Link to pdf of original judgement
IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM
(CORAM: RAMADHANI, J.A., MSOFFE, J.A. and KAJI, J.A.)
CIVIL APPEAL NO. 30 OF 2004
THE ATTORNEY GENERAL
APPELLANT
VERSUS
SISI ENTERPRISES LTD
.....RESPONDENT
(Appeal from the judgment of the High Court of Tanzania at Dar es Salaam)
(Ihema, J.)
dated the 16th day of October, 2003
in Civil Case No. 47 of 2001
JUDGMENT OF THE COURT MSOFFE, J.A:
In Civil Case No. 47/2001 of the High Court of Tanzania at Dar es Salaam the respondent herein sought, inter alia, a declaratory order that the acquisition of all that piece of land comprised in certificate of title No. 16395 measuring 21.3 acres and popularly known as Drive in Cinema, was unlawful.
The respondent's case was that it was the holder of the land in issue since 18/6/1966 in a 99 years lease. That, consequent upon being granted the lease it developed the land by building the complex known as Drive in Cinema. On 5/6/1999 it signed a letter of intent with the Department of State of the Government of the United States of America to enter into an exclusive option to purchase the land at a consideration of USD 3,000,000/=. However, before the intent could materialize it received a letter from the Commissioner for Lands informing it that the Government of Tanzania intended to acquire the land under S. 4 of the Land Acquisition Act, 1967. Inspite of its strong objections to the intended acquisition, the Government went ahead to acquire the land and eventually offered it to the Embassy of the United States of America. In return, the Government offered to compensate it a sum of Tshs.602,363,000/=. The respondent declined to accept the above sum of money for being inadequate and accordingly proceeded to file the above mentioned suit.
On the other hand, the case for the appellant herein was that the acquisition of the land was lawful under the Land Acquisition Act, 1967. That on 16/7/1999 the President vide General Notice No. 469
acquired the land essentially because the respondent had ceased to operate the Drive in Cinema, and the land was required for a public purpose. And that, at any rate, the President's intention to acquire the land was published in the aforesaid Government Gazette on 16/7/1999.
The trial court framed the following issues:-
(a)
Whether there was proper and sufficient notice for acquiring the suit land under the Land Acquisition Act 1967.
(b)
Whether the purpose in which the land was purportedly acquired is a public purpose under section 4 of the Land Acquisition Act 1967.
(c)
Whether the proposed compensation offered by the government is adequate having regard to all the circumstances of the case.
After a full trial the High Court, Ihema, J. answered the issues in the negative. In essence the High Court decided that the acquisition was not in public interest and no reasonable
notice was given before the said acquisition. Henceforth, the
said court ordered compensation of USD 3,000,000 with interest at market rate under Section 3 (1) (g) (vii) of the Land Act No. 4/99.
This is an appeal against the above decision of the High Court. There-are four grounds of appeai which read as follows: -
1.
That the trial court erred in law and in fact in its finding that there was no proper and sufficient notice in acquiring the suit land under the Land Acquisition Act, 1967.
2.
That the trial court erred in law and in fact in its finding that the acquisition was not for public purpose as provided for under Section 4 of the Land Acquisition Act, 1967.
3.
That the trial court erred in law and in fact in finding that the compensation of the suit land be pegged at USD 3,000,000 or its equivalent in Tanzania shillings for it is on the high side.
4. That the trial court erred in law in its
finding and granting interest at the
current commercial rate as provided for
under Section 3 (g) of the Land Act No.
4/99 for at the time of filing the suit this
law was not operative.
At the hearing of the appeal the parties were represented by the-same advocates who appeared on their behalf at the trial. Mr. Ngwembe, learned Senior State Attorney, appeared for the appellant. On the other hand Mr. Bomani, learned advocate, appeared and resisted the appeal on behalf of the respondent.
We propose to begin with the second ground of appeal. The crucial Issue here is whether the acquisition for purposes of the American embassy was in public interest. In his oral submission on the point, Mr. Ngwembe essentially repeated his earlier submission at the trial:- That the general public was to benefit from services offered by the American embassy at the acquired piece of land. With respect, we do not agree with him that the acquisition was in public interest. We say so for reasons which will emerge hereunder.
The starting point is the definition of "public interest/' or "public
purpose" as it is sometimes called. In Stroud's Judicial Dictionary
\ Fifth Edition, Vol. 4 a matter of public interest:
"is that in which a class of the community ha.ve a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary, Seventh Edition by Bryan A. Garner, "public interest" means:-
- "1. The general welfare of the public that
warrants recognition and protection.
2. Something in which the public as a whole has a stake; esp. an interest that justifies governmental regulation."
Black's Law Dictionary also defines "public purpose" as:-
"An action by or at the direction of a government for the benefit of the Community as a whole."
In Ellis V. Home Office (1953) 2 QB 135, Morris LJ. stated:-
*
"One feature of the public interest is that
\
justice should always be done and should
be seen to be done."
To come back home, we have the case of Agro Industries Ltd Versus Attorney General 1994 TLR 43 where this Court cited a head note in B.P. Bhatt and Another Versus Habib Rajani 1958 EA 536 that to be in the "public interest":-
"it is not sufficient that public interest may benefit indirectly or incidentally, if the primary purpose of the application is to benefit the landlord's interest and not that of the public."
In Bhatt's case, Law J. relied on the Indian case of Hawabai Franjee Petit Versus Secretary of State for India 1915 39 BOM 279 where in defining "public purpose" it was stated:-
"
the phrase, whatever else it
may mean, must include a purpose, that is to say an aim or object, in which the general interest of the community, as opposed to the particular interest of
individuals, is directly and vitally concerned."
\ In Agro's case (supra) this court then concluded:-
"So what do we understand by an action being in the public interest? We think it is so when looked at objectively with impartial eyes, the action is primarily and not incidentally in the interest of the public . . ."
In the light of the above definitions, it is clear to us that "public interest" or "public purpose" must include a purpose, that is to say an aim or object in which the general interest of the community is concerned or involved, as opposed to the particular interest of individuals or institutions.
In the instant case, the .acquisition was made under Section 4 (1) of the Land Acquisition Act, 1967 which reads:-
"4 (1) Land shall be deemed to be required for a public purpose where it is required for any of the following purposes:
(a) for exclusive Government use, for general public use, for any Government scheme, for the development of agricultural land or
for the provision of sites for industrial, agricultural or commercial development, social services or housing;
(b)
for or in connection with sanitary improvement of any kind, including reclamations;
(c)
