saleh hamisi lufedha vstanzania electrical supply company 2020 tzhclandd 3883 11 november 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 158 OF 2017 SALEH HAMISI LUFEDHA................................................................... PLAINTIFF VERSUS TANZANIA ELECTRICAL SUPPLY COMPANY................................... DEFENDANT Date of Ruling 10/11/2020 Date of the last order 28/09/2020 JUDGMENT I, MAIGE, J The plaintiff was among the persons who were affected by the Somanga- Kinyerezi 400KV Transmission Line Way leave Corridor Project carried out between 2013 to 2016. His unsurveyed piece of land located at Kivule, Temeke within Dar Es Salaam ("the suit property") was acquired for the project. It is not in dispute that, the plaintiff received compensation at the tune of TZS 48,325,000/=. The complaint by the plaintiff is that he was not adequately compensated. He is claiming for payment of TZS 121,336,860/= as total unpaid compensation in respect of the suit property. i The particulars of the inadequate compensation are pleaded in paragraphs 6,7 and 8 of the amended plaint as follows. First, while the size of the plaintiff's residential house was squire meters 110.5, the compensation covered only 89.7 squire meters. Two, the compensation process did not conform with the current market value of the suit property. To the plaintiff, the market value of the suit property was was TZS 155,124,265/= with an annual increase by 8 percent. Three, the value for the toilet and dam was not compensated for. Four, the plaintiff was paid TZS 200,000/= per month as accommodation allowance instead of the rate of TZS 350,000,000/= agreed upon. At the final pretrial conference two issues were framed. First, whether the plaintiff was fully compensated during the acquisition of the suit property. Two, to what relief are the parties entitled. In a bid to establish his case, the plaintiff called two witnesses including himself who testified as PW1. He told the Court that, on 4th September 2011, he was informed that the suit property would be acquired for the project. He testified further that, while the agreement was such that compensation would be paid within six months from the date of filling in exhibit P2, it was not until on 31st August 2016 when he received the same (exhibit P4). It was after being availed with a form entitled "Taratibu za Uthamini (exhibit P3). Before receiving the amount, it is further in the testimony, the plaintiff recorded his dissatisfaction with the quantum of 2 compensation. He was advised to lodge a complaint which he did (exhibit P5) but in no avail. He testifies further that, though the size of his house was 110.5 squire meters, the amount of compensation paid covered only 89.7 squire meters. The rate of payment, it is further in his testimony, departed from that which was proposed by the chief valuer. He was paid TZS 350,000/= per squire meter while the market value was 836,000/= per squire meter. The accommodation allowance, he further complains, was to be TZS 350,000 per month. He was however paid paid only TZS 200,000/= per month. He was not paid the value of his well he further claims. Next was Yasinta Benedict, a quantity surveyor from the National Construction Council. She testified as PW2. She produced a document entitled "National Construction Council, Construction Cost per Squire Metre in Tsh" which was admitted as exhibit P6. It is suggestive therein that, the cost of construction for Swahili house was 560,796.97 per squire meter in 2011 and 836,100,820 in 2016. On her part, the defendant also called two witnesses. Gilbert Simon Mroso, a land surveyor from the defendant testified as DW1. He told the Court that, after the defendant had taken over the project way back in 2014 from the initial contractor, it effected resurvey and revaluation of the properties to be acquired for the project. The suit property was among the properties that were the subject of the resurvey and revaluation. He said, 3 the amount of the compensation paid to the plaintiff was fair and adequate. The next defense witness was Magessa Senjo Kiselyi (DW2). This is a valuer from the offices of the Prime Minister. He has produced, which was admitted as DI, a valuation report dated April 2015. He told the Court that, in accordance with exhibit DI, what was paid to the plaintiff was TZS 48,325,000/=. The total amount of compensation paid for crops, toilet, septic tank, the well and land was TZS 37,893,500/=. In addition, he was paid TZS 3,031,430/= being 8 percent of the said amount as disturbance allowance. He was paid as well TZS 7,200,000 as accommodation allowance for 36 months. There was also payment of TZS 200,000/ as transport allowance. The size of the house as per exhibit DI was 89.7 while that of the bare land squire meter 192.7, it is in further in testimony. At the end of the trial the locus in quo was visited to establish what was the size of the house the subject of the dispute. Upon measurement of the house in the presence and participation of both parties and their counsel, it was established that the size of the house was 105.20 squire meters. The counsel had opportunities after the trial to address the Court generally by way of written submissions. I thank them, for their very persuasive submissions which have been duly considered in my judgment. 4 With that background, it may be appropriate to consider the merit or otherwise of the claim. I will start with the claim as to non-payment of part of the size of the house. In his plaint, the plaintiff claimed the size of unpaid house to be 20.7 squire meters. In his submissions, he has told the Court that it was 16 meters. Notably, his submissions is based on what was observed at the locus in quo. There was no useful comment from the defendant and her counsel on this aspect. In view of the indisputable evidence gathered from the locus in quo, I am in agreement with Miss. Audax, learned advocate for the plaintiff that, the size of the plaintiff's residential house was 105.7 squire meters. As the amount of compensation for the residential house was in respect of 89.7 squire meters, I agree with her that, the plaintiff was denied payment for the remaining 16 squire meters. This now takes me to the rate of payment. In accordance with exhibit DI, the plaintiff was paid TZS 350,000 per squire meter. In her submissions, Miss Audax has informed the Court that, in accordance with the evidence in exhibit DI, the amount approved for compensation was TZS 17,875,595,000/= while that which was paid in the process was TZS 12,467,835,000/=. Relying on the authority of the Court of Appeal in AG vs. Sisi Enterprises Ltd., Civil Appeal No. 30 of 2004, she has urged the Court to hold that, the plaintiff is entitled the rate of TZS 700,000/= per month. She submits further that, since the rate of compensation for modern houses, according to exhibit DI ranged between TZS 350,000/= to TZS 700,000/=, the plaintiff is entitled to the maximum. 5 I have considered the argument and with respect, I am unable to agree with the plaintiff and his counsel for three main reasons. First, while TZS 17,875,595,000/= was the total compensation amount apportioned for the project, the amount under discussion is limited to compensation of a house of one out of the hundreds of people affected by the project. Two, the plaintiff who had a burden of proof, did not produce any evidence to establish that his house was a modern house. He could also not be able to establish that his house falls under what is categorized in exhibit P6 as Swahili house. Besides, the claim raised in the written submission departs from what is pleaded in paragraphs 6 and 7 of the amended Plaint. The claim therefore is barred by the rule against departure from pleadings set out in order VII rule 7 of the CPC. My holding in respect of this item of the claim is that, the plaintiff is entitled to payment for the remaining 16 squire meters that was left unpaid at the same rate of TZS 350,000/= per month. The plaintiff also claims interest at commercial rate. The reason being that payment of compensation was not made within six months as the law requires. He submits further that, while in accordance with exhibit DI, compensation was to be paid within six months from the date of filling in form number 1, it was not until in 2016 when the same was paid. Under rule 13 of the Land (Assessment of the Value of Land for Compensation) GN No. 78/2001, she submits, the affected person is entitled to compensation at commercial rate. The provisions read as follows:- 6 13(1) the interest upon any compensation shall be paid by the Government or the local Government Authority only where there is no prompt payment of compensation made. 13(2) for purpose of computing interest payable upon compensation "prompt payment of compensation means payment of compensation within six months after the subject land has been acquired or revoked. 13(3) where the amount for compensation remains unpaid for six months after the acquisition or revocation, interest at the average percentage rate of interest offered by commercial banks on fixed deposits shall be recovered until such compensation is paid. Under the provisions above quoted, it is plain that, the six months period within which compensation has to be paid starts running from the moment in time when the property is acquired or the title thereon revoked. It does not, as pictured in the evidence by PW1, arise from the date of filing of the form number 1. I have read the amended plaint between lines and satisfied myself that the same is silent on when the suit property was acquired by the defendant. Besides, contrary to the suggestion by the plaintiff's counsel in her written submissions, interest at commercial rate has not been pleaded. It has not been sought in the relief clause either. As I understand the law, prejudgment interests constitutes a cause of action and must therefore be pleaded. In the circumstance therefore, I shall not grant the relief. In the circumstance, the suit succeeds to the extent of unpaid amount of compensation in respect of 16 squire meters of the house payable at the 7 rate of TZS 350,000/= per squire meter which is granted. The plaintiff shall also be entitled in terms of section 29 of the CPC, interest at the Court rate of 12% per annum from the date of judgment to the date of full payment of the decretal sum. He is also entitled to the costs of prosecuting the suit. Dated this 10th day of November 2020. aige JUDGE 10/11/2020 Judgment delivered this 10th day of November 2020 in the presence of advocate Agnes Audax for the plaintiff and advocate Elias Mkumba for the defendant. / ) Maige JUDGE 10/11/2020 8