Land Cse No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 332 OF 2022 SALUM MBEGU JULIUS..................................................................... 1st PLAINTIFF MOHAMEDI M. MDEGE...................................................................... 2nd PLAINTIFF RAMADHANI O. KIBAMVUA.............................................................. 3rd PLAINTIFF MWAJUMA H. MSONDE.................................................................... 4th PLAINTIFF MBEGU J. ADAMU.................................... 5th PLAINTIFF JULIETA C. KAVANGA........................................................................ 6th PLAINTIFF ZAINABU M. MWALABU..................................................................... 7™ PLAINTIFF SALIMA A. KINOVUGE....................................................................... 8th PLAINTIFF DUNIA M. JULIUS............................................................................. 9th PLAINTIFF KIDAWA CHELEANI........................................................................ 10™ PLAINTIFF JUMA S. KWALO.............................................................................. 11™ PLAINTIFF FATUMA S. MAKONGOLO.................................................................12™ PLAINTIFF KIDAWA R. CHEZO.......................................................................... 13™ PLAINTIFF SOFIA A. PAZI................................................................................. 14™ PLAINTIFF MWANNE H. SIMENTA.................................................................... 15™ PLAINTIFF VERSUS TANZANIA ELECTRICITY SUPPLY COMPANY LIMITED................... 1st DEFENDANT TANZANIA RAILWAY COOPERATION............................................. 2nd DEFENDANT THE ATTORNYE GENERAL.............................................................. 3rd DEFENDANT SOLICITOR GENERAL...................................................................... 4™ DEFENDANT RAJABU SAID KITARA........................................................................ THIRD PARTY 1 JUDGMENT 18th to 26th September, 2024 E.B. LUVANDA, J In this suit, the Plaintiffs named above claims against the Defendants above named jointly and severally for the following reliefs: One, payment of compensation amounted to TZS 11,128,000.00 which are not paid by the Defendants to the Plaintiffs as compensation of the Plaintiffs' landed properties situated at Makutupora Ngeta, Kibaha Coast Region for today is unfair (sic) for the value market; Two, payment of the total sum of TZS 80,000,000.00 being the fair compensation by the Defendants to the Plaintiffs in respect of the compensation with 220kv transmission line from Dar es Salaam to Morogoro for Standard Gauge Railway project power supply (SGR LOT 1); Three, payment of general damages to be assessed by the court; Four, interest on the decretal sum at the court rate of 12% per annum from the date of judgment to the date of full and final payment; Five, costs of the suit to be borne by the Defendants; Six, any other relief that this Court may deem fit to grant. According to the evidence tendered, the land owned by the Plaintiffs measuring sixty acres was among land affected by 220 voltage kilovolts electricity line for a project of Standard Gauge Railway (SGR) at Makutopora-Ngeta Village Kibaha Pwani Region. Omari Ally Mataka (DW2) who is a land surveyor asserted that during the initial physical verification two individuals were booked as owners of 2 two parcel of land: Salum Mbegu Julius (PW2 who is also among the Plaintiffs herein) who was given valuation No. TSC/KBH/MAK/019 (hereinafter to be referred simply as No. 019) and Rajabu Said Kitala (DW1 who is the Third Party) who was booked under No. TSC/KBH/MAK/018 (hereafter to be referred as No. 018). It appears thereafter, arose a dispute in respect of the two areas named above, which Akram Said Lipemba (DW3) described to be two fold: the first is a fact that resurfaced a group of thirteen people from the neighbouring village of Kikongo who were also claimed their areas to have not been valued, where that group of people exhibited area No. 018 and 019, and were alleged backed by their chairperson who claimed those area falling under Kikongo Village and not Makutopola-Ngeta Village. In view of that, DW3 asserted that they opted to merge and consolidate the two areas and marked them No. 018 and valued it at TZS 11,128,000.00. It appears that thereafter DW1 managed to pocket a sum of TZS 11,128,000.00 from the Second Defendant after being introduced by the First Defendant being the owner of area No. 018. Meanwhile, PW2 et al, procured a decision from Kikongo ward Tribunal which declared them as owners of the suit land of sixty acres under the umbrella of Jitegemee Group, as per exhibit P2. DW1 refuted a claim by the Defendants that his (DW1) farm was merged with that of No. 019. DW1 maintained that his farm was identified, numbered and valued separately. 3 In view of the preface above, issues framed for determination are: One, whether the Plaintiffs and Third Party hold the same land in dispute; Two, whether compensation was paid to the owners of the land in dispute; Three, reliefs that parties are entitled. Issue number one. The same cannot detain me much. The evidence presented by Ramadhani Omari Kibamvua (PW1), PW2, Julietha Cosmas Kavanga (PW3), Mwanne Haruna Simenta (PW4) who testified on behalf of the Plaintiffs; DW2, DW3 who testified on behalf of the Defendants; DW1 who testified for Third Party, all adduced on similar accounts of facts to the effect that area No. 019 and 018 are not similar and the same, rather comprises different parcel of land. Even the valuation form that is Fomu ya Uthamani Na. 3 for Ref N. TSC/KBH/MAK/O18, exhibit DI, suggest the land measuring 28,380.10 square meters, while Form with Ref No. TSC/KBH/MAK/019, exhibit D2, depict a land t measuring 13,706.9 square meters. Therefore land No. 018 and 019 are distinct and completely different, that is why DW2 identified them with different reference number. Had it been the same, could not have been given two unidentical reference numbers. Therefore, it is DW3 who opted to merge and consolidate the two areas for reason best known to himself. This is because, the explanation by DW3 that they merged after the dispute arose, was un called for. I am saying it is uncalled for, for reason that, there was no any dispute 4 between the Plaintiffs and Third Party as among rival competing over the similar land. Rather they had a dispute with strangers who invaded their land. For another, assuming the said merging was necessary, why DW3 merged in a way and manner which had the devastating effects of fusing and abolishing existence of farm No. 019, and retained No. 018. Why DW3 did not see a necessitate of renaming and indicating both numbers for purpose of proper and consistence of coding and records. To my view, merging by way of fusing the identification of one farm, cannot be said it was done in good faith, rather it was a cause for confusion and detrimental to the Plaintiffs. For that reason, issue number one is ruled on the negative. Issue number two, whether compensation was paid to the owners of the land in dispute. There is no gain saying that no compensation was reported to have been paid to owners of land No. 019. DW1 disowned receiving payment on behalf of owners of land No. 019. The Defendants failed to substantiate as to why and how they paid DW1 for the farm No. 019. For that reason, I hold a view that owners for land No. 019 were not paid their compensation. Issue number three, reliefs to parties. The Plaintiffs claimed payment of TZS 11,128,000.00 as compensation for their land affected by the project. Although the Plaintiffs did not tender any valuation report depicting that value in respect of their land, but to my view the amount is fair, just and equitable. Therefore, 5 it is endorsed without any modification. The Plaintiffs also prayed for TZS 80,000,000.00 as compensation, alleged compensation for 220 kv transmission line from Dar es Salaam to Morogoro. This amount is replica to a claim of compensation I have just adjudged above. Above all the Plaintiffs had no valuation report whatsoever showing that the value of their land located at Makutopola-Ngeta Village measuring 13,706.9 square meters as per exhibit D2 which was acquired for the project, fetch a value of TZS 80,000,000.00 whether as forced sale value or on a given market. To me this claim apart from being replica to a sum of TZS 11,128,000.00 decreed above, is too exorbitant and exaggerated one. Therefore, it is denied. The Plaintiffs also claimed for general damages. To my view, owing to the up and down on the part of the Plaintiffs fighting for their rights at Kikongo Ward Tribunal, making follow up, general inconvenience, suffering for their land being acquired without prompt compensation, attract intervention by the Court by awarding general damages to atone the said suffering. But in so far the wrong suffered by the Plaintiff was not in a form of actual financial loss, I rule that the Plaintiffs will be entitled to nominal damages. This is because none of the Plaintiffs witnesses (PW1, PW2, PW3, PW4) asserted any actual financial loss at individual capacity or Kikundi cha Jitegemee, as a whole. 6 Winfield & Jolowicz on Tort, Fifteenth Edition, at page 743, commented, I quote, 'Nominal damages are awarded when the plaintiff's legal right has been infringed but he has suffered no actual damage, as can most readily occur in the case of torts which are actionable perse, for example, trespass to land' This applies herein where the Defendants acquired a land from the Plaintiffs without effecting compensation as I have stated above. I therefore assess a sum of TZS 10,000,000.00 as reasonable for the wrong doing committed by the Defendants. On top of that a sum of TZS 11,128,000.00 and TZS 10,000,000.00 will attract an interest at the court rate of 7% from the date hereof till payment in full. The Defendants will also assist the Plaintiffs to cover an aspect of legal fees only. The Third Party is therefore exonerated form liability whatsoever. The suit is granted with costs subject to reservation above. 7 Judgment delivered in the presence of Mr. Masuna Gabriel Kunju Advocate for the Third Party also holding brief for Mr. Emmanuel William Kessy learned Counsel for Plaintiffs, Salehe Manoro learned State Attorney for Defendants. 8