g)
for use by any person or group of persons who, in the opinion of the President, should be granted such land for agricultural development.
The crucial question here is whether the acquisition and the subsequent grant to
the US Embassy was within the ambit of the above sub-section. In our respectful opinion, the answer is in the negative. The acquisition
did not fit in any of the situations mentioned in the above sub-section. Indeed, the spirit of the above Act was, and indeed still
is, to acquire land for public purpose and not for any other use. Therefore, the validity of any acquisition under the Act depends on whether the land is required for a
public purpose. In the instant matter, the acquisition for purposes of the foreign embassy was not in line with the “public
purpose” or “public interest” envisaged under the Act. We will, therefore, find nothing to fault the trial Judge in his findings and conclusions on the point in issue.
We now move forward to consider the third and fourth grounds of appeal which were
argued together by Mr. Ngwembe. The complaint here is threefold:- One, that it was wrong to invoke the Land Act, 1999 in determining compensation and interest. Mr. Ngwembe maintained that sub-sections 1 and 2 of Section 12 of the Land Acquisition Act, 1967 were relevant for purposes of determining compensation and interest. Two, that the decreed sum of USD 3,000,000 was on the high side. Three, that it was wrong to enter the judgment in foreign currency in the light of the decision in Continental Agencies Versus A. C. Berrillo Co. Ltd (1971) EA 205, Mustafa, J.A., that a Tanzanian court can only enter judgment in Tanzania shillings.
On the other hand, Mr. Bomani was of the general view that both the Land Acquisition
Act, 1967 and the Land Act, 1999 did not apply for purposes of determining compensation. He urged that the point should be determined
on the basis of the prevailing market value where the criterion should be “willing buyer willing seller” basis. Hence,
in his view, the price agreed by the parties in the letter of intent would be appropriate compensation in the circumstances. As for
interest, he at first contended that a rate of 31% was pleaded at the trial. On reflection, he submitted that the respondent would
be satisfied with an award of interest prevailing at the time the judgment was given.
In considering the third and fourth grounds of appeal we think it is necessary to
introduce the subject by making the following observations. One, since the acquisition was unlawful as we have tried to demonstrate in the second ground of appeal, de jure the respondent remains the lawful owner of the suit premises. De facto, however, the embassy of the United States of America has been offered the land and a new chancery built on it. In the premises,
the only realistic and prudent option for the respondent is to be granted viable and adequate compensation for unexhausted improvements.
Two, in the light of the position we have taken on the second ground of appeal, it will follow that since the acquisition was not made
under the provisions of the Land Acquisition Act, 1967, then that Act would not apply in determining compensation. Likewise, the
Land Act 1999 would not be relevant because the acquisition took place before the Act came into force. The acquisition was made on
16/7/1999 and the said Act came into effect on 1/5/2001 by virtue of G.N. 485/2001.
Pursuant to the above introductory observations, it will now be clear that market
value will be the determining factor. We have considered the rival positions given by Messrs. Ngwembe and Bomani on the matter. In
the end, we are inclined to go along with the value given by the Government valuer. We do so not out of disrespect to the valuation
report given by the private valuer, PW2 Titus Kalokola. On the contrary, much as we respect the report, we are of the view that justice
will demand that we trust more the value given by the Government valuer than that of the private valuer. In this context, the value
of Tshs.998,467,000/= given by the Government valuer, DW2 Deodatus Kalyanda, will be fair and adequate compensation to the respondent.
We further think that this will be fair compensation given the fact that the unexhausted improvements were on a prime area of the
city.
A word about a judgment entered in foreign currency. Mr. Ngwembe’s contention
that a Tanzanian court cannot enter judgment in foreign currency in view of the decision in Continental Agencies is, with respect, no longer good law. The current position is as stated by this court in Transport Equipment Versus Valambhia and another 1993 TLR 91 where it was held, inter alia, that following the enactment of the Foreign Exchange Act No. 1 of 1992 which came into
force on 16/3/1992 as per G.N. 37/92, the principle of law propounded in Continental Agencies no longer applies in this country.
In view of the position we have taken on the second, third and fourth grounds of
appeal we find no need of discussing the first ground of appeal.
In the end result, and for the above reasons, we dismiss the appeal on ground two.
As for grounds three and four, we allow it to the following extent:- One, the amount of money due and payable to the respondent as compensation for unexhausted improvements is Tshs.998,467,000/=. Two, the above sum of money will attract interest at the commercial rate prevailing at the date of this judgment. Three, since we have dismissed and partly allowed the appeal, it will be fair that each party bears its own costs here and the court below.
We so order accordingly.
DATED at DAR ES SALAAM this 15th day of June, 2005.
