aidia hamis juma 2 others vs the registered trustee of the national social security fund nssr 2 others 2021 tzhclandd 6907 29 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. Ill OF 2018 ADIA HAMIS JUMA.................................................. 1st PLAINTIFF KASSIM ABDALLAH................................................. 2nd PLAINTIFF ABBAS SABUKUKU................................................. 3rd PLAINTIFF VERSUS THE REGISTERED BOARD OF TRUSTEE OF THE NATIONAL SOCIAL SECURITY FUND(NSSF)......... 1st DEFENDANT THE ATTORNEY GENERAL........................................... 2nd DEFENDANT PERMANENT SECRETARY MINISTRY OF LAND, HOUSING AND SETTLEMENT......................... 3RD DEFENDANT Date of Last Order; 27/9/2021 Date of Judgment:; 29/10/2021 JUDGMENT T, N, MWENEGOHA, J; The plaintiffs in this case are praying for judgment and decree against the defendants as follows: a) A declaration that the defendants'actions of seeking and taking the Plaintiffs' lands were contrary to the laid down procedures and are a violation of the plaintiff's ownership rights. i b) A declaration that the defendants had no legal right to take over the plaintiff's lands following proper procedures laid down by the law. c) >4/7 order requiring the defendants, its principals, agents, valuers, and work persons to involve fully and transparently the plaintiffs in any process that might lead to transfer or acquisition of their lands to the defendants; d) An order for damages to the tune of 150 million shillings against defendants for violating the land rights of the plaintiffs and cause psychological and mental torture. e) An order compelling the defendants to pay the 1st plaintiff damages to the tune of 50 million shillings for the damages done on her property; f) The defendants be ordered to pay compensation to the plaintiffs to the tune ofnot less than 250,000,000/= each as monetary value for their lost and landed properties. g) Commercial interest of (f) and (g) above from the date ofjudgment to payment day. h) Commercial interest on (h) from 14 September 2013 to the payment day; i) Costs of this suit j) Any other order or reiief/s this court may deemjust and fair to grant. At the hearing of the suit the plaintiffs were represented by Miss. Mariam Mtalitinya, Advocate; the defendants were represented by Mr. Charles Mtae assisted by Mr. Frank Mgeta, State Attorneys. 2 According to the record the following issues were framed and agreed by the parties in respect of the suit: 1. Whether the rate of compensation ofTshs. 30,000/- per square metre, was fair and adequate? 2. To what reties are the parties entitled to? The 1st plaintiff proceeded to give evidence as PW1, where in her testimony she said that she is a house wife, a resident of Vijibweni, Kigamboni. That she owned about % acre plot of land on which she constructed a house. PW1 continued to testify that, she purchased the e said plot of land from Bi. Mwanamkasi, through a sale agreement (Exhibit Pl) entered on the 25th April 2002. She testified further that, the said plot of land was acquired by NSSF for the purposes of constructing a bridge connecting Kigamboni and Kurasini (herein after the Nyerere Bridge). PW1 further testified that in 2012 all people who were affected by the project of constructing the Nyerere Bridge at Kigamboni, were called by the street chairman one Athumani Kiboko to proceed to the ten-cell leader known as Hamis Christopher, for a meeting.PW1 continued to testify that she met her neighbours and other people from National Social Security Fund (herein after the NSSF) including Engineer Mataka who introduced himself as a project manager for construction of the Nyerere Bridge, also he went on introducing the contractors who were Chinese nationals. PW1 testified further that in that meeting they were informed by Eng. Mataka that, their plots of land will be acquired for the purposes of constructing the said bridge. She testified that they were informed that after the acquisition they will be compensated and be allocated new plots. PW1 also testified that in October 2012 she received a letter dated 27/10/2012 3 (exhibit P2) inviting her to a meeting scheduled to take place on the 31/10/202 at the Ward Executive Office (herein after the WEO office). That many people participated to that meeting including the counsellor and the Land officers from the Ministry of Land. PW1 testified that the officers from the land ministry explained the manner in which the evaluation of their properties will be carried out. PW1 testified that they were told that their land will be acquired at the costs of 35,000/= per square meter. PW1 continued to testify that they questioned on how the valuers arrived at the said amount and that they (the plaintiffs) recommended the price to be raised to the tune of Tsh. 80,000/= per square meter, due to the fact that their colleagues at Ferry were compensated by TAMESA to the total amount of 80,000/= per square meter as their plots too, were located close to the beach. PW1 testified further that the parties to the said meeting never agreed on the valued price per square meter therefore, the meeting was adjourned to a next date. PW1 testified that they never convened another meeting instead in November the street chairman distributed evaluation forms and those who were satisfied with the whole process, took the forms while some of them including the plaintiffs refused to participate in the evaluation process. PW1 said that, the plaintiffs wrote a letter to the Ministry of Works complaining about the situation and they were told to consult the Ministry of Land. PW1 said further that, the plaintiffs presented their complaints to the Ministry of Land and continued communicating with the Ministry of Land through letters dated 26/11/2012, 02/1/2013 and 13/02/2013 (tendered to court as exhibits P3). That in the letter dated 26/11/2012 the plaintiffs were complaining that during the acquisition of their plots, the proper procedure for acquisition 4 was not followed and that the amount of Tsh. 35,000/= per square meter was not fair and was inadequate for their plots. PW1 continued to testify that they were told to consult the Ministry of Land and that on 02/01/2013 the plaintiffs wrote to the Ministry of Land without any response, but the Ministry proceeded to authorise payment to those who were satisfied with the proposed price per square meter. PW1 continued to testify that on 09/11/2013 about 1/4 of her plot was cleared by tractors and that on 22/11/2013 she decided to write a demand letter (exhibit P4), to the constructing company expressing her intention to sue them for the damages they caused. Later on, in December she was invited by the chief government valuer to discuss her complaint and that on the 19/12/2013 together with her colleagues attended that meeting but there was no any agreement reached and another date was scheduled for 13/1/2014. She contended that despite those efforts, on the 20/12/2013 the valuers went to their plots, assessed the plaintiffs' properties in their absence. Aggrieved by the act the plaintiff's decided to file a case against the 1st defendant, on the 8/1/2014 the court granted an injunction in favour of the plaintiffs but on the 1st March 2014 the entire area was destroyed. She said that in the 2018 the plaintiff's case was withdrawn with leave to refile, in order to join the government. Consequently, the current suit was filed. PW1 further testified that her area was equivalent to 3675 square meters that if compensation was to be paid at the rate of Tsh.80,000/= per square meter she was entitled to be compensated the total amount of Tsh.294,000,000/=, she had planted vegetables like Mchicha, Bamia, 5 Matembele and Biringanya, no notice was issued before demolishing her properties. PW1 prayed for this court to declare that the compensation amount of Tsh.35,000/= per square meter was not fairly arrived at and that was not adequate for her land, the defendants be ordered to pay the total amount of Tsh.294,000,000/= as a compensation for the acquisition of her land, payment of the total amount of TSH. 150,000,000/= as a compensation for the mental torture and harassment she went through, lastly, she prayed for the costs of this suit. When cross examined, she admitted not to have any evidence to prove the alleged mental torture and harassment. PW2 one Kassim Abdallah Juma testified to this Court that he is a retiree and that he is among the people affected by the project of constructing the Nyerere Bridge Kigamboni, as his plot of land was acquired in that process. That the said plot of land was equivalent to one acre, that is 4900 square meter and that he purchased the same from Philemon Burhan (tendered the sale agreement as exhibit P5). He continued to testify that in October 2012 he was invited vide a letter (exhibit P6) to a meeting for the purpose of discussing the acquisition of their plots and the assessment of the same. That the valuers informed them about the rate of compensation per square meter, that was Tsh.35,000/= per square meter, of which the plaintiffs were dissatisfied and unsuccessful proposed a new rate of 80,000/= per square meter. He stated that this proposal was declined by the valuers and no consensus was reached, consequently, the meeting was adjourned for a week, but it was never convened. That on the 20/11/2013 the street executive officer issued the valuation forms 6 to the people affected by the project but PW2 said that he did not participate in the process as he was dissatisfied with the proposed rate per square meter. PW2 testified further that together with his colleagues, who were dissatisfied with the proposed rate per square meter, consulted the government as exhibited by exhibit P3. That on the 19/12/2013 they were invited to the chief government valuer for further discussion concerning the proposed rate per square meter, but their meeting was ineffective, and it was postponed until 13/1/2014, however on the 20/11/2013 the valuers were sent to his plot and evaluated the same in his absence, but in the presence of the ward leader. He testified that the same thing occurred to his colleagues and that is why they decided to file the suit before this court, which was later withdrawn with the leave to refile, after joining the government. He said further that before acquisition of his land he started developing it by constructing a house which was on a lintel level, planted trees like mchikichi, lemons and eucalyptus trees also that there was a hut for a guard who looked after his construction materials. He added further that the construction of the said house costed him about 42,000,000/=. That in accordance with the size of his plot he was supposed to be compensated the total amount of Tsh.392,000,000/=. He prayed the court to declare that the rate proposed was not adequately as they were not involved in the valuation process, order that he be compensated by the defendant the total amount of Tsh. 392,000,000/=for his land and 42,000,000/= for the house. When cross examined, he said he did not have any evidence to prove the alleged estimated value of his house. 7 PW3 Abbas Sabukuru, 61 years old a retired employee of the Tanzania Defence Forces, testified that he filed this suit against the acquisition of his plot of land by the government as he was inadequately compensated. He testified that he purchased his plot of land from Mzee Juma Ramadhani (tendered the sale agreement as exhibit P7) on the 25/5/1999, that his area measured 1Z> acre (equivalent to 2450 square meter), he was living in the area as he managed to construct a 3 bedroomed house and a hut of 2 rooms, planted trees that is 6 mikenge and 2 stafeli. He further reiterated what has already been testified by PW1 and PW2 and added that if compensation was to be paid at the rate of Tsh.80,000/= per square meter he was entitled to be compensated the total amount of Tsh.231,000,000/= He prayed for the court to declare that he be compensated by the defendants the total amount of Tsh. 231,000,000/= and 35,000,000/= as the compensation of his plot of land and the house, 150,000,000/= as the compensation for the psychological torture as he testified that he is forced to live with his in-laws. In cross examination, he stated that he did not have any evidence to prove the alleged estimated value of his house and psychological torture. The first witness for the defendants was Juma Said Jingu (DW1). He testified that he is employed as a valuer to the Ministry of Land. That during the acquisition of the plaintiff's plots of land he participated in the process as a valuer (leading his team). That they followed the requisite procedure of evaluation. He stated that, they started the process by informing the resident of Vijibweni especially those affected by the project (herein after the affected residents) about the acquisition of their plots. 8 That they also inspected the area and later on issued form(s) number 69 to the affected residents, a form which is mainly used for claiming compensation. He stated further that, after the inspection, the compensation schedule was prepared so as to be authorised by the Ward officers, District officers (by the authorised land officers and District Commissioner) and the Regional Commissioner. He testified that after being authorised, the compensation schedule (jedwari la kulipa fidia} was forwarded to NSSF for further consideration, which was paying the Vijibweni residents whose properties were acquired in the process of constructing the Nyerere Bridge. DWI continued to testify that after the completion of the initial preparation, the plaintiffs were dissatisfied with the rate of payment per square meter proposed by the government according to the market value of their area, which was Tsh.35,000/= per square meter. He said that the plaintiffs unsuccessful proposed the amount of 80,000/= per square meter. That later on, the valuers inspected and examined the properties in order to determine its values. That all these processes were conducted in the presence of the property owners except the plaintiffs who refused to participate. Therefore the valuers proceeded to check and examine the plaintiffs' properties in their absence (he tendered a letter of implementation of the valuation of the properties owned by the residents who objected to be evaluated, as exhibit DI in accordance with Sections 65 (b), and 67(1) (c) of the Tanzania Evidence Act, Cap 6 R.E 2019 (herein after the Evidence Act), because at the time he was testifying the original document was missing. 9 He continued submitting that the properties of 114 families were assessed and compensated at the rate of 35,000/= per square meter of the plots of land, buildings and crops and plants. DW2, George Munyaga, testified that he is employed by the NSSF as an engineer in the project department. He said that he was aware of the dispute between the plaintiffs and the defendants which arose due to the acquisition of the plaintiff's properties/land during the construction of the Nyerere Bridge at Kigamboni, around Vijibweni area. He said that the plaintiffs were dissatisfied with the rate of the amount of 35, 000/= which was paid per square meter and that they wanted to be paid compensation at a rate of Tsh. 80,000/= per square meter. He testified further that there were 121 families to be compensated, and at the end only 3 families refused to participate in the process but through their Ward and Street leaders the assessment of their properties was conducted and they were included in the payment schedule (jedwari la malipd). He testified that as the plaintiffs refused payment, their compensation, the total amount of 149,761,400/= was on the 17/5/ 2014 remitted to the Regional Administrative Secretary of Dar es Salaam region for custody. He tendered the payment voucher as exhibit D2. DW2 further described the payment analysis of the amount deposited to the Regional Administrative Secretary of Dar es Salaam region as follows; Faizi Twaha Tsh. 89,007,800/=, Abbasi Sabukuru 37, 140, 100/= and Adia Hamis Juma 23,613,500/= . He stated that he did not know why Khamis Abdallah's name did not appear in the list. io Having narrated the evidence by the parties herein, and having gone through the final submissions by Counsels, I will now endeavour to consider the issues as they were raised seriatim. As to the first issue whether rate of Tshs. 35,000/= per square meter was free, fair and adequate the plaintiffs contended that the amount was insufficient in comparison to the value of their land. The plaintiffs believe that a payment of Tshs. 80,000/= per square meter is fair amount due to their plots being close to the beach as revealed by the testimony of PW1. The said testimony was backed up by PW2 and PW3 who argued further that even the plots owner of Kigamboni area, which is also near the beach were paid 80,000/= per square meter even though they declared not to have evidence of such claims during cross examination. In defending their case, defendants brought a leading valuer as a witness to testify that the amount offered was fair as it was given through scientific valuation and not guess work. The witness DW1, showed the Court every step that the evaluation involved to getting final determination on what should be paid. Among the things DW1 declared to have been done is consideration of market value of the place which was guided by chief valuer. DW1 further revealed in his evidence that all properties were valuated and all residents were issued payment. He revealed that other residents accepted the payment with the exception of the plaintiffs. Moreover, DW2 also backed up the testimony of DW1 and confirmed that valuation was done and all plots were compensated. li DW2 further told this Court that the plaintiff refused payment and as a result their payment was remitted to RAS for custody. DW2 also declared that he does not recognize the 2nd plaintiff. I would like to immediately address on the 2nd plaintiff by noting that the non-recognition of the 2nd plaintiff is a new issue raised during the testimony of DW2. It was not contended anywhere else that the 2nd plaintiff is not part of the residents of Vijibweni to be compensated and moreover, in their WSD, the defendants seem to acknowledge him. Furthermore, the defendants failed to submit to this Court a list of Vijibweni residents who had refused to be valuated and whose valuation was done under the ward and street leader. If the defendants had an opinion or issue that the 2nd defendant was not a party to this case they would have raised a preliminary objection or they would have raised such as an issue during pre-trial conference so that the court could determine the matter accordingly. Now in considering the first issue on whether the compensation is unfair, this Court is of the view that the plaintiffs ought to bring sufficient evidence to reveal how compensation was not fair. S. 110 of the Evidence Act, provide that the burden of proof lies to one who alleges. The plaintiffs, being complaining that the compensation is not fair ought to bring to Court sufficient material to reveal how the compensation was not fair. The plaintiffs failed to bring to Court any evidence to prove that the rate of Tshs. 35,000/= per square meter was not fair and inadequate. 12 Moreover, the plaintiffs brought sale agreements which were admitted to Court as Exhibit Pl, Exhibit P5 and Exhibit P7. Having examined these exhibits thoroughly, it is revealed that they do not specify the sizes of the plots, the description of what is contained in the plots and does not even reveal the area location of the plots. It would have been prudent of the plaintiffs to bring to Court evidence and reasons as to why their plots at Vijibweni is worth 80,000/= per square meter different from other residents of Vijibweni who accepted 35,000/=. The plaintiffs did not rely on market value of Vijibweni but referred to what they believe was a value paid to Kivukoni residents. This is opposite of what the defendants did. As they accounted reasons for their conducts showing the process for evaluation, amount paid for land and its fixtures and showing the rest of residents accepting payment as fair. In the matter of Hemedi Said Vs. Mohamed Mbillu (1984) TLR113, it was held that it is not about a number of witnesses but rather strength of evidence. That the one with heavier evidence must win. Therefore, if we were to weigh the above situation between the defendants who brought valuers, revealed the process used, brought the amount paid and reasons for reaching such amount, brought a list of more than 100 people who were satisfied with the payment and the plaintiff who brought mere statement that what was paid is not fair and the sale agreements with little information, the scale will certainly tip against the plaintiffs. Therefore, this Court finds the valuation to be free, fair and adequate. 13 On the second issue as to the reliefs parties are entitled to; this issue will not take much of my time. As I have ruled that the compensation to the plaintiffs was free, fair and adequate. Therefore, the plaintiffs are entitled to be paid the amount they were valued against, at the rate of 35,000 per square meter selected for Vijibweni area. I therefore order for all the plaintiffs to be paid their entitled compensation as valued against their property at the Government chosen rate of 35,000/- per square meter accordingly. I make no order as to costs. It is so ordered. JUDGE 29/10/2021 14