20160620 TZHC Dar es Salaam

.., IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM (ORIGINAL JURISDICTION} LAND CASE NO. 41 OF 2011 NEW MSOWERO FARMS LTD ........................................... PLAINTIFF VERSUS CHINA CIVIL ENGINEERING CONSTRUCTION CORPORATION ................................... DEFENDANT TANZANIA NATIONAL ROADS AGENCY (TAN ROADS) ........ 3RD PARTY Date of Last Order: 14/06/2016 Date of Judgment: 20/07/2016 JUDGMENT FELESHI, J.: The plaintiff, a-corporate body, sues the defendant, also a corporate body, - for payment of Tshs. 691,142,690/= being value of gravel materials excavated from the plaintiff's farms, compensation for loss of land, crops and business occasioned by reallocation of a road reserve and the waterline relocation by the defendant, an order for payment of general damages at an amount to be determined by the Court, interest on the decretal amount at Court rate of 12% per month from the date of filing of this suit until payment in full. The plaintiff also sues for costs of the suit. In her Written Statement of Defence, basically, the defendant denies liability for the sought prayers and urged the suit to be dismissed with costs. Besides, the defendant embarked on a thirty party procedure which ultimately impleaded the Tanzania National Roads Agency (TANROADS). Four issues were framed and shared by the parties to the suit namely:- Page 1 of 20 If 1. Whether in the execution of Dumila - Kilosa Road Project, the defendant unlawfully entered into the plaintiff's land. 2. Whether by that entry, the defendant caused loss to the plaintiff in terms of the land, crops and business. 3. Whether the plaintiff is entitled to compensation for the gravel materials excavated by the defendant from the plaintiff's land and as to what extent. 4. What reliefs are the parties entitled to? To establish her ·claims, the plaintiff paraded 5 witnesses, that is, PW1 Paulo Mheru, PW2 Joseph Petro Talea, PW3 Juma Mtoahanje, PW4 Dilesh V. Barodia & PWS Arnold Celestine Mzigo. On their part, the defendant & the Third Party had 2 witnesses, that is, DW1 Lisa Peter & DW2 Frank John Mwakisonga. The plaintiff engaged services of the M/S Law Associates Advocates through Mr.Emmanuel Ndanu, Advocate. The defendant was represented by the M/S Rutabingwa & Co. Advocates through Mr.Thomas Brashi, Advocate while the 3rd Party had services of its Legal Unit through Mr.Byabato, Advocate. In his evidence, PW1 who has been working with the plaintiff since 2005 as Chief Security Guard testified that, in 2010, the defendant entered into the plaintiffs' land which is close to the plaintiff's camp for the purposes of collecting gravel materials. PW1 was informed by villagers about seeing the defendant digging gravels from the plaintiff's land whereas he went and found about four or five caterpillars clearing the bushes. PW1 reported to the manager on what he had seen. On the next day they found them excavating gravel but PW1 left the issue to his office. PW1 added, he warned those he found at the scene not to include the gravels found in the area whereas they stopped after 30 days. Following that excavation, the piece of land could not suit other farming works as what was left was a big burrow pit of about ten feet depth adding that, initially, the area was Page 2 of 20 l for rice farming and that there were no other pits before. The excavated gravels were all taken by the defendant. Another testimony was by PW2, an Agricultural Officer working with the plaintiff since 1993. He testified that, in 2010, he saw graders graving the road with motor vehicles used to take murram from the plaintiff's shamba to the road. The exercise continued for about a week. PW2 reported the matter to the Chief Security Officer (PWl) who met PWl after seeing the excavation. PW2 added that, he normally planted 200 sisals in one acre whereas the big burrow pit caused the burrow pit to collect a lot of water and no farm work could be further carried out. The excavated area became unproductive and huge loss was occasioned. It was his further testimony that, he witnessed the respective road construction from Dumila to Kilosa involving about 5-6 acres. According to PW2, the depth of the burrow was equal to the length of one TAN ESCO pole. At the time the plaintiff took the shamba, PW2 was an employee of Tanzania Sisal Authority adding that, that was not the area used by Ujenzi to excavate murram to rehabilitate the said Dumila - Kilosa road. The rehabilitation project used a different site to take the murram which is no longer in use. PW2 did not know whether there were discussions held between the plaintiff and the defendant adding that, he went to the scene during and after the excavation whereas some murram were left behind. It was PW2's further testimony that, the area had no crops but they had planned to plant some later as before the excavation, they had in the past planted some in that very area. PW2 added that, the last time when sisal was planted in the excavated area was about 10 years ago. Page 3 of 20 Another testimony was by PW3 who testified that, he was employed on 24/02/1999 as Finance and Administrative Officer dealing with Administrative issues. From 2006, PW3's daily duties included to oversee administrative matters for staff. In 2010, he witnessed the defendant rehabilitating the Dumila - Kilosa Road via Msowero where they were· removing the old road surface and replacing it with the murram they excavated from the plaintiff's shamba. Upon PW3 asking the plaintiff's Farm Manager one Mr. Amit who was present in the respective office whether the defendant had a permit to excavate the murram from the shamba the later said that there was a concluded special agreement which he was reluctant to disclose. He added that, the plaintiff's Director General one Bharat went to the spot whilst accompanied by four youths who had measurement devices and measured the area between Land Beacon No. 214 and No. 709. On that site, they also found about three generators, two tractors and security guards. Whilst there, PW3 heard the General Manager saying it was better for PW3 to look for money and build a house as the area was not fit for shamba work. PW3 further testified that, the excavated area was about five acres and that after the excavation the area could only suit fishing adding that, since then, there was no farm work carried out. He said, the plaintiff's farm manager did not wish to tell him what agreement existed between him and the defendant but he heard from the Director General that the area was made unfit for farming but could be used in house construction. PW3 further testified that he did not take part in all of the plaintiffs' administrative matters and that he was not involved in any way over the matter. As an administrator at the plaintiff's office, he dealt with correspondences but he did not receive any letter from the defendant requesting for a permit to use the Page 4 of 20 ,; burrow pit. He said, the excavated area which was known to him before had an existing a big burrow pit though no trench was built by the defendant to prevent floods before his excavation work was stopped. Another piece of evidence was given by PW4, a Chartered Civil Engineer working as Crop Project Manager with Noble Tanzania Investment Limited since December, 2006. He said, in August or July 2010, the defendant secured a road rehabilitation work in respect of the Dumila - Kilosa road which passed near their farm- about 6.Skilometres. He said, when they were about 5 kilometres far, the defendant's project manager approached PW4's Farm Manager stationed at the farm one Amit Patel along with Msowero Village Chairman and sought permission for a right of way to the northern part of their farm for them to access the place they had identified for the burrow pit. Mr.Amit Patel called their Group Chairman stationed in Dar es Salaam seeking for the same permission who granted it. PW4 thus received information from Mr.Amit that the excavation that was taking place would be within the farm. In the course, PW4 and the Managing Director one Berat Patel along with their surveyor went to the farm and surveyed the area relying on the farm beacons. He added that, after establishing that the burrow pit was totally within the farm they called the defendant's project manager and showed him the findings of the survey whereas he agreed that it fell within the plaintiff's farm. They therefore asked them to stop from further excavation and requested them for compensation. PW4 added that there was a misunderstanding between the Village Chairman and the defendant on the location to excavate the burrow pit in which they were told by the Village Chairman to construct a small school against the burrow pit they had excavated in the village premises. The Farm issued them Page 5 of 20 l with a letter directing them to stop their excavation and to effect compensation for the loss. The Plaintiff's letter dated 8/12/2010 MFL/CCECC/KIL/0812 directed to the defendant's project manager was admitted as Exhibit "Pl". Upon receipt of the letter, the defendant complied with the directives in which they stopped. By that time, the excavation work had proceeded for about one month. They appointed a professional Surveyor, that is, Geo Link International Ltd to conduct a typological survey to establish the quantum of the excavated materials. The survey revealed that the area of the burrow pit measured about 6.18 acres. Based on the report they received from Geo Link International Ltd, they gave it to the Quantity Surveyor, who established the actual quantity of murram that was excavated. The Quantity Surveyor's report was communicated to the defendant. They held a meeting in Dar Salaam that involved the defendant's project manager, PW4 and their managing Director one Mr. Barakat Patel. They discussed how they could go about that report. The defendant's project manager informed them (PW4) that within one month time they would resolve the matter after consulting their consultant, one SMS and their clients TANROADS. The minutes were supplied to the defendant along with the attached claims invoices. Minutes dated 27/12/2010 and invoice dated 27/12/2010 were collectively admitted in evidence as Exhibits "P2" & "P3" respectively. Upon receipt of Exhibit "P2" & "P3", the defendant made commitment to resolve the matter within thirty (30) days but they failed to do so. They reminded them by letters mentioning that, they had sought advice of their consultant as to what should be the rate payable for the murram excavated. A Page 6 of 20 letter dated 14/01/2011 by the Plaintiff to the Defendant was admitted as Exhibit "P4". This witnessed added that, though in a meeting held on 27/12/2010, it was decided that, the defendant would have compensated the plaintiff within 30 days, nothing was not done. They (PW4) thus reminded the defendant's project manager who in response wrote the SMEC to that effect and copied them. In that letter, they exhibited that compensation should be paid by TANROADS. To exhibit that, the defendant attached to their letter the terms of contract they had with TANROADS pertaining establishment of the burrow pit. A copy of a letter from the defendant to the Resident Engineer, SMEC-TANROADS dated 04/01/2011 was admitted as Exhibit "PS". That, Clause 34.0 of the Standard Specification attached to Exhibit "PS" set it clearly that, the defendant was supposed to liaison with the land owner and agree on the amount for compensation. In that case, the defendant was the contractor whereas according to clauses 34.02 and 34:03, the negotiation was supposed to be made prior to entry into the plaintiff's area which was not complied with by the defendant. Clause 34.06 required the contractor (defendant) to restore the excavated land to its original position. That was not done as the excavated burrow pit is still there. PW4 added that, following the excavations, they cannot grow sisal plants on the area adding that, the defendant's failure to comply with those terms, made them to hire the M/5 Law Associates and raised a Demand Note for the loss the plaintiff had suffered. A letter from the defendant to the Resident Engineer SMEC International Party Ltd. dated 22/2/2011 was admitted as Exhibit Page 7 of 20 j "P6". Besides, a letter by defendant's project manager to the Resident Engineer was admitted and marked Exhibit "P7''. PW4 added that, the response by the Resident Engineer was to the effect that one cannot proceed to compensate for the 2nd burrow pit unless one has compensated for the 1st one. PW4 added that, as the defendant did not reinstate the damaged land to its natural condition he thus urged this Court to award compensation basing on the valuation report from the Government Land Authority. He also pressed for costs of the case. Moreover, PW4 testified that, in August, 2010 the defendant's manager approached Mr. Amit Patel on the right of way. Later on, PW4 received a report from the Farm Manager that the agreement they had with the defendant was not favourable. They discussed the matter over a cell phone and they subsequently gave the defendant a letter to stop the excavation. PW4 further testified that, it was the Employer, that is, TANROADS who had a duty to conduct valuation and effect compensation. He however said, they had not submitted any claims to her. Besides, they addressed the matter to the contractor but they had no any claims on anything connected to the road passing through their farm. Besides, it was PW4's evidence that, all what they found at the area was related to sisal farm work and there was no any other use of the respective piece of land before, other than agricultural activities. Another piece of evidence was that by PWS who have been working with the Kilosa District Council since 2009 and he once worked with the defendant. He testified that, he was assigned to conduct land valuation and other properties on the Dumila - Rudewa Road Construction project which were to be compensated to pave way to the road construction adding that, he (PWS) dealt twice with the Page 8 of 20 valuation of the plaintiff's area. PWS said, upon getting the instructions from SMEC, he prepared a report concerning the preliminary valuation of the extracted murram from Msowero Village. PWS did not know the owner of the area in which that valuation was being conducted. He later learnt through complaint that the area belonged to the plaintiff. The size of the area was 80,000 cubic meters whereas the excavated materials valued at Tshs. 680,000,000/=. He added that, for compensation purposes, the report he sent to SMEC was not final as the final report must be approved by the Chief Government Valuer. Besides, he testified that, in final reports, there are adjustments which are normally made by valuers to cover loss of profit where claimants have proof of loss obtained and disturbance allowance calculated from the concerned areas. The final report is prepared by the assigned valuer basing on the instructions given to him by the employer. In the case at hand, PWS said, the final report was not prepared due to the complaint that victim (plaintiff) was not involved in the preliminary valuation. For him, PWS, added, to deal with complaints on compensation, there must be fresh valuation on the subject matter whose basis will be a situation that will be obtained on the site. He said, the previous preliminary valuation report he conducted may be used in fresh valuation exercise depending on who will conduct the final valuation. When he went on site for valuation, PWS said, he found some soil around the burrow pit adding that, his valuation involved the burrow pit and not that soil. He said, they normally conduct valuation whilst accompanied by surveyors who normally establish the requisite measurements which they use to prepare Page 9 of 20 " preliminary reports. He said, they normally make estimations and not actual findings. PWS added that, TANROADS had also assigned him to conduct valuation in Msowero and Mvumi shamba but was not related to the burrow pit valuation at hand whose valuation he said covered the burrow pit regardless of what was done before. PWS however did not have facts from the plaintiff to enable him draw line if some depth points related to previous excavation or not. In defence, DWl, a civil engineer and employee of China Civil Engineering Company Cooperation (defendant) since January, 2010 testified that, their Company was once hired to construct a road along Msowero village. that, in the end of October, 2010, DWl went to the road site with his boss one Chenzhong Zheng for purposes of viewing a burrow pit that they were directed by the client (TANROADS) as a place where they could excavate materials. DWl added that, what they found was an existing burrow pit. That, at first they had met Mvomero Village Chairman one Mzee Mbaya whom they detailed the purpose of their visit. The said village chairman accompanied them to the site and to the plaintiff's office where they informed them of their intent to expand the road heading to the burrow pit through their sisal plantation/farm. He said, they saw the burrow pit before meeting the plaintiff's officials. He had therefore viewed the burrow pit as one that was already used before. DWl added that, at the plaintiff's office, they met the manager one Mr. Amit. They presented to him their request and he accepted it. However, he asked for time for him to talk to his boss. Whilst there, DWl saw Mr. Amit talking to his boss using his mobile hand set. He then told them that his boss had ✓ equally accepted their request on three conditions: one, to construct some small Page 10 of 20 paths on the sisal farm that would· easy their movements, two, to construct a big embankment along the plaintiff's sisal farm to prevent floods, and three, to repair a bore hall well within the plaintiff's farm that was out of use for long time. They complied with the three conditions. DWl further testified that, in expanding the road heading to the burrow pit through the plaintiff's farm, they used their working gears. After they had fulfilled the three conditions and expanded the road and started taking murram from the burrow pit, after taking four or five tracks from the burrow pit, some of the plaintiff's employees went to the burrow pit and stopped the defendant from continuing with extraction of more materials. All that happened at the time DWl was at the site. They reported the matter to the consultant one Josephat Byemelwa who in return showed them an alternative place to collect materials. It is TANROADS who showed them the burrow pit and saying that it belonged to Government. DWl did not participate in the meetings held with a view of discussing those claims. The meetings were attended by his bosses. DWl added that, Exhibit "P2" was once brought to their office but his boss refused to sign it. It was TANROADS that under the contract was supposed to pay compensation to people whose crops or properties were affected adding that, the defendant is not concerned with compensation. DWl further testified that, when they went to the burrow pit site, he saw it and it was big and wide that no one could see him if he were to get inside. In October, 2010, he went to the site and participated in the discussion. The road construction in Dumila-Rudewa was done as per the contract which also prescribed how they could get murram. Page 11 of 20 ,,, He added that, the sisal plantation was not part in the road construction contract which provided that TANROADS would compensate those affected by the road construction project. It was further testimony by DWl that, clause 3403 . of Exhibit "PS" required them to address matters concerning the properties that could be affected by the project. DWl however, did not know the volume or cubic metres of murram carried by each lorry/truck compared to the 36,000 cubic metres deposed in the 5th paragraph of the defendant's Written Statement of Defence. He said, though clause 3402 provides that the contractor would pay compensation, he was aware that the existing burrow pit was taken care of by· TANROADS adding that, it is true that there were some sisal plants that were uprooted in the course of expanding the road to the burrow pit. DWl also testified to know that as per the specifications under Exhibit "PS", the defendant was supposed to fill up the excavated land and plant trees, which was not done as the excavation exercise was stopped by the plaintiff saying that that was her area. She said, apart from the road expansion in her farm, they did not take away anything more than the 4-5 trucks of murram adding that, the road they asked for only ended at the burrow pit whose information and existence was given to them by TANROADS. Moreover, DWl testified that, the burrow pit belonged to the Government and he knows that the area covered by the road expansion belonged to the plaintiff. DWl informed TANROADS about the Sisal they uprooted in the plaintiff's farm in the course of the road expansion though he did not know the number or the equivalent value. Besides, they did not fill the place where the 36,000 cubic metres of murram was collected from because they were stopped from continuing with the work or even to re-access the area. Page 12 of 20 (l Another testimony was that of DW2, a TANROADS road Engineer who testified that, in October, 2010 he was at TANROADS headquarters in Dar es Salaam in the Development Department where he served as a project Engineer. DW2 supervised three projects: (1) Nzega - Puge Road project (2) Dumila- Rudewa Road project, and (3) TANROADS Building Construction project in Dar es Salaam. DW2 dealt with the Dumila-Rudewa project from October, 2010 to 2012. The project had the defendant as her contractor and SMEC as a consultant. DW2 added that, the contract was entered by TANROADS as the employer and the defendant as Road contractor. Besides, there was another contract between the employer and SMEC on supervision. The roles which the employer had to carry out were to facilitate the contractor to access services like telephone, water and power and all matters requiring him to liaise with other entities. In the Dumila-Rudewa Project, TANROADS supervised the implementation of the project and facilitated the contractor to address matters related to compensation. DW2 added that, they wrote a letter to the Chief Government valuer and sent the Valuation Report to the District Commissioner and Regional Commissioner for Mvomero District and Morogoro Region respectively. In that project, they based on the material report to identify where to get materials like gravel, aggregates, water and sand. They got gravels from Dumila, Msowero, Rudewa and Magubike. In Msowero Village, there was a burrow pit that used to collect the materials they used in road repair. DW2 also testified that, the burrow pit belonged to the Government adding that, all conditions were followed to ensure that the area where gravels and other materials were collected from, were lawfully acquired by the Government. Page 13 of 20 Moreover, the Msowero burrow pit was in use for a very long time and that the same was used in repairing the road from Kilosa-Rudewa to Dumila. DW2 added that, it was TANROADS who handed over the Msowero burrow pit to the defendant whereas upon that handing over, the defendant needed to improve the road that headed to the burrow pit for her tracks to access it for purposes of collecting gravel materials. By improving that road, TANROADS would pay compensation for the destroyed crops adding that such compensation had been paid. After the defendant had improved the road heading to the Msowero burrow pit, the plaintiff abruptly stopped her from collecting the materials. The defendant shifted her trucks and working gears to her camp and looked for another burrow pit and reported to them. Within the same village, they managed to acquire another area where they opened it as a new burrow pit. DW2 added that, it is the plaintiff who stopped the defendant from using the other burrow pit. Besides, he saw the claims raised against the defendant claiming for compensation for the gravels collected from that burrow pit. To DW2, that was strange as the burrow pit had been lawfully acquired by the Government whereas the compensation covered crops, houses and other developments effected on the area and the land. DW2 also testified that, they do not compensate for gravel and other materials excavated from inside the burrow pits which normally fall under mining laws. In the contract they executed with the defendant, the defendant was duty bound to effect the re-commissioning (refilling the excavated pit to its original level). However, the procedure adhered to in re-commissioning must be approved by the National Environmental Council (NEMC). He added that, no re- commissioning was done at the Msowero burrow pit because the defendant was Page 14 of 20 stopped from extracting and collecting the gravel materials and was not any more allowed to stay and work there. As to the claim of Tshs. 691,142,690/= for the extracted gravels, the same, he said, cannot be paid by the employer or the contractor because for one to sell gravel must be licensed by the Ministry of Energy and Minerals entitling him so to do. Besides, the rate of the gravels in the project at issue was about Tshs. 2,000/= per cubic metres, being the rate for materials brought to the site. Moreover, DW2 added, the burrow pit was inspected before the same was handed over to the defendant. That, that was the burrow pit that was dug since 1940s when the Kilosa-Rudewa-Dumila road was published in the German Government Gazette. He said, they were thus obliged to spot the areas potential for the defendant to get construction materials and burrow pit and services like water, and road reserve. DW2 added that, TANROADS once compensated the plaintiff in relation to the road diversion through the plaintiff's farm adding that the areas where murram/gravel is found is not suitable for crops. DW2 added that, the road expanded by the defendant was in existence whereas the expansion of the road was within the range of five metres. In his final submission, the defendant's counsel submitted for the 1st issue that, as the testimonies by PW3, PW4 and DW1 were clear to the effect that, one Mr. Amit discussed with the officer of the defendant and allowed the defendant to enter into the land, the entrance of the defendant to the plaintiff's land was therefore lawful. Regarding the 2nd issue, the defendant's counsel submitted that, the testimony by PW2 was that they have been in the farm since 1993 and that the farm had no sisal plants. Page 15 of 20 . . Moreover, there was no proof that there was any loss occasioned in the course of passage save for the effect caused by expansion of the path and road which PW4 testified that was paid for by the third party. Furthermore, the plaintiff did not establish ownership of the disputed land as required under sections 110 & 111 of the Law of Evidence Act, [CAP. 6 R.E, 2002]. Besides, being specific damages, the same ought to have been proved as reiterated by the Court of Appeal of Tanzania in Tanzania Electric Supply Company Limited vs. Timber Enterprises Limited, Civil Appeal No. 26 of 2000 (Mwanza Registry) (Unreported), otherwise, it will be difficult for the Court to order for compensation. Regarding the 3rd issue, the defendant's counsel submitted that, there was no evidence that there were burrow materials excavated from the plaintiff's land and that, PWS testified that, the burrow pit was not a new one as was in use for years as also stated by DWl & DW2. That, no evaluation report was tendered to substantiate the claimed compensation hence, answering that issue negatively. Consequently, this takes us to the 4th issue that the plaintiff, having failed to establish her claims, she is entitled to nothing other than dismissal of the suit with costs. On his part, the plaintiff's counsel submitted for the 1st issue that, paragraph 2 of the Written Statement of Defence and per the testimonies of PWl, PW2, PW3, PW4 and DWl are clear that, the defendant while upgrading the Dumila - Kilosa road, entered into the plaintiff's land for the purposes of excavating raw materials for road construction. Regarding the 2nd issue, the plaintiff's counsel submitted that, the area where the excavation of gravel materials was carried out was previously covered Page 16 of 20 ( ' t by sisal plants as testified by PW1, PW2, PW3 and PW4 whereas according to PW2, the covered area is about 5 - 6 acres. Besides, he said, the burrow pit for the first time was excavated by the defendant adding that, the excavation was done for almost one month as per paragraph 5 of the Written Statement of Defence whereas a valuer report revealed that the excavated materials from the burrow pit were 98,734.67 cubic metres. As to the third issue, the plaintiff's counsel submitted that, the affidavit by Wang Xiangdong in evidence by the defendant was to the effect that, the plaintiff is entitled to compensation. In respect of the prayed reliefs, the plaintiff's counsel submitted that, the plaintiff's counsel urged to be awarded the sought prayers as per the plaint. For undisclosed reasons, the Third Party did not file her written submission as scheduled. Having gone through the pleadings, evidence, Court records and the respective submissions by counsels for the parties, the following are the deliberations of this Court in disposal. Regarding the first issue, as rightly submitted by the defendant's counsel, it is not disputed that, initially, entrance to the disputed piece of land had consent of the plaintiff's officials as testified by PW3 amongst that, after informing Mr. Amit of the defendant's conduct in the said area, Mr. Amit informed PW3 that there was a concluded special agreement which he was reluctant to disclose. In that regard, the testimony by PW3 (the plaintiff's own witness) to the effect that his boss one Mr. Amit informed him of the existence of such special agreement renders it clear and without hurdles that the defendant's initial Page 17 of 20 entrance in the disputed piece of land was consented thus, lawful. Consequently, the 1st framed issue is answered in the NEGATIVE. In respect of the 2nd issue as to whether by that entry, the defendant caused loss to the plaintiff in terms of the land, crops and business, notably, there is no evidence as to the value of the sisal plants alleged to have been destroyed by the conduct of the defendant under instructions of the third party. Moreover, DW2 was clear in his evidence that the plaintiff had been compensated as to the affected plants in the course and as to the compensation for the road diversion though no documentary evidence was tendered whatsoever to that effect. Besides, as correctly submitted by the defendant's counsel, in terms of section 110(1) of the Law of Evidence Act (supra), the plaintiff was duty bound to avail to this Court a Valuer's Report establishing the occasioned loss of sisal plants in executing the said road construction. Short of that, no Court of law can award in favour of such flimsy claims. Consequently, the 2nd issue likewise is answered in the NEGATIVE. Regarding the third framed issue for determination as to whether the plaintiff is entitled to compensation for the gravel materials excavated by the defendant from the plaintiff's land and as to what extent, it should be borne in mind that, in terms of section 2 of the Land Act, [CAP. 113 R.E, 2002], the term "land" is defined as hereunder:- ""Land" includes the surface of the earth and the earth below the surface and all substances other than minerals or petroleum forming part of or below the surface, things naturally growing on the land, buildings and other structures permanently affixed to or under land and land covered by water". Page 18 of 20 ' • f I I, Besides, in terms of section 4 of the Land Act (supra), all the Land in Tanzania belongs to the public vested under the trusteeship of the President of the United Republic of Tanzania. Section 4 reads:- "(1) All land in Tanzania shall continue to be public land and remain vested in the President as trustee for and on behalf of all the citizens of Tanzania. (2) The President and every person to whom the President may delegate any of his functions under this Act, and any person exercising powers under this Act, shall at all times exercise those functions and powers and discharge duties as a trustee of all the land in Tanzania so as to advance the economic and social welfare of the citizens". It is thus understandably therefore, that, in Tanzania, nobody owns land. What one owns rather is the interest on land whereas upon need of acquisition for public interest, one should be duly and promptly compensated in terms of the Land (Assessment of the Value of Land for Compensation) Regulation, 2001 vide Government Notice No. 78 published on 04/05/2001. In other words, what one owns in land is what is referred to as usufructuary right, that is, the right to use land and not the right of ownership of the same. That is why in Tanzania, what is granted is a Right of Occupancy (Right to Occupy in land) and not Right of Ownership (Right to own Land). Right of Occupancy in land is distinguished from Right of Ownership of the same. Being the case therefore, the plaintiff had no and has no right over whatever was or is beneath the land surface including the said murram. As such, under the Land Act (supra) and the Land Acquisition Act, [CAP. 334 R.E, 2002], the Commissioner for Lands vide consent of the President of the United Republic of Tanzania can acquire Land for public interest after effecting prompt and adequate compensation for the unexhausted improvements amongst as well as with an option for an alternative land. Page 19 of 20 Therefore, from the testimony by DW2, evidence that the burrow pit was used by the Government for quite long, then, if the same falls in the Certificate of Title of the plaintiff, then, the responsible authorities ought to have initiated the process of acquisition of the said land and ultimately compensate the plaintiff basing on what I have endeavoured to narrate. If that was not done, the plaintiff has to initiate the compensation process though that ought to have been the initial and foremost before acquisition. For the purposes of the 3rd issue, the same is answered in the NEGATIVE. As to the 4th issue on the reliefs parties are entitled to, since the matter has been prematurely filed before this Court as the plaintiff did not exhaust all the available remedies before the prescribed authorities under the Land Act (supra) and Land Acquisition Act (supra) and considering that the plaintiff did not establish as to value of the destructed sisal plants, thus, the suit is devoid of merits and is hereby dismissed with costs. It is so ordered. 4t Judgment delivered this 20 th day of July, 2016 in presence of Messrs.Chacha Mkohi & Erasto Ngusa, Advocates for the Plaintiff and Messrs.Thomas Brash &, Byabato, Advocates for the Defendant and Necessary \ Party respectively. The right of LK.l~.IL.LI Page 20 of 20