreline of the road. PW2 went on to tell the Court that, the suit land was allocated to him by the Village Land Committee in 1974 and started to develop the suit land in 1976. That it was in 1991 when he applied for certificate of title. Upon complying with the required procedures, he was issued with a Certificate of Title which was tendered and admitted in evidence as Exhibit PE3. PW2 stated further that the suit land had been planned in 1968. He vehemently denied to have trespassed to the road reserve. PW2 concluded his testimony by asking the Court to grant reliefs as it may deem just to grant. He also prayed for costs for this case. 5 When cross examined, PW2 clarified that the suit land was allocated to him 1974 during Operation Vijiji and that he built the house in 1976. PW2 conceded that he did not obtain the building permit before building. He went on to state that he was not aware as to when the road in front of the suit land was established. He also clarified that Exhibit PE3 was issued to him in 1993 and that the 1st defendant's notice was served to him at the time when he had already built the house on the suit land. PW2 further admitted that valuation of the house on the land in dispute was not conducted and that no evidence to prove the specific damage. Further to that, PW2 conceded that the notice (Exhibit PE2) ordered him to demolish and remove structures developed within 22.5 meters and not 30 meters from the centreline of the road. He stated further that the suit land had 4,000 square meters. The defence evidence was adduced by Eng. Idd George (DW1) who introduced himself to be the 1st defendant's Maintenance Engineer at Mara Regional Office. According to DW1 the suit land is located in Nyamuswa Village where there is a road from Mwanza, Simiyu, Mara (Bunda) to Kenya. DW1 told the Court that the road subject to this case passes to Bunda- Ikizu or Nyamuswa-Butiama- Kirumi- Sirari. It was deposed by DW1 that the road in respect of the suit land 6 was established in 1962 vide the Government Notice No. 471 of 1962 made under the Highway Ordinance of 1932. DW1 stated further that the width of the road was 22.5 meters from the centreline of the road on each side. He went on to depose that the plaintiffs' claim was baseless if the house is within 22.5 meters from the centreline of the road. DW1 told the Court that the planning and survey conducted in 1998 was illegal because it was conducted in contravention of GN. No. 471 of 1962. DW1 went on to state that the beacons as to road reserve were installed in 2003. He admitted that Exhibit PEI which informed the plaintiffs that his house was not in the road reserve was authored by the 1st defendant. However, DW1 told the Court the 1st defendant reviewed and re-examined the record and found that the plaintiffs were not entitled to any compensation. DW1 adduced further that Exhibit PE2 directed the plaintiffs to demolish development made within 22.5 meters from the centre of the road. He stated further that the plaintiffs' land was affected by 2.5 meters which extended to the road reserve and that the 1st defendant did not make valuation of the said area. 7 Upon being cross-examined, DW1 deposed to have visited and examined the locus in quo and noted that the plaintiffs' house was within the road reserve. However, he admitted that he was not aware as to whether the suit land was visited and examined before issuance of Exhibit PE2. He reiterated that the beacons were installed in 2003. Having summarized the evidence adduced by both parties, it is time to address the framed issue. The counsel for both parties did not make final submissions. The Court will be guided by evidence deposed by each party. As regards the first issue, the Court is called upon to determine whether the suit land falls within the road reserve or whether the plaintiffs encroached the road reserve. According to PW1 and PW2, the suit land is Plot No. 29, Block B, Nyamuswa area, Bunda District. The plaintiffs' evidence that they acquired the suit land in 1974 was not challenged by the defendants. Further, the plaintiffs tendered the certificate of title (Exhibit PE3) issued by the then Ministry of Lands, Water, Housing and Urban Development in 1993. Again, that evidence was not contested by the defendants. Therefore, the plaintiffs have proved on the balance of 8 probabilities that they have been in possession and ownership of the suit land. It is trite law that a person who allege existence of certain facts is duty bound to prove the same. Since the plaintiffs have proved to have been in lawful possession and ownership of the suit land, the burden to prove that, the suit land falls within the road reserve lies on the defendants. The sole witness (DW1) called by the defendants told the Court that the plaintiffs' land was within the road reserve. However, he did not name the road which the plaintiffs trespassed its reserve. DWl's evidence was to the effect that the road subject to this case derives from Mwanza to Simiyu- Mara (Bunda)- Kenya and that it passes to Bunda - Ikizu or Nyamuswa-Butiama- Kirumi- Sirari. Also, it was DWl's evidence that the said road was established in 1962 vide GN. No. 471 of 1962 and its width set out to be 22.5 meters from the centreline. However, reading from the notice (Exhibit PE2) served to the plaintiffs, the road subject to this case is Nyamuswa-Bulamba-Kisorya (121.9 KM): Part of Nyamuswa- Bunda Bulamba (56 KM). I have gone through GN. No. 471 of 1962 and found no mention of the said Nyamuswa- Bulamba- Kisorya Road or the above named road mentioned by DW1. The defendants were duty bound to adduce 9 sufficient evidence as to the establishment of the road subject to this case and changes of the name of the road, if any. This duty was not discharged by the defendants. I have also considered that, the 1st defendant had, through the letter dated 5th August, 2009 (Exhibit PEI), informed the plaintiffs that the suit land was not within the road reserve. For easy of understanding, the extract part of the Exhibit PEI is reproduced hereunder: "Ofisi ya Meneja wa Mkoa TANROADS- Mara imepitia sehemu tajwa hapo juu na kubaini kwamba nyumba yako i/iyoko katika Plot No. 29, Block 'B' eneo la Nyamuswa Mkoa wa Mara iko katika kiwanja halali na alama X Hiyowekwa inastahili kuondolewa. Hata hivyo kwa kuwa ujenzi wa barabara kwa kiwango cha /ami toka Nyamuswa had! Bunda haujafanyika na kama eneo hili Htahitajika kwa baadaye ofisi ya TANROADS itafanya taratibu zote kabla ya kuingilia eneo hilo. Kwa sasa unayo haki kuendeleza eneo /ako hadi hapo utakapotaarifiwa vinginevyo. Ofisi inaomba radhi kwa usumbufu u/iopata." The above letter speaks for itself. That, the suit land was not within the road reserve. The said Exhibit PEI was authored by the 1st defendant after visiting the suit land. What then made the 1st defendant to change her mind ten years later and issue the notice (Exhibit PE2) to the effect that the suit land is within the road reserve? DW1 did not enlighten the io Court on the factors considered before issuing the notice (Exhibit PE2) and whether the said same factors were not considered at the time of issuing Exhibit PEI. Further to that, Exhibit PEI was revoked by the 1st defendant because it was not referred to in the notice which ordered the plaintiffs to demolish the developments alleged to have been made in the road reserve. In the circumstances, the plaintiffs have two contradicting information from the 1st defendants on the suit land. All of the above considered, I am of the view that the defendants have failed to prove on the balance of probabilities that the suit land or part of it falls within the road reserve. To the contrary, it is the plaintiffs who have proved to be lawful owner of the suit land. The next issue is on the reliefs to which the parties are entitled to. As stated herein, the plaintiffs gave evidence which proved that they had been in possession of the suit land and developed the same. Pursuant to rule 2 of the Highways (Width of Highway) Rules, 1967, GN No. 161 of 1967, private land falling within the established or expanded road reserve is excluded. However, it is common ground the Government, through the 1st defendant, has powers to acquire land from an individual for the construction of roads. In my opinion, the road to be constructed by the 1st defendant on the suit land falls within the meaning of "public li interest" under section 4(1) of the Land Acquisition Act, 1967 (Cap. 118 R.E. 2019). Now, in terms of section 27 of the then Highways Act [Cap. 167, R.E 2002] and section 16 of the Roads Act, 2007, the owner of land affected by established or expanded road reserve is entitled to compensation. As for land acquired for public interest, section 11 of the Land Acquisition Act (supra) provides that the owner is entitled to compensation as may be agreed upon or determined in accordance with the provisions of that Act. In any case, the compensation is for development made on the affected land and not otherwise. In this case, the plaintiffs prayed for special damages of Tshs 100,407, 720/. This implies that, the compensation prayed for by the plaintiffs is Tshs. 100,407, 720/. The law is settled that, special damages must be proved. Pursuant to Exhibit PE2, the plaintiffs were directed to demolish the structures developed within 22.5meters from the centreline. In his evidence, PW2 deposed that, the suit land measures 4000 meters square meters. They were therefore, required to prove compensation arising from the effect of the said notice. While PW1 stated that half of the house was affected by the notice, PW2 did not tell the Court the extent which his house was effected by the notice to his house. As that was not 12 enough no valuation and evidence tendered to prove the special damages claimed in the plaint. On the other hand, DW1 claimed that only 2.5 meters of the suit land were found to have extended to the road reserve. Likewise, the defendants did not conduct valuation to establish the value of development made thereto. In that regard, the special damage of Tshs. 100,407, 720/ cannot be granted by the Court for want of proof. Another relief prayed for by the plaintiffs is general damage to the tune of Tshs. 151,000,000/=. It is trite law that award of general damages is in the discretion of court. The same is granted based on what the law presumes to be the natural and probable consequence of the defendant's act or omission. The plaintiff who suffers damage due to the wrongful act caused by the defendant is required to be put in the position he was before the occurrence of the said wrongful act. In other words, general damages are the probable consequence of the wrongful act complained of. It may include damages for pain, suffering, inconvenience and anticipated future loss, to mention but a few. In the instant case, the plaintiffs did not prove actual loss. As stated herein, Exhibit PE2 directed the plaintiffs to demolish developments made within 22.5 meters from the centreline of the road. PW1 stated 13 that half of the house was affected by the 1st defendant's notice. On his part, DW1 stated that the suit land was affected by 2.5 meters. There is no evidence to prove demolition of the development made in the suit land. Further, the plaintiffs did not prove as to how the 1st defendant's notice affected them. For instance, they did not state whether they were planning to develop land within 22.5 metres from the centreline of the road. In view thereof, I am of the view that the Court cannot exercise its discretion of granting the general damages. In conclusion, the Court hereby declares the plaintiffs as the lawful owners of the suit land. The reliefs for special damages and general damages are not granted for want of proof and basis. However, being the lawful owners of the suit land, the plaintiffs are entitled to full and fair, compensation if the suit land or part thereof is acquired by the 1st defendant. In such a case therefore, the 1st defendant should ensure that the land acquired is valued and compensation paid to the plaintiffs in accordance with the law. In the circumstances, each party shall bear its own costs. DATED at MUSOMA this 30th March, 2021. Court: Judgment delivered this 30th March, 2021 in the presence of the plaintiffs and Mr. Daudi Mahemba, learned advocate for the plaintiffs and the in the absence of the defendants. Right of appeal explained. E. S. Kisanya JUDGE 30/03/2021 Court: Original Certificates of Occupancy (Exhibit PE3) be returned to the respective owners and its certified copy retained in the file. E. S. Kisanya JUDGE 30/03/2021 15