director general tanzania railways corporation trc v daudi manga mayugwa and iman ramadhan katurumla and 23 othersi 2023 tzhc 19574 28 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF TABORA

AT TABQRA LAND CASE NO. 1 OF 2022 DIRECTOR GENERAL, TANZANIA RAILWAYS CORPORATION (TRC)...............APPLICANT

VERSUS DAUDI MANGA MAYUGWA.............................................. PLAINTIFF AND IMAN RAMADHAN KATURUMLA AND 23 OTHERS ......DEFENDANTS

RULING Date of Last Order: 27/07/2023 Date of Ruling: 28/07/2023 MATUMA, J, When this suit was still pending for 1st Pretrial conference, the Applicant herein brought an application against the Plaintiff and the Defendants so as to be allowed to acquire the suit land pending determination of the rightful owner thereof because the suit land is needed by the Government for the ongoing project of Standard Gauge Railway operations. At the hearing of this application Mr. Vicent Tangoh learned Principal State Attorney and the Principal officer of the Applicant represented the Applicant while Mr. Emmanuel Musyani learned advocate appeared for the defendants except the 16th defendant. The 16th Defendant was absent despite of having been dully served. Mr. Tangoh learned Principal State Attorney submitting on the prayer stated that the Government of Tanzania is on contract with a Turkish Construction Company namely Yapi Merkezi Contractors Company for the construction of Standard Gauge Railway which passes through Milembela Ward in Uyui District within Tabora Region. That at that particular area herein above named, the government acquired the land from their respective owners (inhabitants) to meet the need of the Contractor in accordance to the contract in which the government has an obligation to acquire land for the project. He went on that the requisite valuation was made but before

they could pay the compensation for the inhabitants to vacate from the land at that respective area they learnt that there is this suit in which ownership of the land is contested between the Plaintiff herein and the Defendants. In that regard they have failed to pay the compensation which has resulted into the stagnation of the project and financial consequences against the government in which the Contractor has already penalized the government at USD 65,445,891 which is equivalent to Tshs. 160,342,432,950/= for the delay of the project because the government has failed to acquire the requisite land. The learned Principal State Attorney further submitted that the Contractor has already issued the notice to refer the matter to Dispute Adjudication Board which shall raise up some more costs against the government. \ 2 With all these, the learned Principal State Attorney prayed that the Applicant be allowed to deposit in the court account the value of the compensation relating to the land in dispute, the value of unexhausted improvements to the inhabitants and acquire the requisite land so that when this suit is finally determined the would be declared owner shall take his compensation from the court account. He argued that the Applicant's prayer is not prejudicial to either party because in the end result it is the Decree holder who will take the compensation relating to the

land in dispute. Mr. Emmanuel Musyani and Kanani Chombala learned advocates for the Plaintiff and the Defendants respectively did not dispute the Applicant's prayer. They only argued that the value of compensation to be deposited in court should not only be that which relates to the value of the land but also that which is categorized in the valuation schedule as "Posho" and "Mengineyo" (Disturbances and other expenses) because the parties are at issue as to whether disturbance and other expenses are attached to the land and therefore payable to the owner of the land or it is payable to the one with unexhausted improvements on land and therefore attached to the developments made on land. They did not dispute that the current inhabitants who have been identified on the suit land be paid compensation relating to the value of their respective houses and crops so that they immediately vacate to accord an opportunity to the Applicant to acquire such land and give it to the contractor for the project to continue. 3 I have heard the submission of both parties who are not at issue in the Applicant's prayer and considered well the Applicant's letter which is exhaustive on the reasons behind this application as repeated by Mr. Vicent Tangoh learned Principal State Attorney in his submissions. I find that it is in the interest of justice to grant the prayer because the applicant has

already suffered loss at the tune of Tshs. 160,342,432,950/= being a penalty for the delay to acquire the suit land for the contractor to go on with the project. It is in the construction contract between the Government of Tanzania and the Turkish Company that the Government has an obligation to acquire land which shall be appointed by the contractor for the project and that failure or any delay to handle the requisite land to the contractor will be penalized. The contractor having been reached at Makutopora-Tabora appointed a piece of land at Milembela Ward within Uyui District for the construction of passengers and freight station (Stendi ya abiria na mizigo) but that piece of land is in occupation by the people some of whom are the litigants herein. The Government took all requisite legal steps to acquire such land from those people by making the valuation in accordance to the law and is in need to pay the said compensation so that the said land is vacated for the project. Payment of compensation has however been difficulty not only to the herein litigants because of the dispute over the ownership thereof but also to those whose respective lands are not in dispute. Therefore, this dispute is affecting some other innocent people who are not part to this suit because the fund for compensation cannot be released unless the whole appointed land is cleared from any dispute.

— 4 The government/Applicant shall further suffer other irreparable loss in case there is any further delay to handle the land to the Contractor. There is no any interest to await the end result of this dispute for the government to acquire the suit land. This is because, provided that all requisite legal steps for acquisition of land have been taken, neither party shall have any legal right to stop the State from taking such land for the public interest at large be it today, tomorrow or later. That is in accordance to the provisions of section 3 and 4 of the Land Acquisition Act chapter 118 R.E 2019 which provides for compulsory acquisition of land by the State for public purpose including but not limited to; exclusive government use, general public use, for any government scheme, for social service or housing. In that respect it is better and in fact it is in the interest of justice that this application be granted so that the suit land is acquired for continuation of the railway project which is for the benefit of the society as a whole. The parties herein as rightly argued by Mr. Tangoh (PSA) will not be prejudiced anyhow because the requisite compensation shall be paid to he who shall finally be determined and declared as the lawful owner of the suit land. As I have said earlier, the other parties herein are not contesting the prayer. They only urged this court to direct

that along with the value of the land to be compensated, the value of compensation for disturbances and other expenses be as well deposited in the court account because the parties are contesting as to who is entitled to such compensation. 5 In the circumstances and by considering that this court has jurisdiction under section 95 of the Civil Procedure Code Cap. 33 R.E 2019 to make any such order as may be necessary for the end of justice, I do hereby grant this application and order as follows; i) The Applicant should deposit in the court Account such compensation relating to the value of the land, disturbance (Posho) and other expenses (Mengineyo) which shall be paid later to either party herein at the end result of the suit as shall be determined by the court. ii) The Applicant should pay compensation of the unexhausted improvements on the suit land relating the houses and crops to the current inhabitants thereof for them to vacate from the suit land. iii) Once compensation as per paragraph (ii) supra is fully paid, the inhabitants to vacate immediately from the suit land for the applicant to deal with it in accordance to her contract with Yapi Merkezi Contractors Company. iv) The Applicant to present in court the schedule of compensation deposited in the court account and proof of such deposit for easy management of the fund up to the final payment to its

determined beneficiary. v) The compensation referred herein shall be paid into NMB Account no. 9921169706 with an Account name of TA BORA JUDICIARY DEPOSIT ELECTRONIC ACCOUNT. No orders as to costs. It is so ordered. _ _ 6 Court; This ruling is delivered in Chambers in the presence of Mr. Vicent Tangoh learned Principal State Attorney for the Applicant and in the presence of Mr. Emmanuel Musyani learned advocate for the Plaintiff and who also holds brief of Mr. Kanani Chombala learned advocate for the defendants except for the 16th defendant Asha Fundi who is absent. 7