gaudensi george milanzi 19 others vs masasi district council 2 others 2023 tzhc 21541 29 september 2023

THS U WTMD REPUBLIC OF TANZANIA

JUDICIARY IN THE HIGH COURT OF TANZANIA . (MTWARA DISTRICT REGISTRY) AT MTWARA' LAND CASE NO 1- OF 2021 GAUD ENS1 GEORGE MILANZI ............. 1st PLAINTIFF MOSENSI ALLY KATAMBO ............... ...............2Nr) PLAINTIFF OMARI SELEMANI KAJIWA .......................... ........... ..............3 rd PLAINTIFF DESTERIA SELEMAN MALWESO ........... ................................4th PLAINTIFF MAUA ABDALLAH KIPALA ...........5th PLAINTIFF ESHA SAIDI LUSINGA ............... ......... ..................... ...... ....... 6th PLAINTIFF ZAINABUALLY MFAUME................... ...7th PLAINTIFF JOHA SAIDI MKOMWELE .......... ................ .8th PLAINTIFF MOZA AHMED NG'UTO ................ ....... .............9th PLAINTIFF MAGIDALENA DAUDI YAKOBO ................... ...10™ PLAINTIFF MARISEDESI HELIEASI AMLIMA....... ............ ........11™ PLAINTIFF KATARINA ABDALLAH LUSINGA ........... 12™ PLAINTIFF ABDALLAH SELEMANI ............ ,13™ PLAINTIFF SAIDI NANGOMWA ............................................... ...............11™ PLAINTIFF TRESIA PETRO.................................... ........................... ...15™ PLAINTIFF GEOFREY ABILAHI............ ........... 16™ PLAINTIFF ESHA BONAMALICHILALA........... ........................ ...,.,.17™ PLAINTIFF SOFINA SAIDI MOHAMED ................. .........18™ PLAINTIFF SOPHIA VICTOR MALINGA............................ 19™ PLAINTIFF BIZENA ABDALLAH KIPALA ............................................... 20™ PLAINTIFF WZS MASASI DISTRICT COUNCIL.................... ........Ist DEFENDANT THE ATTORNEY GENERAL.................... =....... ................. .....2™- DEFENDANT

THE VOCATIONAL EDUCATION AND TRAINING AUTHORITY COLLEGE (VETA).............. ............ ......... ............. ............... ...... .......,3rd DEFENDANT Page 1 of 15

JUDGMENT 3/S & 2^2023 LALTAIKA, j. I have always wondered why drafters of the Constitution of the United Republic of Tanzania of 1977 (as amended from time to time) chose to put so much weight on avoidance of technicalities in dispensation of justice, Such weight is reflected in the inclusion of a specific provision (sub article) on avoidance of technicalities in the Supreme Law of the Land. For avoidance of doubly this is what the Constitution says, loud and dear: 1Q7A.~ (1) N/A (2) In- delivering decisions in matters of civil and criminal matters in accordance with the laws, the court shall observe the following principles, that is to say - (a)--(d)... N/A (e) to dispense justice without being tied up with technicalities,,, Wouldn't that have been enough to forewarn judicial officers of being submerged in technicalities In a STATUTE such as the Civil Procedure Code? Why would one go for the mother of all laws? To appreciate such wisdom and give due credit to various offices promoting legal aid in our country, one needs to encounter a situation like the matter at hand. As will be apparent in this judgement, had it not been for the "big picture" approach and avoidance of technicalities as provided by our supreme law, it wouldn't have been easy to obscure justice or separate it from the chuff of legal entanglement. The plaintiffs herein: GAUDENSI GEORGE MILANZI, MOSENSI

ALLY KATAMBGy OMARI. SELEMAN.I KAJIWA, DESTERIA SELEMANI MALWESO, Page 2 afIS' MAUA ABDALLAH KIPALA, ESTHER SAID! LUS1NGA, ZAINABU ALLY MFAUME, JOHA SAIDI MKOMWELE, MOZA AHMED NG'UTO, MAGIDALENA DAUDI YAKOBO, KATARINA ABDALLAH LUSINGA, MARISEDESI HELIEASI AMLIMA, ABDALLAH SELEMAN1, SAIDI NANGOMWA, TERES!A PETRO, GEOFREY ABILAHI, ESHA BONAMALI CHILALA, SOFINA DAUDI MOHAMED, SOFIA VICTOR MALINGA, SOPHIA VICTOR MALINGA and BIZENA ABDALLAH K.IPALA knocked the doors of this court way back on the 5th of March 2021 seeking the foliowing orders/ reliefs against the respondents: (0 Payment in monetary compensation at the tune of Tanzanian Shillings one hundred million (100}000f000f~) for unlawfulevicting (sic!) the Plaintiffs in their land without compensation. (ii) Payment of equitable compensation tor areas taken by the 3rd Defendant (ill) An order for allocation of new areas to Plaintiffs: in substitute to the areas taken by the defendants if compensa tion fails. (iv) Payment of general damage (sid) as will be assessed by this honourable court (vj That the Defendants be ordered to pay interest at the court's rate to the decretal sum from the date ofjudgement to the date ofpayment in full (vi) That the defendants be ordered-to pay the costs of this suit. (vii) Any other relieffs) as the court may deem fit andjust to grant. It should be noted that this is notthe first case in this part

of Tanzania where members of the rural community sue government agencies for their land rights. The only reason for uniqueness of this particular matter is the increasing tendency of members of the legal profession including State Attorneys to hide behind technicalities much to the detriment of speedy dispensation of justice. As a result, the matter has been backlogging this court for many days with a brink window of hope for finalization. To add salt into injury, the plaintiffs in this matter had initially engaged lawyers to advocate for them. Halfway through, the learned Advocates from Page 3 of 15 Phoehics Attorneys, a law firm located in downtown Mtwara, wrote to this court that they were withdrawing instructions, Such withdrawal left the plaintiffs without any other choice but to prepare for whatever decision the court would come up with, I must admit that it was not until the learned State Attorneys were sure that the withdrawal of instruction by their counterpart as alluded to above was not going to stop: this court from proceeding with the case that the defendants, through their lawyers Ms. Get rod a Songui learned State Attorney, Joshua Sanaa & Petro Mnyeshi learned Legal Officers of the first defendant (I will refer them all as learned State Attorneys), collectively advocating for all defendants, got rather serious. At this juncture, I am inclined to provide a brief

factual and contextual backdrop necessary to connect the dots. Sometimes in 2019 the first Defendant (Masasi District Council) received what appeared to be an amazing offer from the third defendant (VETA) albeit through other communication channels of the central government; The offer was for establishing a vocational training center (commonly known as Chao cha VETA} in the district. The offer, though unquestionably attractive from a developmental point of view, had strings attached. The District Executive Director (DED) had to obtain a minimum of 50 acres of land without any demands for compensation. the office of the DED passed on the good news to the Ward Councilors, As expected, the Waheshmvwa Madiwani were extremely excited. Establishment of a Chuo cha VETA in one's ward would hot only symbolize P.aj=e-4 of 15. leadership success but also bring the much-needed social services and empower the youths. The DED left the offer open for any ward that would meet the condition, Many wards wished they could be selected. However, finfilling- the condition of obtaining 50 acres of land at no cost proved to be a gigantic task. It appears that the then Mheshimiwa Diwarifor Chikundi Ward, one Mr. Da main J Mgalagasye moved faster than his fellow Ward Councilors. It came to his knowledge that two of his villages Chikundi and Msigalila shared a cooperative farm which was public property.

It measured 30 acres. The land was not enough to convince the DED to attract the offer for Chuo cha VETA to his ward but at least it was considered a good start. In a brainstorming meeting of the Hon. Mga.lagasye and other ward and village leaders, it was suggested that neighbouring communities be approached to provide a part of their land, 20 acres in total, to be added into the shamba. ia ushirika and attract the VETA in Chikundi Ward. Neighbouring landowners were, allegedly, invited to some meetings of the Ward Development Committee (WDC). It appears that before negotiations could take shape, the DED was called upon to inspect the land and he proceeded to notify VETA of fulfillment of the most difficult condition namely acquisition of land. The 20 acres of land belonging to the 20 plaintiffs was quickly enclosed and they were prohibited from accessing it pending other steps. The plaintiffs were aggrieved. They allegedly tried to voice out their grievances in public meetings but were not given the chance whenever they Page s of 15 raised their hands, The conflict was reported to the District Commissioner and later the Regional Commissioner, but no solution was forthcoming, hence this suit. For purposes of this suit, three of the 20 plaintiffs namely GAUDENSI GEORGE MilJXNZI, DESTERIA SELEMANI MALWESO and SAIDI NANGOMWA had been dully instructed to appear on behalf of the rest

whom, it was asserted, were too old to leave their homesteads and others were too poor to afford public transport and other costs from Masasi to Mtwara. The three representatives were the only plaintiffs' witnesses PW1, PW2 and PW3 respectively. The learned State Attorneys for the defendants, on their part, paraded a total of six witnesses. These are; DW1 Joseph Noeli Mtungula (Village Executive Officer) DW2 Joseph Amandus Hororo (Peasant), DW3 Abdallah Hashim Imani (development partner) DW4 Enock Richard Halinga (Ward Executive Officer), DW5 Ally Shabani (VALUER) and DW6 Furaha Paul Ayubu (Ag. Estate Manager for VETA National Level). In brief, the plaintiffs were able to establish that they are owners of the suit land, that the suit land was taken by the government without their consent and that they have suffered as a result. The plaintiff's insisted that they were being ignored because VETA College buildings were being erected while then' land had been fenced off. They prayed to this court to ensure that their right to an alternative land or meaningful compensation is protected. 6 of 15 On commencement of the defendant's case, the four witnesses unanimously prayed that this matter be reverted back co Chikundi Ward for amicable settlement. None of them contradicted the assertions: by the plaintiffs. The only point of departure in this suit is, therefore, the way

forward. Whereas the defendants beseeched this court to revert back the matter for "amicable settlement" the plaintiffs, on their part, strongly disagree. They asserted that this court is their only hope for justice and that the defendants had ignored them for too iong. This calls for a slightly unusual judgment writing style. Retired English jurist. Lord Neuberger in his paper "Sausages and the Judicial Process: The Limits of Transparency" delivered, at the Annual Conference of the Supreme Court of Nev; South Wales, in Sydney, Australia on 1 August 2014 expounded on the famous statement: "Laws are like sausages —-it is best not to see them being made" in the following wisdom laden words. it comes to Judgments, the sausage analogy can be taken a little further. Sausages are contained in a transparent skin, or casing, which means that the contents of a well-made sausage are neatly packaged and are clearly visible. Like the casing of a sausage, the style and structure of anyjudgment should ensure that the ultimate product appears elegant and that its contents are dear. And a traditional sausage contains a well-judged mixture ofmeat, starch and flavouring, and the best sausages have more meat than starch and they have good flavouring.'' Many jurists agree that the reasoning of judges is the "meat" in judgements. Facts, including those that are not disputed are the: starch.

The Page 7 of 15 flavour comes in many shapes and sizes. They include metaphorical expressions, storytelling technics, choice of words and the handling of sentence structures. In this judgement I choose to attempt a good mix by erxpounding on some legal and public interest issues upon which final orders at the end of this judgement are based. These are: land acquisition in Tanzania, compensation for land acquired for public interest, environmental and social impact assessment of development projects and respect for the rule of law. I will use simple expressions and avoid unnecessary quotations from case law authorities. On the first issue, it cannot be overemphasized that land is the most precious resource to a rural community whose livelihoods depends entirely on land-based resources. Depriving a villager of his or her land is tantamount to violating the right to livelihood. Land is where food is grown, livestock are kept and ail other economic activities in the rural areas are conducted. It is in this background that the law in Tanzania takes rural land rights most seriously with a suigeneris legislation THE VILLAGE LAND ACT CAP 114 RE 2019 was enacted for that purpose way back in 1999. At individual level, while oral contracts are recognized and enforced in other areas of life, the law in Tanzania specifically calls upon parties to a land related transaction to have a

written contract. Sees section 64(1) of the LAND ACT CAP 113 RE 2019 and this Court's case of ISHFAQUE SHABIR YUSUFALI v. ANIL MOHAMED VXSRA and 3 OTHERS' Land Case No 202 of 2013 HCT Dar (Unreported). Page 8 Of IS More Importantly/ as aa/HI be explained in detail in the next paragraph, land ownership is a legal issue and must be approached legally. It would be unfair for this court, like the proverbial ostrich, to bury its head in the sand and pretend that maladministration has not been noticed in the matter at hand. It appears that the defendants were more concerned with development and little or no regard to individual rights. The second issue is the reason as to why plaintiffs resist going back to the ''ward'' for "amicable settlement" without proper directives of this court. I want to say plainly that a typical Ward Development Committee i WDC) in our country does not own land and is unknown creature in our land law. Moreover, the so called "kifuta that some PW's led by the learned State Attorneys attempted to blanket this court with, is equally unknown in our law. The constitution is very clear on "adequate compensation." The relevant provision provides as.foliows: 24.-(1) Every person is entitled to own property and has a right to the protection or his property held in accordance with the law. (2) Subject to the provisions of sub article (1) it shall be unlawful for any

person to be deprived of his property for the purposes of nationalization or any other purposes without the authority oflaw which makes provision for fair and adequate compensation, R should be noted that DW5 the valuer testified that he conducted valuation on the suit land when the real meaning of the concept of kifuta jnshocawA not be agreed upon. When prompted to explain how he arrived at the figures which were obviously too low for one's productive land, he was unsure. U nfortunate ly, the pla i ntiffs, me re vi 11 age rs, caul d not chai lenge Page 9 of15 the witness who never mentioned that the valuation report was no longer valid after six months had elapsed. This is why legal aid in our country is very important. The third issue for my deliberation is on the twin concepts of Environmental Impact Assessment (EIA) and Social Impact Assessment (SIA), The Environmenta’ Management Act No 8 of 2004 defines EIA as "a systematic examination conducted to determine whether or not a programme, activity or project will have any adverse impacts on the environment," SIA is not defined in the Act, but it simply means'm process for the identification, analysis, assessment, management and monitoring of the potential social impacts of a project, both positive and negative/' It is. baffling to even imagine that the third defendant, a highly respected institution and one of Africa's

foremost leaders in TVET (technical and vocational education and training) especially now that it has been merged with another TVET firebrand, the National Council for Technical Education (NACTE) to become NACTVET avowed itself to slip into error of investing in a piece of land without proper documentation- The respected gentlemen and ladies in TVET should not have allowed themselves to travel in the train of Honourable Councilors and the LGA in general without critical scrutiny. Building on spotting logical fallacies for legal reasoning, I have all reasons to suspect that the project has been undertaken without an approved EIA report. Apparently, an order was given by this court for both parties tofile their final written submissions. Specifically, the third defendant -Vge 10 of IS was ordered to attach a copy of the EIA and SIA reports: for consideration by this court in composing this judgement. No final submission was filed and therefore no EIA/SIA document was made available to this court. \: Wouldn't it be fair, albeit through reasoning by inference, to conclude that our respected TVET institution had succumbed to pressure of the diwani and DED to the extent of jettisoning some of its core values? Has NACTVET acted unprofessionaiiy ddenyejrx^ the detriment of the plaintiffs and their fam Illes? It cannot be overemphasized that succumbing to social, economic, and political

pressure to establish a training center in the remotest of vicinities in our country in contravention of the tenets of sustainable development is unfit a tag to the third defendant. As alluded to above the third defendant is, I repeat, a highly respected institution in and outside our country. This will be reflected in my order specifically meant for the third defendant. The fourth and last issue for my discussion Is on the rule of law. There is no doubt that Tanzania is. committed to the rule of law and respect for human rights including the right to own private property. It is undeniable however that the lower the level of government the lesser the respect for the rule of law and human rights. To some of us who try to keep abreast with current affairs in our country by reading newspapers whenever we get time out of our busy schedule, the print media is never devoid of a story or two every week of abuse of office by a member of an LGA. Hardly if ever do national leaders visit District Councils without being alerted to some form of maladministration. Attempting to build a culture of Page 11 of 15 respect for the rule of law in some LGAs, especially those in the remotest part of our country is, therefore, not easy. It is a task akin to Mwalimu Nyerere's story of a rabbit trying to kill an elephant. I take the liberty to reproduce the story here from one of the authentic online

sources: "From the elders of my tribe 1 learned the wee story... Rabbit, where are you going? l ‘m going to kill the Elephant. Can you do that? Web Hi tryf <?nd try again!See Speech by Mwalimu Julius K Wyerere., Chairman of Vie South Center At She Commission's Inauguration Ceremony Geneve 2 October 1222 nth is r- Junltedi aoaDbmfmrwanM con o i srii cf Like the South-South Commission that was advised by the late Mwalimu in the above quoted speech not to despair but try and try again, Central Government agencies and the Ministry responsible for LGAs should not despair but try and try' again. This is tine only way to ensure that there is a trickledown effect on the culture of good governance to the lowest levels of government including CWbcs/ijg/ws Madiwdni and Village Executive Officers (VEO's). The quest for "development" must not be to the detriment of individual liberties and democratic values. I am inclined to emphasize here albeit for posterity that LGA's in Tanzania should continuously be reminded to obey court orders without unnecessary delays. There is no better way of building a sense of hope and tranquility among wananchiVwac\ unquestionable obedience, to Court Orders. In SUB.RATA.ROY SAHARA V,. TOOK OF INDIA.(20X4) 8 SCC 470, the Supreme Court of India stated as follows; ?Ug4= .12 of IS "Disobedience of orders of a court strikes at the very root of the rule of law

Which thejudicial systemrests, Judicial orders are bound to be obeyed at all costs. Howsoever grave the effect may be, is no answer for noncompliance of a judicial order. Judicial orders cannot be permitted to be circumvented." One thing is especially intriguing when it comes to many if not most District Councils in Tanzania: there:seems to be no internal mechanisms to resolve disputes with members of the general public amicably. Although they have legal officers in their payrolls, such legal officers are not empowered like Human Resource Officers when it comes to employment related matters, to embrace negotiation, arbitration, and reconciliation. It is, in my opinion, high time the learned legal, officers cum council solicitors are provided with the necessary tools and mandate to spare their directors with unnecessary costs of centralized, remotely piloted and at times halfhearted litigation. In the end, as it will shortly be clear in this judgement, obedience of Court Orders will be directed to such LGAs and must be obeyed. To borrow the words of Romer LJ. in HADKINSGN V. HADKlNSO^ [1952] 2 All ER 567 "It is the plain and tinquaiified obligation of every person against, or in respect of whom an order is made by a court of competentjurisdiction, to obey it unless and until that order is discharged. The imcbmpromisihg nature &f this obligation is shown by the fact that it

extends even to cases where the person affected by an order believes it to be irregular or even void." Admittedly, the demeanour of the six Defendants Witnesses was telling in a positive way. The majority looked rather perplexed that the conflict had escalated to the level of this Court. This means, there has not been any Page13 ci 15 attempt to dismiss the claim that plaintiffs were illegally evicted from their land to pave way for construction of the VETA college by the second defendant. That the plaintiffe were subjected to unnecessary anguish and impoverishment seemed like a thorny topic that the learned State Attorneys wished amicable solutions would be pursued only that the plaintiffs had lost faith in such good intentions not backed up with good actions. Premised on the above, I proceed to make the following orders: (1) The first respondent,. within 60 days effective from the date of this judgement, conducts a proper valuation on the suit land. (2) The first respondent within 60 days after the above order has . been duly complied with pay reasonable compensation to all 20 plaintiffs as required by law. (3) In the alternative, the first respondent, within 90 days from the date of this judgment to allocate alternative land within Masasi District, to each of the 20 plaintiffs herein. (4): The third respondent refrains from admitting students to study its various programs

before assuring that the first respondent has complied with the first and second (or in the alternative the third order) above. (5) The second respondent, within a reasonable time from the date of this judgement to officially remind the first and third defendants of their duties to ensure observance of the rule of law and take into . cognizance environmental and social impacts of their current and future development projects. This may include conducting sensitization seminars on the new and emerging concept of Page 14. of IS Environmental Rule of Law in the context of Sustainable Development Goals with specific emphasis on Environmental Procedural Rights to all District Executive Directors in the country. It is so ordered.

JUDGE * \ \ . *A' 29/09/2023 Court Judgement delivered this 29th day of September 2023 in the presence of GAUDENSI GEORGE MILANZI, DESTERIA SELEMANI MALWESO and SA1DI NANGOMWA representing other plaintiffs anci in the absence of the defendants.

JUDGE 29/09/2023 Court The right to appeal to the Court of Appeal of Tanzania fully explained. EJrEALTAIKA ' J

JUDGE 29/09/202.3 Page 15 of 15