20200519 TZHC Dar es Salaam

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (DAR ES SA.LAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE No. 265 OF 2013 JOSEPH NDIMILA ..................................•................. 1 st PLAINTIFF ABUBAKARI DYANDUMBO .•..•..•.••.••.•.••••••••.••.•.••••••••• 2 nd PLAINTIFF SAID OMARY MKOPI ••.••••.•.....•••..•••...•••••••••••••.••••..••. 3 rd PLAINTIFF . BAKARI M.MBONDE ..••••.•.••...•.••••••••...••••••.••.••..••••.••• 4 th PLA IN T IFF zuBERI SHAHA .•••••.•.•....•••.....•.....•..•.•.•.•..••••..•.•••••••• 5 th PLAINTIFF ZEIN OMARY AHMEDI ...••.•......•••..•.•.....••....•......••..••• 6 th PLAINTIFF EPHRAIM A. KITESHUO ..•..•••.•.•....••.•.••..•.••.••••••.....••• 7 th PLAINTIFF SHABAN KIDACHURO •.••..••.•.....•••.•••....•..••••••••.•.••..••• 8 th PLAINTIFF ABDALLAH M.KIBINYAGANI ••.••..•.•.....•..••••.•••••••.•••••• 9 th PLAINTIFF ASHA MWINYIMADI ••..••..••••••....••.••..•..••••••••••.•.•.... 10th PLAINTIFF MOHAMED MKUMBI ......•...••••..•••.....•.•••.••••.••••••.•.... 11th PLAINTIFF STANLEY KABANDA .•.••••.•.....•......••........•••.••.•••••.•... 12th PLAINTIFF FATUMA MIKWANGA ....•..••..••.......••...••..•..•..•••.•..•..• 13th PLAINTIFF · th ABDULRAHMAN MWIRU •.••..••.•..•..•............••••.••.•.... 14 PLAINTIFF HAJI ISLAM HEMEDI .••••.•.••....•..•..••...••..•..•••....••••••• 15th PLAINTIFF 1 FABIOLA W. NGUMA ...•••••.•....•.......•.••.•...••••••..•.•.... 16th PLAINTIFF ALLY ABDALLAH •...••.•..•...•••••••••.....••••••••••••••••••••.•••• 17th PLAINTIFF HAMISI BAKARI MIWATU •...••.••••.•.••••••.••••.•••••••••••• 18th PLAINTIFF BAKARI MIWATU .. ■■■■■ •••••••••••••••••••••••••• ■■■■■■ •••••••••••• 19th PLAINTIFF ABDALLAH M. NDUNGWl .••.••..•••...•.•••.•••.••.....••.•••••• 20th PLAINTIFF NASSO RO LIPIPA .• ■ ■■■ ■ ■ ■■■■ ■ ••••• ■■■ ■■■■• ■■■ ■■■ ■ ■ ■■■■ ■■■■■■ •• ■ •••• 21st PLAINTIFF ABDULKARIM RASHID ...••.••......••..•.•••.••••••••.••.•.••••• 22nd PLAINTIFF PILI KIBWANA .. ■■■■■ ■■■ ■ ■■■ ■■■■• ••••••••••• ■ ••••• ■ ■ ■ ■ ■■■■••••• ••••• 23 rd PLAINTIFF YASIN I MAKASO •. ■■■■■■ ••••••••••••••••••••••••••• ■■ ••••••••••••••• 24th PLAINTIFF SAID KAKU KU •.•••..•...•••••.. ■■■ •••••••••••••• ■■ ••••••••••••••••••• 25th PLAINTIFF MUSSA D. MGOMI .•.......•............•...•.•..•.•.•..•..••.•••••• 26th PLAINTIFF JUMA SAIDI ..•••. ■■■■■ •••••••••••••••••••••••••••••••••••••••••••••••• 27th PLAINTIFF ZAINABU NASSORO ••.••.•.....••.........••••••...•••..••••..•••• 28th PLAINTIFF ZUBERI MKUMBA •. ■■■■■■ ■■ ••••••••••••••••••••••••••• ■■■■ •••••••••• 29th PLAINTIFF ZAINABU A. KILINDO ............................................. 30th PLAINTIFF SOMOYE N. KILi MILE ......•••••....•..••••..••••••.•••••••.•••••• 31st PLAINTIFF OMARY NGOMBO •....•.....••... ■■■ •••••••••••••••••••••••••••••••• 32nd PLAINTIFF ALLY Z. MLANZl ■ •••••••••••••••••••••••••••••••••••••••••••••••••••33 rd PLAINTIFF Versus 2 THE PERMANENT SECRETARY MINISTRY OF WORKS ••••••••••••••••••••••••••••••••••••••••• 1 st RESPONDENT THE ATTORNEY GENERAL ..•.••.••••.••••••••••••••.••••..••• 2 nd RESPONDENT JUDGMENT 24 th March, 2nd April, 19th May, 2020. J. A. DE-MELLO J; The Plaintiffs are suing the Defendants jointly and, severally, praying for judgment and, decree for the following orders: a) Declaration that, the Plaintiffs were entitled to be paid the replacement costs of their properties and not kifuta machozi. b) Payment of the replacement costs of the Plaintiffs properties to the extent indicated in the Valuation report less the Kifuta machozi which was paid to the Plaintiffs in 2009. c) The replacement costs be upgraded after every six months from date of instituting the suit till date of full payment. d) Interest on the replacement costs at Bank rate from the date of instituting the suit till Judgment. e) Costs. f) Any other reliefs this Court may deem appropriate to grant. As evidenced on record, this is a horrible backlog suit languishing in the Courts registry since 2013~.. ~e~te I address it, let me at the outset attempt to narrate the facts ~ Y shed light of its predicament 3 When final PTC was conducted, drawing Parties were brought to, among the basics, framing up the following five (5) issues for determination by this Court as follows:- 1. Whether the Plaintiffs are entitled to be compensated full of their properties other than Kifuta Machozi paid to them by the first Defendant? 2. If the issue number one is in affirmative, whether there are entitled to payment of the replacement cost as indicated in the Valuation report less the amount "Kifuta Machozi" paid to them in 2009? 3. Whether such replacement cost should be reviewed upward ever after six months from the date of filling suit to the date of full payment? 4. Whether the replacement cost is subject to interest at the bank rate from the date of instituting the suit to date of judgment? 5. To what remedies are the Parties entitled? The summary of facts surrounding this matter revolves around properties/ houses were situate at Kilwa Road at Kongowe area at Temeke Municipality, formerly registered as Ujamaa Village vide Certificate of Registration No. DSM/Vll24 of August, 1976. It all happened on the 24th of December, 2002. But while still in that enjoyment of their peaceful ownership, and, following expiration of fourteen days (14) Notice of Demolition nd Vacation, the first Defendant's agent TANROADS, illegally dem lished the Plaintiffs dwelling homes. In course of the exercise and soon th r er following several complains he first 4 Defendant took deliberate steps investigate leading to a discovery that demolition was unlawful and, ordered for 'Kifuta Machozi' as reflected in ANNEXTURE Pl- as report committee and copies of cheque paid to the plaintiffs as kifuta machozi dated the 19th of October, 2009. Strangely but possible, many if not all of the houses resembled each other, common Swahili type brick houses comprising of six bedrooms, iron sheet whose compensation after demolition found its basis. In proving their case, the Plaintiffs marshaled thirty three (33) witnesses, tendering the following exhibits. 1. Exhibit marked as Pl - Tanroad's Committee Investigation Report 2. Exhibit marked as P2, letter from TANROADS Agreement between parties on proposed compensation. 3. Exhibit marked as P3 - Letter of Administration of the Estate of the late Zein Omary Ahmed. 4. Exhibit marked as P4 - Letter of Administration of the estate of the late Ephraim Aminiel Kiteshuo. 5. Exhibit marked as PS Letter of Administration of the estate of the late Mohamed Ally Mkumbi. 6. Exhibit marked as PA - Letter of Administration of the estate of the late Mohamed Ally Mkumbi. 7. Exhibit marked as P7 -Letter of Administration of the estate of the late Abdallah Hamani Mwiru. 8. Exhibit marked as PS power of Attorney. 9. Exhibit marked as PS Lette~f Administration of the estate of the late Bakari Miwatu. ~ 5 10. Exhibit marked as Pl0 -Letter of Administration of the estate of the late Said Mohamed Kakuku. 11. Exhibit marked as Pll Power of Attorney. 12. Exhibit marked as P12 -Letter of Administration of the estate of the late Zuberi Mussa Mkumba. Based on the similarities in terms of premises by each, uniformity as to the demolition that, befallen them and, all on the 24th December, 2002, and, agreement as per exhibit Pl, Counsel for the Plaintiff lined up thirty two (32) witnesses out of the entire lot to include; PWl, Abubakari Dyandumbo, paid Kifuta Machozi TShs 10,000,000/ = as opposed to TShs. 96,174,000/=, PW2 Joseph Maligi Ndimila, paid Kifuta Machozi TShs. 35,000,000/= for two houses and TShs. 32,000,000/ = for the third house. PW3 Said Omary Mkopi paid Kifuta Machozi TShs. 10,000,000/= instead of TShs. 61,000,000/=, value of his premise. PW4 Bakari Mohamed Mbonde paid Kifuta Machozi TShs. 10,000,000/ =, notwithstanding the value of the premise, at TShs. 147,701,000/ =. PW5 Salama Salumu Administratrix of the estate of the late Zein Omary Ahmed his late husband, paid Kifuta Machozi TShs. 25,000,000/ =, while the residence valued at TShs. 118,502,000/=. PW6 Francis Ephrahim Kiteshuo an Administrator of the estate of the late Ephrahim Aminiel Kiteshuo his late father, not aware whether his late father, but the house valued at know the amount paid as Kifuta Machozi, TShs. 120,000,000/ =. PW7 Abdallah Mussa Kinyagani paid as Kifuta Machozi TShs. 38,500,000/=. Their house valued TShs. 99,038,000/ =. PWS Ra~ha7ed Mkumbi an Administrator of the estate of the late Mohamed Ally Mkumbi his late father, received TShs 18,000,000/= as Kifuta Machozi notwithstanding TShs. 108,770,000/= value of the house. PW9 Zuber Shaha paid as Kifuta Machozi TShs. 12,000,000/=, the house TShs. 79,573,000/=. PW10 Idd Shomari Kaduro an Administrator of the estate of the late Shomari Abdallah Kiduro his late father, TShs. 17,000,000/= as Kifuta Machozi. The house as valued stands at TShs. 154,430,000/=. PW11 Nassoro Chande Lipipa, paid as Kifuta Machozi TShs. 7,200,000/= differently from TShs. 60,109,000/=. paid compensation but, they were not being paid compensation however he was been paid as Kifuta Machozi TShs. 14,400,000/=, TShs. 79,573,000/=. PW13 Fatuma Mshamu Mkwanga paid as Kifuta Machozi TShs. 19,600,000/ =. TShs. 50,300,000/ =. PW14 Miza Abdallah Mwiru an Administrator of the estate of the late Abdallah Mrimi of his late father, received TShs 15,000,000/= as Kifuta Machozi, instead, of TShs. 87,734,000/ =. PW15 Islam Haji an Administrator of the estate of the late Haji Islam Mohamed of his late father, received TShs. 14,409,000/= as Kifuta Machozi, less TShs. 69,800,000/=. PW16 Fabiola William Nguma paid compensation however he was been paid as Kifuta Machozi TShs 20,000,000 / = and not, TShs. 60,000,000/=. PW17 Ally Abdallah Selugwi, paid as Kifuta Machozi TShs. 7,200,000/=, not TShs. 67,900,400/= compensation based on value. PW18 Abdallah Mohamed Ndungwi paid as Kifuta Machozi TShs. 15,000,000/ =, as against the actual amount of TShs. 103,903,000/ =, official valuation PW 9 Hamisi Bakari Miwatu, paid as Kifuta Machozi TShs. 3 000/=, against TShs. 7 113,636,000/ = as per valuation. PW20 Siri Sultan Ngokwe on behalf of his mother Asha Bin Mwinyimadi. paid as Kifuta Machozi TShs. 10,00,000/=, from the actual amount of TShs. 69,841,000/=. PW21 Somoye Namwenje Kilimile, paid as Kifuta Machozi TShs 23,000,000/=, without TShs. 84,439,000/= from the value of her residence. PW22 Abdulkarim Rashid Samuli, paid as Kifuta Machozi TShs 25,000,000/ =. Therefore, he prays before this Court to be awardedTShs. 152,564,000/ =. PW23 Pili Kibwana, was been paid as Kifuta Machozi TShs 5,000,000/=, excluding compensation of TShs. 84,436,000/ =, PW24 Yassin Makasso, was been paid as Kifuta Machozi TShs 7,000,000/= leaving behind compensation of TSHs. 74,707,000/ =. PW25 ABUBAKARI DYANDUMBO an Administrator of the estate of the late Said Mohamed Kakuku his late brother, he received Kifuta Machozi actual amount not aware but valuation stands at TShs. 45,000,000/ =. PW26 Zainabu Nassoro, Kifuta Machozi TShs 9,600,000/= while the actual valuation stood at TShs. 79,000,000/=. PW27 Mubaraka Juma Said by virture of Power of Attorney on behalf of his father Juma Said Hatibu, paid as Kifuta Machozi TShs 11,00,000/=. Therefore he prays before this court to be compensated the actual amount of TShs. 84,439,000/= following official valuation. PW28 Zainabu Ally Kilindo was been paid as Kifuta Machozi TShs. 10,000,000/ =, pending is TShs. 75,000,000/ = value of the house. PW29 Ally Said Stanley an Administrator of the estate of the late Zuberi Issa Mussa Mkumba his late father, the amount paid as Kifuta Machozi was TShs 14,400,000/=. C pensated the actual amount of TShs. 60,109,000/=. PW 30 Omary hamed Ngombo, was paid 8 as Kifuta Machozi leaving aside TShs. 61,000,000/= as value of the premise. PW31 Ally Zuberi Mlanzi, paid as Kifuta Machozi TShs 15,000,000/ = while the actual amount of his house is valued at TShs. 88,705,000/=. PW32 Roberth Tuniga a private valuer who was engaged by the Plaintiffs to value the premises that had already been demolished. His was evidence very interesting and which went unchallenged of conducting valuation even after demolition based on what he professionally termed 'speculation valuation' based on remains and information from neighbours. The result is supposedly and by law in the Land Act Cap.113 be paid as opposed to Kifuta Machozi. He even pointed out the demolition by the Defendant allegedly for public interest, attracts a fair compensation accompanied with Transport and, disturbance allowance The matter had and following satisfaction, heard Ex Parte, after all the legal notices went in vain. It might be deliberate considering the earlier communication and, Committee report from none other than that of the Defendant's team which established the wrong doing in the whole exercise. Exhibit P1 is clear. This notwithstanding, I will therefore address the suit from one side alone and based on the Plaintiffs side. Other than the oral evidences above, the exhibits tendered by the Plaintiffs speaks louder in support of their case. There is no dispute that they all acquired ownership through villagelization in Kilwa Road at Kongowe area at Temeke Municipality, during the Ujamaa regime under the late Malimu Nyerere the father of the nation, registered as an Ujamaa Village with Certificate of Registration No. DSM/Vll24 of August, 1976. It is even evident that they had not been t r e ~ much as Notice to Vacate 9 was issued and without consultation. There is a version and, which the defence could assist that demolition was for Public interest alleging the Plaintiff to have invaded road reserve. Of a higher note is the admission by the Defendant vide exhibit Pl confirming it to be unlawful and which then forced them to pay what is termed as Kifuta Machozi. This is clear admission of the wrong otherwise it could not be forthcoming. The agreement between the two sides was for compensation and. not Kifuta Machozi as seen in exhibit P2 which has not been honored. There is more than sufficient evidence from the Plaintiff that has proved their case as provided by law under section 110 (1) of the Evidence Act [Cap. 6 R.E 2002] as hereunder; "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of the facts which he asserts must prove that those facts exist." Moreover, section 110 (2) of the Evidence Act [Cap. 6 R.E 2002] "When a person is bound to prove the existence of any fact, it is · said that the burden of proof lies on that person." Individually and in totality, the entire consistent evidence adduced by, PWl, PW2, PW3, PW4, PWS, PW6, PW7, PWS, PW9, PW10, PW11, PW12, PW13, PW14, PW15, PW16, PW17, PW18, PW19, PW20, PW21, PW22, PW23, PW24, PW25, PW26, PW27, PW28, PW29, PW 30, PW31 and PW32, supported by their P1,P2,P3,P4,PS,P6,P7,P8,P9,P10,P11,P12 and P13 are explicit. Romatun Company a Valuation Comp~~ose official and, a valuer 10 ~ himself who conducted the exercise was legally entitled to drawing from section 25 (1) of the Valuation and Valuers Registration Act, 2016 stating; "A person or a firm shall not undertake any activity relating to valuation under this Act without a certificate issued by the Board." The Act allows individuals or a firm to be registered as the private Valuer, of which this Court take cognizance of the status and account on the Valuation report given by PW32, the valuation from both the face and detail, authentic and properly certified and registered. Based on the speculation report, recognized by the law, the case of Mtumwa Shamehe and Another 111 vs. PS Infrastructure and Attorney General, Civil Case No. 31 of 2004 held and I import; TANROAD appointed Committee, consisting of four of its officials, did recommend, that none of the Plaintiffs did invade the road reserve, logically illegal demolition that justifies compensation. By any standards and considering KIFUTA JASHO not COMPENSATION, the action and unilaterally taken was even illegal. Therefore the Plaintiffs should be compensated as provided under the law of Land Act Cap. 113 section 156 which reads; 156. Compensation in respect of a public right of a way (1) Subject to the provisions of this section, compensation shall be payable to any person for the use of land, of which he is in lawful or actual occupation as a c o v l right of way and with 11 respect to a way leave in addition to any compensation for the use of land for any damages suffered in respect of trees, crops, and buildings, as a result of creation of such way leave. (3) The duty to pay compensation payable under this section shall lie with the Government department or the Ministry or the local or public authority or body which applied for the public right of way and duty shall be complied promptly. (4) Where the person entitled to compensation under this section and the body under a duty to pay that compensation are unable to agree on the amounts and method of payment of that compensation or where the person entitled to compensation is dissatisfied with the time taken by the body under duty to pay that compensation to make, negotiate or process an offer of compensation, that person may apply to the High Court to determine the amount and method of payment of compensation and the High Court in making such award make an award for any additional costs and inconveniences incurred by the person entitled to compensation through the dilatory or other un- satisfactory procedure of that public authority. Exhibits P13, admitted unopposed is clearer and, I therefore judiciously exercise my discretion award the Plaintiff as claimed less the Kifuta Machozi already advanced and not under the law but the mercy of the Defendant. My conviction is more compounded by many and, several cases, but this one of Ntiyahela Boneka vs. ~~i{ ~a Ujamaa Mutula [1998] TLR 156 which observed and, I import;~"-.) 12 (1) · A person is entitled to cc,mpensation for .improvements made· on the· land· provided- ··at ·the:. time ·at the time . .of· . . . . . carrying such improvements . . . . had .jurisdiction . ·to dost> . . ·. . ' ' . .(2) The iaw. does· not ·sanction the ~eizure of· an individual. property in the absence of any. enabling written. la"" arid without adequate com·pensation~ · . . . . . .. - ~ .· . . . . I even agree . that the Plaintiffs .had customary or deemed rights in that ' . . . land and which the. Constitution of. the un·i·ted -R~public .of -Tanzania embraces~ See the .case of -Attorney --------~~-----------~---- .... :Genera'! -·.. vs~,···: Loohay .·· Akonay & '. Another, . 1995 TLR 80 thaf . . de-pr,ivafi6rf . lor:-whateverreason -has·-to-..-be ~---C- - - - - . remedied by way of compensation;· . . All. in fine, . the day serves dearly in . . . . favour of all the Plaintiffs and, their representative in whatever form as depicted, administrators of the late_ owne~s and those holding power- of Attorney inclusive. Costs of the suit borne by the Defendants. It ·is so ordered. ····JUDGE·. 19 nd May, 2020. 13 l ~