DENNIS KESSY SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 120 OF 2023 DENNIS SIARA KESSY....................... 1st PLAINTIFF THADEUS ALOYCE AMANI.................................................. 2nd PLAINTIFF HURUMA SHOMARI LUPANGE........................................... 3rd PLAINTIFF HILDA FRANCIS NYAMBO (the administratrix of the estate of deceased Francis Nyambo).............. ................................. 4™ PLAINTIFF RACHEL NYANGOMA RUTTA................................................................... 5thPLAINTIFF HANS MASAMU....................................................................................... 6thPLAINTIFF HALIMA IBRAHIMISSA.................................... 7th PLAINTIFF AMRICK MAMUYA (the administrator of the Estate of deceased Asseri Zakayo Mamuya).......................................... 8thPLAINTIFF MARY EFATHA KIMAMBO........................................................................ 9thPLAINTIFF MOSHI SELEMANIIGIRO...................................................................... 10™PLAINTIFF SALEH ALLY SALEH............................................................................... 11™PLAINTIFF SEBASTIAN NGIMBWA......................................................................... 12™PLAINTIFF LIGHTNESS WILLIAM MUNGAYA...................................... 13™ PLAINTIFF MWINYI SAIDI MWINYI.................................................... 14™ PLAINTIFF RICHARD ROMAN KOBELO (the Administrator of the estate of the deceased Roman Saidi)......................... 15™ PLAINTIFF EVANCE ROMAN KAVISHE (the administrator of the Estate of deceased Roman John Kavishe)........................ 16™ PLAINTIFF MONICA ROMAN KAVISHE (the administratix of the estate of deceased Roman John Kavishe).................... 17™ PLAINTIFF SHEIKHA HILAL AMOUR.................................................... 18™ PLAINTIFF SULEIMANI KOMBO GHARIB (the administrator of the Of the estate of deceased Khalid Kombo Gharib)............. 19™ PLAINTIFF ABDULLAH OTHMANI SHEHE............................................. 20™ PLAINTIFF ALLY RASHID DAMIYE. ,.21STPLAINTIFF KHAMIS SAID KHAMIS 22nd PLAINTIFF , 1 I KLAM MOHAMED SALEH (the administratrix of the Estate of deceased Mohamed Saleh Suleiman).............. 23rd PLAINTIFF SEIF ABDALLAH KIMBWEMBWE....................................... 24th PLAINTIFF SKOLA STEPHEN SANGA ( the administrator of the estate of deceased Alatwinusa Msigwa)......................... 25™ PLAINTIFF MWANAHAMISI RAMADHANI MTORO............................. 26™ PLAINTIFF LEO ALOIS NINGA............................................................ 27™ PLAINTIFF MAIMUNA MOHAMED SULEIMAN....................................28™ PLAINTIFF LILIAN TIMOTHY KWEKA (the administrator of The estate of deceased Timoth Kundaseni Kweka)........... 29™ PLAINTIFF ZIADA OMARY KIMBWEMBWE (the administrator of the estate of deceased Omary Mohamed Kimbwembwe)..3O™ PLAINTIFF LIPINA ELIMELECK LUSANJA............................................. 31st PLAINTIFF VERSUS DAR RAPID TRANSIT AGENCY (DART)............................... 1st DEFENDANT PERMANENT SECRETARY, MINISTRY OF PRESIDENT'S OFFICE REGIONAL ADMINISTRATION AND LOCAL GOVERNMENT................................................ 2nd DEFENDANT HONOURABLE ATTORNEY GENERAL.................................. 3rd DEFENDANT JUDGMENT 20/8/2024 & 26/9/2024 A.MSAFIRI,J A total of 31 plaintiffs as named hereinabove have instituted this case against the above defendants. The plaintiffs claims that they are the lawful owners of the disputed land, administrators and administratix of the estate in the suit land which comprise of a total of 1500 square meters 2 and that they have been occupying the disputed land for several years without any encumbrances from the defendants or their agents. The plaintiffs' cause of action against the defendants jointly and severally is that they are seeking for this court's declaration that the actions by the 1st defendant of attempting to acquire the disputed land owned by the plaintiffs is illegal for not following proper procedures for acquiring land and compensation to the owners of land. The plaintiffs are also seeking for this court's declaration order that the valuation that was conducted by or under the instructions of the 1st defendant was unprocedural and illegal. The plaintiffs prays to this court for the following orders and reliefs against the defendants jointly and severally as follows: 1. The declaration that the attempts by the 1st defendant to acquire the suit land is illegal and did not adhere to proper procedures. 2. The declaration that the oral notices issued by the 1st defendant for the plaintiffs to sign the compensation documents so that they be paid and vacate the land in 30 days are void. 3. Declaration that any valuation on the suit land that was done by the 1st defendant is void. 3 4. The defendants should be ordered to conduct afresh a proper valuation on the suit land and make full and fair compensation to the plaintiffs for their parcels of land and any developments made thereon. 5. This Honourable Court be pleased to order general damages to be assessed by the Honourable court. 6. Costs of the suit be paid by the defendants. 7. Any other orders and reliefs as this Honourable court deem fit and just to grant. In their joint written statement of defence, the defendants jointly and strongly denied the plaintiffs' claims. They averred that the plaintiffs are no longer the lawful owners of the disputed property since acquisition of the same was lawfully conducted in respect of their properties, by giving the owners information, conducting valuation and every other procedure for acquisition. They prayed for the dismissal of the suit in entirety with costs. Before the commencement of the trial, three issues were framed and adopted by the court. The issues are: i) Whether the 1st defendant followed the procedures for valuation; ii) Whether the plaintiffs were lawfully compensated; Hi) Reliefs that parties are entitled to. L 11 4 At the hearing, the plaintiffs were represented by Messrs Barnaba Nyalusi and Chrisant Nyelo, learned advocates while the defendants were represented by Mr Mathew Fuko, Carolyne Lyimo, and Chevawe Mbelesero, all State Attorneys. For the plaintiffs, a total of thirty (30) witnesses gave their oral testimony in court and 36 Exhibits were produced to establish their case. On the defence side, four (4) witnesses gave their evidence and three (3) exhibits were admitted on their side. The 30 witnesses of the plaintiffs who gave their evidence forms part of the 31 witnesses who jointly instituted this matter. The 31st plaintiff never entered appearance to testify on his claims hence the court did not receive any evidence in regard to the 31st plaintiff one Lipina Elimeleck Lusunja. Since the one who alleges must prove the allegations by the evidence, it is my finding that the 31st plaintiff have failed to prosecute his case. The evidence of the 30 witnesses who are all plaintiffs was that they are the owners (individual ownership or by legal representations), of the suit land/land in dispute located at Ubungo Maziwa Area, Ubungo Municipality within Dar es Salaam Region. That the 1st defendant intending to acquire the said suit land, entered the suit land without furnishing any notice to the plaintiffs and initiated valuation of the suit land without sensitizing the 5 plaintiffs on the exercise and without giving them all the prerequisite forms. The witnesses further stated in their evidence that the 1st defendant demanded the plaintiffs to sign various documents which did not show the criteria used to assess the rates of compensation. That the 1st defendant gave the plaintiffs Valuation Form No. 3 which turned out to be unrealistic and with untrue data. All 30 witnesses said that the 1st defendant did not comply with the requirements of the law of valuation and computation of the size and development on the suit land for compensation purposes. Each of the witnesses stated that they are not against the intention of the Government to acquire the land in dispute but they all insisted that the procedure for acquisition and valuation was not followed and the compensation was not fair and according to the law. I will assess the available evidence while determining the issues in dispute. Now I will focus on the evidence in relation to the first issue as to whether the 1st defendant followed the procedures for valuation. According to the provisions of the Land Acquisition Act, Cap. 118 R.E 2002, any land may be acquired by the President where such land is required for any public purpose. The procedure for lawful acquisition. 6 involves stages which are but not limited to first; planning and decision to acquire land, second; information about the intention of acquisition which involves servicing of Notice to the interested party or owners of the particular land to be acquired, third; field investigations which include the exercise of valuation and, fourth; compensation. In the current matter, as observed earlier it is clear and not in dispute that the land in dispute was acquired for public purpose. The land laws particularly the Land Acquisition Act provides for the procedure for land acquisition for public purpose. Sections 6 and 7 of the Act provides for the requirement of issuing notice of intention to acquire the land to the owner or the persons with interest on such land. For easy of reference, Section 6 of the Land Acquisition Act provides thus; 6. If the President resolves that any land is required for a public purpose, the Minister shall give notice of intention to acquire the land to the persons interested or claiming to be interested in such land, or to the persons entitled to sell or convey the same, or to such of them asshall, after reasonable inquiry, be known to him. (emphasis added). Section 8 of the Act gives requirement of the notice issued to be served by various ways to the person interested in that land and the notice shall be published in the Gazette soon after service. 7 MG In the matter at hand, the plaintiffs through their evidence have claimed that they were never served the Notice as per the requirement of the law. All the witnesses claimed that they were never formally issued with the Notice of intention of acquisition and that they were not sensitized about the acquisition exercise but the 1st defendant's officers just invaded their places accompanied by the Street leaders and started the assessment and valuation. In their defence, DW1 Houston Selemani Mwakyoma, an Officer of the 1st defendant stated that the 1st defendant identified the disputed area as convenient for construction of the 1st defendant's Rapid Transport Bus Garage. That the 1st defendant under approval of the Government intended to acquire the area for that purpose in replacement of Jangwani Area where there was Rapid Bus Garage. That after approval, the 1st defendant issued a Notice to the Street Government about the approval of the Government for the acquisition. That the people on the disputed area were to be notified through their local street leaders. DW1 said further that after the notification, the meeting was convened by the Street Government Office whereby through that meeting, the residents and owners of the area in dispute were informed about the intention of the Government to acquire the area. 10- 8 DW2 Jovin Manyoto Ndimbo, the Street Chairman of Ubungo Kisiwani stated that for the first time he knew about the intention of the 1st defendant to acquire the disputed land from the Ward Executive Area who informed them about the DART Project. That next the 1st defendant Officers came at the Street office and told the street leaders about their intention of acquisition and requested to meet the 'Wananchi' for the purpose of informing them about the acquisition and educate them about the whole acquisition exercise. DW2 said further that following that they convened a meeting with all residents of the disputed area together with their leaders and 1st defendant officers and other Government Officers from the Ministry for Lands. He produces Minutes of the said meeting which was admitted as exhibit D3. Looking at the above evidence of DW1 and DW2, it is clear that no formal notice was issued to the plaintiffs either personally or through their local leaders but the residents (including plaintiffs) were informed about the intention of acquisition of the disputed land through the all residents meeting. Exhibit D3 shows that the 'Wananchi' meeting was conducted on 06/11/2021. . 9 The Minutes shows that the residents were informed about the intention of the Government to acquire their land for the Rapid Bus Project and that the valuation process will start on 08/11/2024. By this, on 06/11/2024 the residents were orally informed about the acquisition exercise and on 08/11/2024, the valuation exercise was to start. Here the evidence shows that no Notice was issued to the plaintiffs or their local leaders within the requirement of Section 6 and 7 of the Land Acquisition Act. Furthermore, no publication of the Notice in a Gazette was done as per the provisions of Section 8 of the same Act. The defendants have contended in their evidence that the requisite Notice was issued to every plaintiff through Form No. 69 which was admitted collectively as exhibit D2. However I find that the said Form does not suffice Notice. I have read one of the Form No.69. It shows that the owners were being informed about their rights to compensation after their lands were acquired. The said Land Form No 69 was not dated but all the tendered Forms No 69 shows the date at the foot of the Form to be signed on 08/11/2021. This was a date after the meeting was done. This Form No.69 is not a Notice nor is it a Notice published in the Government Gazette. At io Another stage in the process of acquisition is as observed earlier, going to the field for assessment and valuation of that particular land. The 30 plaintiffs gave evidence that the valuation exercise was tainted by irregularities. The said plaintiffs claims that there was no proper measurements of the land and that the amount assessed for compensation was not realistic. That the Valuation Form no.3 were not properly filled as required by the law and most of the form did not indicate the total area that was valued which raise concern about whether proper computation was done. It was further stated by all witnesses that the 1st defendant used tape measure in measurement. In their testimony, the plaintiffs from PW1 -PW30 claimed that their areas were inaccurately measured, the measurement was done by tape measure resulting to fewer square meters than the actual size of their areas. The plaintiffs claimed further that they were given blank Valuation Form No.3 by which they were instructed to write their names and signed and the forms were collected and they were later returned already filled by the officers of the defendants. PW1-PW30 said further that when the Valuation Forms No.3 were returned, some of their valuable items which were supposed to be valuated were not included in the said forms. That such items included< 11 wooden doors, aluminium windows, grills, tile floors, toilets sinks some of the rooms were not added in the items. The witnesses said that the size of their areas recorded in the valuation form were not actual size as they have individually measured their areas. Each of the plaintiff produced their valuation Form No 3 which were admitted as exhibits P2,P4-P26, P29-P35. The original copies of the valuation forms no. 3 were tendered by DW1 and admitted as exhibit DI collectively. I have read the said Valuation Forms No.3. As said earlier, the original forms were admitted collectively as exhibit DI. Although the other defects/ irregularities like the number of the items which were not valued and not included in the forms could not be proved, indeed the Forms were not signed by the surveyor who supposedly measured the areas in dispute. All the forms are blank on the area which was to be filled by the surveyor by showing his name and signature. The forms were signed by the owner of the land, the leader of the area and the Valuer but was not signed by the Surveyor. In his evidence, DW1 stated that all the procedures for valuation were followed. He said that the assessment and valuation was done in the presence of the land owners and the local leaders. That the measurement and valuation was done in presence of all parties and all particulars were filled at the concerned area and witnessed by the all parties. He said- 12 further that what was not filled at the time of assessment was the size of the area which was filled later after the surveyor of the area has calculated the size of area by using special equipment at the office. DW1 said that the measurement of the house was done by using tape measure but the measurement of the land was used by special survey equipment (QPS or RTK). He tendered a schedule book which was admitted as exhibit D2. The witness DW1 said that filling Form no. 3 is not a conclusive proof that the compensation has been paid. He said further that Valuation Form is filled by the Valuer but the Land Surveyor filled different Form by showing the size of the land and how it was computed. However, the size of the surveyed land has been filled in the Valuation Forms No 3 but as already observed, the area of the surveyor is blank (not filled). I have looked at the Land Survey Forms which were attached in exhibit D2 named as the Compensation Book or "Daftari la Uthamini wa Fidia" Some of the Survey Forms have omissions which are fatal. In those Forms, some of them are not filled by the Surveyor. Only the owners and the local leaders are shown to fill the forms but the surveyor's names and the signatures are blank. The said survey forms does not show the name of the Surveyor and the kind of the equipment which was used in the survey/^. 13 measurement of the size of the land. This creates doubt on how the calculation/ computing the size of the land was reached. Sampling some of the plaintiffs where the Survey Forms were not properly filled are Monica Roman Kavishe (17th plaintiff), Dennis Siara Kessy (1st plaintiff), Seif Abdallah Kimbwembwe, (24th plaintiff) and Rachel Nyangoma Rutta( 5th plaintiff). In the above analysis, I find that there were irregularities in the valuation exercise which renders the whole exercise not valid. The irregularities include the lack of Notice of acquisition from the 1st defendant to the owners/ people with interest on the land in dispute as per the requirement of the law, as the local meeting is not a Notice. Another irregularity is improper filling of Valuation Form No. 3 and some of the Survey Forms which creates doubt on the valuation exercise and also on the correctness/reality of the amount reached for compensation. The first issue is answered in the affirmative that the procedures for valuation were not properly followed. The second issue is whether the plaintiffs were lawfully compensated. Since the court has found that the procedure for valuation was not followed, then it goes without saying that in the place of irregular procedure for valuation, there cannot be fair compensation as per the 14 requirement of the law. For the compensation to be fair, the procedures for the land acquisition as required by the law has to be met. I have already analysed those procedures/stages which are necessary so as to arrive at a fair compensation. The defendants have argued through their counsels in the final submissions that some 13 plaintiffs out of 31 have received the compensation and did not raise any objection. But these plaintiffs expressed their dissatisfaction with the whole process and said that they opted to receive the money out of fear of losing everything. Also, the fact that 11 plaintiffs received the compensation money does not legalise the exercise which was conducted in non-compliance with the law. The second issue is answered in negative. The third issue is on the reliefs' entitlement. The court enters the decision in favour of the plaintiffs. The court declares that the procedure for the land acquisition by the 1st defendant did not adhere to proper procedures as per the requirement of the Land Acquisition Act and other laws. This procedure includes the issuing of proper Notice, and Valuation process. The court declares that since the 1st defendant did not adhere to the proper procedure for land acquisition, then any valuation done on the suit land was void. AU • 15 The court declare that the whole exercise of the acquisition of land in dispute was null and void and it is hereby nullified. If the defendants still wish to acquire the suit land, then they should adhere to the lawful procedures. On the order of general damages, I hesitate to grant the same simply because I have no base in the evidence upon which I can award the plaintiffs the general damages. In the case of Anthony Ngoo & Davis Anthony Ngoo vs Kitinda Kimaro [2015] TZCA 269 it was held thus; "The law is settled that general damages are awarded by the trial judge after consideration and deliberation on the evidence on record able to justify the award. The judge has discretion in the award of general damages. However the judge must assign a reason..." I have gone through the whole evidence of the plaintiffs and I have not seen any evidence justifying the award of general damages to the plaintiffs. The court hereby enters the case in favour of the 30 plaintiffs except for the 31st plaintiff Lipina Elimeleck Lisanja. It is hereby ordered as follows:- i. The court declares that the procedure for the land acquisition by the 1st defendant on the suit land located at Ubungo Maziwa Area, Ubungo Municipality, within Dar es Salaam Region did not adhere. 16 to proper procedures as per the requirement of the Land Acquisition Act and other laws. ii. The court declares that the whole exercise of the acquisition of suit land located at Ubungo Maziwa Area, Ubungo Municipality, within Dar es Salaam Region was null and void and it is hereby nullified. iii. If the defendants still wish to acquire the suit land, then they should adhere to the lawful procedures. iv. The court refrain from awarding general damages to the plaintiffs as there is no base in the evidence for the assessment of the general damages sought. v. Costs of the suit to be borne by the defendants. It is so ordered. Right of Appeal explained. A.MSAFIRI JUDGE 26/9/2024 17