yahaya hamis mboneye vs tanzania roads agency 2 otherstanroad 2023 tzhc 20117 11 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF KIGOMA)

ATKIGOMA LAND CASE NO. 18 OF 2022

YAHAYA HAMIS MBONEYE PLANTIFF

V E R SU S

TANZANIA NATIONAL ROADS AGENCY (TANROADS) 15T DEFENDANT CONSTRUCTION GROUP CO LIMITED (ZCCC) 2 N o DE FE N DA N T THE ATTORNEY GENERAL 3Ro DEFENDANT Date of Last O rder: 18.07.2023 Date of Judgem ent: 11.08.2023

JUDGEMENT M A G O IG A , J. The plaintiff, YAHAYA HAMIS MBONEYE by way of plaint instituted the instant suit against the abovenamed defendants jointly and severally praying for judgement and decree in the following orders, namely: i. Declaration that the said suit land is lawfully owned by the plaintiff; ii. Declaration that the 1st defendant and the 2nd defendant trespassed to the suit land owned by the plaintiff; iii. Payment of Tshs. One Hundred and Fifty Million Only (Tshs.150,000,000.00) being the compensation for the plaintiff's suit land; * 1 iv. Payment of Tshs. Fifty Million (Tshs.50,000,000.00) being genera\ damages; v. Costs of this suit v i. Any other reliefs this honourable court may deem fit and just to grant. Upon being served, the 1 '' and 3,d defendants filed a joint written statement of defence and the 2"d defendant filed a written statement of defence all disputing the plaintiff's claims and in strong terms urged this court to dismiss this suit with costs. The facts pertaining to this suit are not complicated. The plaintiff alleges to own by way of purchase a suit land comprising of 2 hactres located at Hwazi area, Kigondo Ward within Kasulu district and Kigoma region. Facts went on that after buying the suit land, he planted trees known as cypress four months old. Further facts go that the 1st and 2nd defendants looking for rubbles for their construction

business, approached the plaintiff to use his land but no deal was reached. Consequently, the 1st defendant under the instructions of the 2nd defendant invaded the suit land and started extracting rubbles causing the plaintiff to suffer loss and hence this suit claiming the relief as contained in the plaint. ~ 2 B e fo re h e a r in g c o mm e n c e d the fo ll o win g is s u e s w e re fra m e d a n d a g ree d be tw ee n p a rt ie s fo r th e d e te rm in a tio n o f th is s u it, n a m e ly : 1 . W h e th e r th e pla in tiff ma d e an y u ne x h au s tiv e imp ro ve m e n ts o n the suit lan d ; 2 . W he th e r th e re w a s p rope r v a lu a tio n d o n e a t th e su it lan d ; 3 . To w ha t re lie fs pa rt ie s a re en title d to ? W h e n th is s u it w as ca ll e d fo r h e a ring , th e p la in tiff w a s e njo y in g th e lega l s e rv ic es o f M r .A b d u lh e ri Ah m ed , le a rn e d a d vo c a te, w h ile th e 1 st and 3rd defendants had the legal services of Mr. Allan Shija and Anord Simeo, learned State Attorneys and z= defendant has the legal services of Mr. Hamis Kimilomilo, learned advocate. The plaintiff in proof of his case called 3 witnesses and tendered in evidence 3 exhibits. The defence case was fended by 4 witnesses and tendered in evidence 1 exhibit. The first witness for the plaintiff was plaintiff himself, who for purposes of these proceedings and

judgement is referred as "PW1". PW1 under oath told the court he is here claiming compensation for damage done to his land which is Tshs.150,000,000.00. According to PW1, the land in dispute is located at Kidiama village, Kyagendo ward within Kasulu urban and is measuring 2 acres. PW1 went on telling the court that, he bought the disputed land on 8/6/2016 for Tshs.12,000,000.00 which had 10 ~ 3 mango trees and planted therein 40 mango, 60 avocados for business purposes and 3500 pinus trees all for production of medication. PWl told the court that, the land was intended for construction of a dispensary. Further testimony of PWl was that in 2021 he was approached by the TANROADS and Chinese company who wanted to extract moram from his farm but he refused because he had planted trees therein. According to PWl, despite his resistance, the Chinise Company under instructions of the 1st defendant entered the land without compensation destroyed the planted trees and extract moram without any compromise. PWl when made a follow up of the matter was told that he was entitled to payment of Tshs.3,900,000.00. PWl tendered exhibit Pl- sale st agreement and exhibit P2- 90 days' notice to sue the 1 and 3,d defendants. Equally, PW1 tendered 4 pictures as exhibit P3. Further, PWl told the court that, the damage continues and the place has been damaged and is now a ditch with little trees not

touched. On that note, PWl prayed that this suit be granted as prayed with costs. Under cross examination by Mr. Shija, PWl told the court that he had no calculation on how he got the amount of Tshs.150,000,000.00 claimed in the plaint. Pressed with question, PWl admitted that no economic activities were going on in the plot in dispute. Equally PWl admitted was ~ 4 called to be paid Tshs.3,900,000.00 but refused. PWl asked if he had any valuation report to prove the value claimed replied to have none. Under cross examination by Mr. Kimilomilo, PW! told the court that he can't tell the value of trees. Asked who took the pictures, PWl told the court he took them himself but when shown the picture and his face was seen he changed the story that he gave someone to take. PWl pressed with question, admitted that he had no contract with herbal clinic which promised to pay him Tshs.4,000,000.00 per month. Under re-examination by Mr. Ahmed, PWl told the court that, his basic claims are as in the plaint. Next for plaintiff was Mr. RAJABU JACKSON MBONA referred in the proceedings and, in this judgement as "PW2". PW2 under affirmation told the court that, he was given job of planting pinus, mango and avocado in the entire plot in December 2020. According to PW2, he planted 40 mango trees, 60 Avocado trees, Alvoera tree were 1000 and natural trees. PW2 went on telling the court that, in

2021 Tanroads and nd 2 defendant trespassed the land and destroyed the trees. Under cross examination by Mr. Shija, PW2 told the court that the price of land depends on negotiations and the trees were small. 5 Under cross examination by Mr. Kimilomilo, PW2 told the court that he was told by PW! that he bought the plot for Tshs.12,000,000.00 but can't tell the size of the plot in dispute. Mr. Ahmed had nothing to re-examine PW2. Next was Mr. JUDAS LUBOGE referred in these proceedings and in this judgement as "PW3." PW3 told the court he is the one who witnessed the sale transaction and the land was 2 acres and were involved before the moram was taken. Under cross examination by Mr. Shija, PW3 told the court that the price depends on negotiations and he only witnessed 10 mango trees. Under cross examination by Mr. Kimilomilo, PW3's testimony is that he witnessed the sale. Under re-examination, PW3 told the court that he was not involved in planting trees. This marked the end of the case for prosecution and same was marked closed. The first defence witness was Eng. MANJEBE MANYAMA MASATU referred in the proceedings and in this judgement as "DWl". Under oath DW1 told the court he is an Engineer by profession working with Tanroads Kigoma with duties of supervising all construction works. According to DW1, he knows PW! through a valuation report done to his ~ 6 plot and was approved

by Chief Government Valuer showing the land was 1.83 acres and the value was Tshs.3,900,000.00. According to DWl, before using the plot all people were involved through the office of District Commissioner but the plaintiff refused to receive paym en t and that the place ta k e n is not worth Tshs.150,000,000.00. Under cross examination by Mr. Ahmed, DWl told the court that once an area is identified by the contract, the owners are identified, involved to show their respective boundaries and value the place. In this case, DWl told the court that, PWl was involved at all stages but refused payments. Under cross examination by Mr. Yugulila, DWl told the court that they got a report to act upon and PWl was told of the value of the land. Under re-examination by Mr. Simeo, DWl told the court the Valuer will come to testify and his education is not an issue in this suit. Next for defence was Mr. YORAM MBONEYE CHIJO referred in the proceedings and in this judgement as "DW 2". DW2 under oath told the court that he knows PWl through the process of excavation of moram because he lives far away. According to DW2, 8 people were affected and were fully involved including the plaintiff and his land had no unexhaustive improvement save for natural trees which were small. 7 Under cross examination by Mr. Kimilomilo, DW2 told the court the price of one acre in his street is Tshs.500,000.00 to

600,000.00. As to this case, DW2 told the court that he was involved but refused to sign at the en d. Under cross examination by Yugulila, DW2 told the court that they involved all people to be affected and had more than two meetings and it was resolved that their land be used after valuation and will be paid. Under re-examination by Mr. Simeo, DW2 told the court that the price per acres in his place is Tshs.600,000.00 Next was MR. RAPHAEL LAURENT RAFIKI referred in the proceedings and, in this judgement as "DW3". DW3 a valuer told the court that, under instruction of Tanroads, he did valuation at Kidiama in order to get place for exaction of the rubbles for road construction. According to DW3, he followed all procedures and involved everyone to be affected. DW3 tendered minutes of the meeting held on 22/05/2021 at Kidiama as e x h i b i t 0 1 . DW3 went on telling the court that while the valuation was on, PW1 refused that the place was intended to for construction of the college and that there are natural trees which were not subject to compensation and as such denied to cooperate but they continued with the exercise. According to DW3, the area of land of PW1 was 1.83 acres which was 4 8 valued at Tshs.3,600,000.00 plus disturbance allowance making it Tshs.3,900,000.00 based on Government directives but in this case the valuer opted to use Tshs.2,000,000.00 per acre. DW3

tendered in evidence valuation report as exhibit D2. DW3 went on telling the court that after valuation, he sent the report to Government Chief Valuer who approved it for use. According to DW3, the claims by PWl are baseless because if he had any complaint to the amount of compensation was supposed to direct them to the Government Chief Valuer who could have formed a committee to investigate the complaint and if not satisfied to the Minister responsible for landed matters. According to DW3, all these legal procedures were n ot d o ne . Under cross examination by Mr. Kimilomilo, DW3 told the court that PWl refused to cooperate because the young grown vegetations were not subject to compensation and nothing economic was going on in the plot. Under cross examination by Mr. Yugulila, DW3 upon shown exhibit D1 told the court that PWl was present but refused to cooperate and was the one who showed boundaries of his plot but refused to sign exhibits D1 and D2. Under re-examination by Mr. Simeo, DW3 told the court that the plaintiff failed to use the available legal procedure in dealing with valuation. 9 Last but not least was Mr. MKAGUZI JOHN referred in the proceedings and, in this judgement as "DW4". Under oath told the court that, he works with the 2nd defendant and on the project in dispute Tanroads is responsible for all materials and process of getting moram is the work

of Tanroads. According to DW4, Tanroads followed all procedures and were given a go ahead and excavated moram. DW4 admitted knowing PW1 but pointed out that he refused to payment after valuation. Under cross examination by Mr. Simeo, DW4 told the court all people affected by excavation were paid save PW1 because he was not satisfied with valuation. Under cross examination by Mr. Yugulila, DW4 told the court that it was Tanroads which identified the place and is still in use. Under re-examination by Mr. Kimilomilo, DW4 told the court that it was the duty of Tanroads to deal with people affected but their duty was to pay, which they did. This was the end of the defence case and same was marked closed. Having summarized the evidence by all parties in this suit, the noble task of this court is to determine the merits of this suit. However, it is a cardinal principle of law that he who alleges must prove. And in Civil Cases the standard of proof is that of balance of probabilities. This ~ 10 principle is enshrined under provisions of section 110 and 111 of the Evidence Act, [Cap.6 R.E. 2022]. Section 110 reads as follows; "110(1) Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist" "(2) when a person is bound to prove the existence of any fact, it is said that the burden

ofproof lies on that person" Section 111 of the same law reads; "The burden of proof in a suit proceeding lies on the person who would fail if no evidence at all were given on either side" The burden of proving facts rests on the party who substantially assets the affirmation of the issue and not upon the party who desire it, for a negative is usually incapable of proof. Before embarking to answering the issues advanced, I have noted that there are facts which are not disputed in this case; One, that the plaintiff was the owner of 2 acres of land at Kidiama village within Kasulu urban bought on 08/09/2016, hence, entitled to compensation in"" 11 accordance with the law once is alienated from the use of the same. Two, that the 1st defendant and the 2nd defendant identified the same, among others, for excavation of rubbles for construction of the ongoing road construction. Three, that the plaintiff resisted compensation, hence, this suit for compensation of the value of the land and unexhaustive improvements, if any, in the suit land. However, what is in serious dispute is whether the plaintiff made an unexhaustive development on the land and whether a proper valuation was done at the suit land for compensation to the plaintiff. Now back to the suit and in answering the issues agreed. The first issue was couched that "whether the plaintiff made an unexhaustive improvement on the

suit land?" The plaintiff in pursuit to prove this issue testified that he had a number of planted trees which were 40 Mango trees, 60 Avocado, 3500 pinus and younger natural grown trees. In support of his story called PW2 who was the employee of PW1 in the disputed land who as well testified that there were 40 Mango trees, 60 Avocado trees and 1000 Alvoera trees. According to PW2, some died and were replanted and pinus was among the replanted trees and tendered exhibit P3- pictures showing the extent of damage caused to his land. 12 The defendants jointly denied the presence any planted tree that were above three metres to qualify for compensation as per the law. Under sections 2 of both Land Acts, [Cap 113 R.E 2019 and 114 R.E.2019] the phrase "unexhaustive improvement" is defined to mean "anything or any quality permanently attached to the land directly resulting from expenditure of capital or labour by occupier or any person acting on behalf and increasing the productive capacity, the utility, the sustainability of its environment quality and includes trees, standing crops and growing produce whether of agriculture or horticulture nature." Having carefully and dispassionately considered the rivaling and competing testimonies of the parties, I am inclined to answer the first issue in the negative. I will endeavour to explain why I am taking this stance. One, the plaintiff

apart from oral testimony but utterly failed to testify how and when he planted the said trees and how much it costed him to affixed them on the land. A mere cramming of the number of trees w it h o u t any evidence that th e re w e re a ctu a l tre e s for compensation was not enough on his part. Two, as to the pictures admitted as exhibit P3, PWl testified were taken by him but upon cross examined how was possible to take a photo and feature in the picture changed the story and said were taken by someone but without ._ 13 mentioning who someone was and was not even called to testify. The evidence of picture is prone to manipulation and one cannot tell exactly that were taken at the land in dispute. For that reason, I find them devoid of any useful merit in proving that were taken at site. Three, for the sake of argument, even if one agrees, the pictures were taken on site, but still do not show any trees planted, hence, qualifying for compensation as testified but only few scanty natural grown trees. In the whole, therefore, I find the first issue wanting of any proof, hence, found in the negative and dismissed. This takes this court to the second issue which was couched that "whether there was proper valuation done on the suit land?" This issue will not detain this court much for simple reason that no other valuation was tendered to counter the contents of exhibit D2. In

the absence of such evidence, this court is left with only one document which was approved by the Government Chief Valuer which shows that the suit land was 1.83 acres (approximately 2 acres) and valuation properly done. More so, the plaintiff pleaded his land was 2 hectars but his testimony and his witnesses testified that it was only two acres. The contents of his testimony, his witness and exhibit Pl and pleadings are at variance. The pleading claims for 2 hectares but the contents of exhibit Pl says the land bought was 2 acres. Now if one hectare is equal ~ 14 to 2.5 acres, it means the plaintiff had more than 5 acres but the plot that was used for excavation of rubbles is only 1.83, then, the valuation done was proper and the amount indicated in the valuation was proper. With that note, this issue to has to fail in the circumstances of this appeal and is hereby found in the affirmative that the valuation report was properly done at the suit land. The last but not least and usual issue was couched that "to what reliefs parties are entitled to?" In this suit, the plaintiff claimed several reliefs which I am going to determine one after the other. On the other hand, the defendants prayed that this suit be dismissed with costs. Despite finding the two issues in the negative, but much as there is no dispute that the plaintiff is the owner of the disputed land and same was taken

for use by the pt and 2nd defendants, I am not prepared to dismiss this suit. The first claim was declaration that the plaintiff is the lawful owner of the disputed land. This relief from the word go was noted by the defendants, hence, a non stater in this suit and, as such, without much ado, declare the plaintiff lawful owner of the disputed land. The second prayer was declaration that the pt and 2nd defendant trespassed to the suit land owned by the plaintiff. After hearing and considering parties testimonies and exhibits tendered I • declined to grant this prayer because at any rate the excavation of the 15 rubbles was for public interest despite the plaintiff resisting the valuation exercise same was done after involvement of all parties as exhibited in exhibit D2. Therefore, it is my considered finding that, there was no trespass in the circumstances of this suit. The third prayer was for payment of Tshs.150,000,000.00 being an amount for compensation for the plaintiff's suit land. Both defendants refuted the said amount and prayed that the same dismissed with costs. Having considered this prayer, no doubt, is a specific claim which needed strict proof for the same to be granted. But nothing was tendered in respect of this limb save exhibit Pl which showed the value of the land was purchased at Tshs. 12,000,000.00 in 2016. Though the defendants legal counsel squeezed

witnesses of the plaintiff on this limb but the contents of exhibit Pl showed and proved the plaintiff purchased the land for Tshs.12,000,000.00. This amount I can say was proved but given the fact that the actual land used was 1.83 acres and there is a v a l u a t io n report e x hib i t D2 , th e n I g r a nt the a m o u nt of Tshs.3,900,000.00 as the correct valued to be paid to the plaintiff in this s ui t . The plaintiff as well claimed Tshs.50,000,000.00 as general damages which was unnecessarily quantified. But given the kind of injury was not that much big, I grant Tshs.500,000.00 to the plaintiff for the ~ 16 inconveniences caused for distorting use purpose of buying the land in d is p u t e . That said and done, the suit is allowed to the extent explained and disallowed to the extend explained above with no order as to costs because most of the plaintiff's case failed. It is so ordered. 17