george mayunga others vs principal secretary ministry of works others 2014 tzhc 2290 28 october 2014

IN THE HIGH COURT OF TANZANIA AT MWANZA LAND CASE NUMBER 35 OF 2005 1. GEORGE MAYUNGA — -................ 1st PLAINTIFF 2. CONSOLATA FAUSTINE.................. 2nd PLAINTIFF 3. IDD RYASUKA............................... 3rd PLAINTIFF VERSUS 1. PRINCIPAL SECRETARY MINISTRY OF WORKS................ 1st DEFENDANT 2. TANROADS............................. 2nd DEFENDANT 3. ATTORNEY GENERAL— ........... 3rd DEFENDANT JUDGMENT 26/08 & 09/10/2014 S. S. MWANGESI J.: This suit purports to be a representative suit whereas it is not. It has been indicated in paragraph five (5) of the plaint that, the three plaintiffs herein are representing others, who have been named in annexure KLA/A, and thereby, making the total number of the plaintiffs to be sixteen (16). It is a requirement of law in terms of the provision of Order 1 Rule 8 of the Civil Procedure Code Act, Cap 33 that, where a party or few parties want to represent others, they have to seek and obtain leave of the Court. In its own wording the provision is couched thus: "(1) Where there are numerous person having the same interest in one suit, one or more o f such persons may, with the permission o f the court, sue or be sued, or may defend, in such suit, on behalf o f or for the benefit o f all persons so interested; but the court shall in such case give, at the plaintiffs expense, notice o f the institution o f the suit to all such persons either by personal service or, where from the number o f persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may d irect" I view the above quoted provision of law to be couched in mandatory terms failure of which can make a representation ineffectual. My perusal of the proceedings of this matter, has failed me to find any scintilla of evidence that, there was ever preferred any application for leave to file a representative suit in terms of the above cited provision of law. This fact has further been corroborated by the content of the plaint, wherein nothing of the sort has been hinted. In the circumstances therefore, the plaintiffs who have been listed herein in the plaint, are standing on their behalves only and not representing the remaining thirteen (13) as they have purported to put it. I will treat them so. The claims of the plaintiff against the defendants according to the lodged plaint, is for first, compensation of about TZs 104,000,000/=, being the principal sum (value) of their demolished houses. Secondly, that they have to be allocated new plots of land, to replace those, in which their houses were demolished. Thirdly, the plaintiffs pray to 2 paid interest at commercial rate to the decretal sum, from the date of demolition of their houses, till payment in full. Fourthly, the plaintiffs pray to be paid costs of this suit, and any other and further reliefs, which the Honorable Court may deem fit and judicious to grant. In response, all the defendants in their joint written statement of defense have strongly resisted the claims by the plaintiffs on the bases that, they are unfounded as the plaintiffs were not entitled to get any compensation on their demolished houses. At the commencement of hearing this suit, it was agreed upon by the learned Counsel representing both sides and approved by the Court that, this suit gives rise to mainly four issues that is to say, first, whether the plaintiffs' houses were within the road reserve. Second, whether the plaintiffs' houses were unlawfully demolished. Third, if the second issue is answered in the affirmative, then whether the plaintiffs are entitled to be allocated new plots of land as well as being compensated, and to what extent. Fourth, to what reliefs each of the parties to this suit is entitled to. George Mayunga did testify as the first witness for the plaintiffs case. He told the Court that, he lives at Pansiasi area within Mwanza City, where he engages in a business of tailoring. He has been living there in his own constructed house along Makongoro road, since the year 1962. On the 18th February 2004, his house got demolished by Tan-roads on the reason that it had been constructed in the road reserve, an allegation which was not true because his house had been constructed at a distance of about twenty three (23) meters from the center of the road. It has been deposed further by the witness that, before the fateful date that is to say, back in the year 1999, he was informed by the Municipal Authority of Mwanza that, the value of his house would be evaluated before being demolished. He has tendered a letter dated the 12th July 1999 to that effect as exhibit PI. On the 13th July 1999, his house was evaluated as per the contents of the letter, however, he was not informed the value of his house. Later, he got informed that his house would be demolished and indeed it got demolished on the 20th February 2004 without being compensated. 3 The witness has gone on to tell the Court that, after they had been served with the notice for demolition of their houses, he and his colleagues did go to see the State Attorney In-charge of Mwanza Zone, who required them to go and converse with the Manager of Tan Roads. He has tendered as exhibit P3, a letter from the Principal State Attorney of Mwanza Zone to the Regional Manager of Tan Roads, advising for such conversation. It has been the averment of the witness that, according to exhibit P3, the houses which were to be demolished were those which were within 22.5 meters from the center of the road. Under the circumstances, his house was outside such distance and did not deserve to be demolished. It is on those bases that he is demanding to be compensated the amount indicated in the plaint. The witness has tendered as exhibit P4 the statutory notice to sue the Government, which was served by his learned Counsel to the Principal Secretary Ministry of Works and copies served to the Honorable Attorney General and the Region Manager of Tan Roads Mwanza. The witness has also tendered as exhibit P5, receipts to establish that, he had been paying property tax to the Council on his demolished house. When cross-examined by learned State Attorney Ms Subira Mwandambo, regarding the types of houses which were evaluated, the witness has told the Court that, the evaluation was made regardless of the distances of those houses from the road. He further claimed not to be aware if there were any other people, who got compensated after the exerqise of evaluation. The testimony by Idd Ibrahim Lyasuka, who testified as PW2 has been to the effect that, he lives at Kiseke area here in Mwanza. Before the year 2004, he was living at Pasiansi' area, where he had constructed a house. He did shift from Pasiansi to Kiseke after his house had been demolished by Tan Roads. The cause for the demolition was said to be because it had been constructed along the road reserve and there were plans to expand the road. Prior to the demolition in the year 1999, he was served with notice from the City Authority to the effect that, his house would be evaluated for purposes of being compensated. Even though his house got demolished 4 as previously alerted, he has never been compensated nor was he even told the outcome of the evaluation exercise. f The witness has tendered as exhibit P6 the receipts which were being issued to him upon paying the property tax in respect of the demolished house. He has also tendered as exhibit P7, the notice which he was served'by the Municipal Council to the effect that, his house would be evaluated. The second witness for the plaintiff's case has concluded his testimony by requesting the Court to order the defendants to compensate him the value of his demolished house as well interests on the decretal amount. Furthermore, he has asked the Court to order the defendants to allocate him another plot of land to replace the one on which his house got demolished. Consolata Faustine was the third witness for the plaintiff's case. Being led by her learned Counsel Mr. Bernard Kabonde, she has deposed to the effect that, she lives at Pasiansi within Mwanza City and engages in peasantry activities. She claimed to be standing on behalf of her father one Faustine Maliseli, who has been incapacitated and has appointed her through power of attorney to represent him in this suit. She has gone to inform the Court that, previously, his father was staying at Pasiansi area, where he owned his own house. However, the said house was demolished by Tan Roads for reasons which she did not know. Prior to the demolition, his father was served with a notice by the Municipal Fathers that, his house would be evaluated for purposes of being compensated. However, to date such compensation is not forthcoming. She has tendered as exhibit P12, the receipt to confirm that, her father had been paying property tax to the demolished house. She has concluded her testimony by asking the Court to order the defendants to compensate her father the value of his demolished house with interest. That marked the end of plaintiffs' case. Engineer Mathias Komanya Songoma has given his evidence’ as the first witness for the defense case. He has told the Court that, currently he lives in Lindi Region, where he works in the office of the Regional Engineer of Tan Roads. Among his duties is to supervise construction of roads because he is a Civil Engineer by profession. 5 Between the years 2001 and 2004, he was supervising construction of roads within Mwanza Municipality, representing the Principal Secretary of the Ministry of Works. Among his tasks were to ensure that, the site was clear for the Contractor to perform his duties smoothly. Among the roads involved in the said construction were Kenyatta road, Airport road, Uhuru road, Rufiji road, Rwagasore road and others. Along the Airport road, he was required to identify the houses, which had been constructed along the road reserve, which had to be demolished to pave way for the expansion of the road. Among those houses, there were some which were within the road reserve and others which were outside the road reserve. The houses which were within the road reserve were those which were situated at a distance of less than 22.5 meters from the center of the road, while those outside the road reserve, were those which were situated at a distance outside the 22.5 meters from the center of the road. Particularizing the ?reas involved, the witness has testified to the effect that, from CCM round about to Pasiansi stand, the new road had to follow the old road. From Pasiasnsi stand to Sabasaba area, the new road had to sh ift’to the left side of the old road, when one is moving towards the Airport. The shift of the road was made to avoid interference with the water sewage pipe. All the people whose houses were followed by the new road were compensated. And those whose houses had been spared by the new road were as well not spared in that they had to give way. Testifying on the notices which were served to different people by the Municipal Fathers, the witness has deposed to the effect that, all houses which had been within and outside the road were evaluated. However, among them, some of them did deserve compensation and did indeed get compensated, while others did not deserve compensation and therefore, were not compensated. He has however told the Court that, he was not in a position to tell whether the plaintiffs in this suit deserved compensation or not even though in their records, all who deserved compensation are indicated to have been compensated. 6 The second witness for the defense has been Domitian Manoko. He has told the Court to be a retired civil servant. During his service in the Government, he was working as a Valuator and his last station before retirement was at Ilala District Council. Between the years 1981 and 1998, he was working with the Municipal Council of Mwanza in the same capacity. Among his duties were to Evaluate buildings for different purposes. He recalled to have once been asked by Tan Roads to evaluate buildings, which were to be affected by the construction of new roads within Mwanza Municipality for purposes of compensating them. In compliance with such request from Tan Roads, they did first earmark the buildings which were along the road reserve. Thereafter, they did notify the people who were to be affected by the project. The witness has identified exhibit P9, which was among the notices which were served to the affected people about the intended evaluation of their buildings. He has claimed to have been the author of those notices. He has testified further to the effect that, the purposes of the notices and/or letters was not to ensure that, whoever got notified would be compensated. After they had accomplished the task of evaluating the houses, the report was send to Tan Roads which effected the compensation. That marked the end of the evidence for the defense. After the defense had closed its case, the learned Counsel for both sides did ask for some time to file final submissions, a request which was granted by the Court, and they were asked to do it latest by the 09th September 2014. However, according to the available records, it is only the learned Counsel for the plaintiffs, who has complied with the order. The necessary implication inferred from those who have failed to comply with the order is that, they have decided to forfeit their right and thereby, entitling this Court to proceed considering the merits of the suit without their final submission. After such observation, I now turn to determine the issues, which were framed at the commencement of hearing this suit. As indicated above, the first issue is whether the plaintiffs' houses were outside the road reserve. Learned Counsel Mr. Bernard Kabonde on behalf of the plaintiffs, has 7 in his final submission, implored the Court to understand and hold that, the houses of his clients had been situated outside the road reserve. This is from the fact that, all of them have testified to that effect that, their houses were outside 22.5 meters from the center of the road. It has further * been his averment that,'the contention of his clients has strongly been supported by the testimony of DW2 (Domitian Manoko), who told the Court that, he was the one, who served notices to the owners of the buildings that were to be demolished to pave way for expansion of the road and that, those who were served, were only those whose houses were outside the road reserve. The fact that all the plaintiffs in this suit were served with valuation notices, ipso facto it means that, their houses had been situated outside the road reserve and therefore, entitled to compensation. Since they were not paid such compensation, they are asking the Court to order the defendants to do so. The question thus for this Court to resolve is whether the plaintiffs have in the instant suit managed to discharge their obligation. It is the law under the provision of section 110 of the Law of Evidence Act, Cap 06 of the Laws Revised Edition of 2002 that, he who alleges has to establish. The provision reads in verbatim that: "(1) Who-ever desires any court to give judgment as to any legal right or liability dependent on the existence o f facts which he asserts\ must prove that those facts exist. " In discharging their obligation, reliance- by the plaintiffs has basically been banked on exhibits PI and P7 that is, the notices which were served to them by the Municipal Authority, being notified that their houses would be evaluated. The foregoing is said to have been corroborated the testimony of DW2 Domitian Manoko). While I am to some extent in agreement with the learned Counsel for the plaintiffs, I will not travel with him as regards the contention that, the testimony of DW2 did squarely support the assertions that, all those who were served with notices had their houses outside the road reserve. DW 2 was categorical that, the notices were served to all those, whose houses would be affected by the construction of the new road, whether their houses 8 were within the road reserve or outside. As the task lay on the plaintiffs, to convince this Court that, their houses had been outside the reserve, I would answer the first issue in the negative that they were not. The second issue is whether the plaintiffs' houses were illegally demolished. Here I have to confess that, I have faced some difficulties in appreciating the essence of the issue. It is my understanding that, from when the plaintiffs and their colleagues were served with the notices for the evaluation of their houses, the owners of those houses were made aware of the reasons as to why there was to be such demolition and as such, they understood it to be lawful act that is why they did not resist. However, since their consent to the demolition of their houses were banked on the fact that, they would be compensation, then the fact that the plaintiffs in the instant suit were not compensated, then it may correct to contend that, the demolition was unlawful. In the premises, I would answer the second issue in the affirmative that, the demolition was unlawful because there was no compensation. The answer to the second issue in the affirmative brings me face to face with the third question, which is whether the plaintiffs are entitled to compensation and allocation of new plots of land to replace the ones in which their houses got demolished. To establish that their houses were indeed demolished, the plaintiffs have relied on the notices for evaluation of their houses that is to say exhibits PI and P5, as well as exhibits P6, P7 and P12, all of which are receipts of property tax, which the plaintiffs were paying to the Municipal Fathers, in respect of the houses which they did own. Learned Counsel Mr. Bernard Kabonde has urged the Court to answer the issue in the affirmative on the bases that, such duty by the defendants to compensate the plaintiffs is not a moral duty but rather a legal duty in terms of the provision of section 73 of the Town and Country Planning Act, Cap 355 of the Laws Revised Edition of 2002. On the other hand, the defendants have not disputed the fact that, the houses of the plaintiffs were indeed demolished. They have however hastened to argue that, the 9 plaintiffs are not entitled to any compensation, because their houses had been in the road reserve and that, those who deserved were only those whose houses had been situated outside the road who after all have already been compensated. According to the defendantstherefore, the plaintiffs do not deserve anything. The task of this Court in the light of the above tag of war is to take its side for and/or against either side. At this juncture, it is pertinent to bring into play the provisions of law in aid. The provision of section 73 of the Town and Country Planning Act, Cap 355, which has been relied upon by the plaintiffs in pressing for compensation has been couched in these words verbatim: "When any person authorized under section 72 causes damage to any property in the course o f his duties, the Minister may appoint a person to value such damage and compensation shall be payable by the Minister or the Area Planning Committee, as the case may be, to the person whose property has been damaged accordingly." The provision of section 72 of the Act in which he provision of section 73 above refers in its own words reads: "(1) Any person authorized in writing in that behalf by the Minister or by an Area Planning Committee may, on production o f such written authority to the owner or occupier, enter at any reasonable time upon any land for the purpose o f examining such land in connection with the preparation o f a scheme or investigating whether or not the provisions o f a scheme are being carried out. ” It was testified by Engineer Mathias Komanya Songoma, who testified as DW1 that, in theyears 2001 and 2004, he was assigned to represent the Principal Secretary of the Ministry of Works, in the project of rehabilitating roads within Mwanza 10 Municipality. Undoubtedly therefore, the demolition of the houses of the plaintiffs in the instant matter was in line with the powers conferred under the provision of section 72 above and that is why, even the plaintiffs and their colleagues, who were involved in the said project never dared to resist. Nonetheless, as the two provisions of law above can exhibit, accomplishment of , the duties conferred under the provision of section 72 of the Act, is subjected to an obligation created in the subsequent provision that is to say, section 73 of the same Act, which stipulates that, compensation has to follow to those affected. It was under i that spirit I believe that, DW 2 (Domitian Manoko) was assigned the task of evaluating the properties of the plaintiffs. Since it has been established that, the plaintiffs in this sit have not been compensated yet, then the provision of section 73 of the Town and Country Planning Act has not been complied with by the defendants. There was the testimony of both DW l(Engineer Mathias Komanya Songoma) and DW 2 (Domitian Manoko) to the effect that, the plaintiffs herein were entitled to compensation because their houses had been situated on the road reserve. I find this contention to lack strength for two reasons. In the first place, there was tendered no evidence to satisfactorily establish that, the plaintiffs' houses were within the road reserve. To this however, it may successfully be argued by the defendants that, such task lay to the plaintiffs. But secondly, even if the houses of the plaintiffs had indeed been within the road reserve, there has been tendered no law by the defendants, which precludes those, whose properties were within the road from not being entitled to compensation. Such task squarely lay on the defendants. On the bases of the foregoing reasons, I would answer the third issue in the affirmative that, the plaintiffs are entitled to compensation as a result of the damages occasioned from the demolition of their houses. There is yet another sub issue in the third issue, which is whether the plaintiffs are entitled to allocation of new plots of land in replacement of those in which their houses had been demolished. I find this claim not to be backed by sufficient bases. The li claim by the plaintiffs in the instant suit is basically against the Ministry of Works, which in essence is not concerned with allocation of lot of land. I view its task to have been limited to compensation only. Even though DW 2 has told the Court that he was an employee of the Municipal, in so far as the matter at hand was concerned, he had just been asked by Tan roads to do the task of evaluation because he was knowledgeable with such business and not because he was an employee of the Ministry concerned. Or else, to have an executable decree, the plaintiffs ought to have impleaded the Municipal as a party in their suit. I would thus answer the third issue in that aspect in the negative that, they are not entitled to allocation of new plots of land. The other factor to be considered in respect of the third issue, concern the amount of compensation, which each plaintiff is entitled to. It is unfortunate that, the evaluation which was made by Domitian Monoko (DW2), regarding the value of each one's property was never disclosed. And on their part, plaintiffs have given a general figure for all the 16 meaning that, they were asking for flat rate amounts. Since their total figure is TZs 104,000,000/= say one hundred and four million, the flat rate for each was estimated to be about TZs six million and five hundred thousand (6,500,000/=). In my view, such amount is reasonable. I would therefore grant compensation to each of the three plaintiffs herein a compensation of TZs six million and five hundred thousand (6,500,000/). The defendants are also condemned to bear the cost of the suit. j Order accordingly. S. S. Mwangesi JUDGE 12 AT MWANZA 2 8 - 10 - 2014 13