eva daniel mtasha vs tanzania wildlife management authorities and another 2023 tzhc 22204 31 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA CIVIL CASE NO. 02 OF 2022 EVA DANIEL MTASHA PLAINTIFF TANZANIA WILDLIFE MANAGEMENT AUTHOkITIES, DEFENDANT ATTORNEY GENERAL OF UNITED REPUBLIC OF TANZANIA 2"''DEFENDANT JUDGMENT 3'^ a 31 October 2023 Rwizile J Malanga is a village within the Kaliua district of the Tabora Region. It is not far away from Moyowosi game reserve. Eva Daniel Mtasha, the plaintiff lives in the same village and owns a herd of cattle. It appeared that one night, 124 of her cattle broke the enclosure and disappeared without her knowledge. Her two sons Richard Mtasha and Mshihiri Mtasha made a follow-up searching of the same. The same could not be found. After getting a permit from the village leaders and the police they went to the game reserve. They however found them there. When ui f V II ly U It- m ho ;y were arrested by game officers from the sa.me f LI It- game reserved and sent to the police station. 1 Court, found guilty of unlawful They were arraigned at Kibo ct zing in a game reserve, and convicted. They were entry fine or suffer an imprisonment term, their cattle sentenced to pay a forfeited. On appeal to this court, their conviction and were also sentence were set aside. The court directed 61 cattle forfeited to be returned to the lawful owner, in handling the same to the owner, 15 of the cattle were missing. - against the defendants for recovery of the plaintiff instituted this action missing cattle by compensation in the following claims; I. Payment of compensation of TZS 1,000,000.00 for each total of TZS 15,000,000.00 for 15 unrestored cattle. Hence a herds of cattle. Payment of interest at bank rate (22%) over the claimed ii. paragraph (i) herein above from 8.10.2019 principal sum in ntion of the suit cattle) to the (the date of seizure day of payment in final. Qf interest at court rate (7%) over the decretal sum iii. Payment of judgment till the date of payment in full from the date iv. Costs of this suit and any other relief. 2 The plaintiff has been under the service of Mr.Kabuguzi, a (earned advocate, while the respondents were represented by Mr. Anold Simeo, a learned State Attorney. To prove her case, the plaintiff, Eva Daniel Mtasha (Pwl) testified and called in one other witness, her son Shiva Mtasha (Pw2). The defence was mannered by two witnesses Alex Mbombo (Dwl) and Deogratius Charles (Dw2). At the hearing, the court was guided by three issues namely; i. Whether the first defendant unlawfully retained 15 herds of cattle property of the plaintiff. III Whether the plaintiff is entitled to compensation of TZ*^ 15,000,000.00 Hi. Whether some of the retained cattle died of illness iv. To what reliefs are the parties entitled? The evidence from both parties is clear to me that the plaintiff owned a herd of cattle. It is not in dispute that some 61 of her cattle were arrested upon having grazed in the Mayowosi game r another fellow, sons of Pwl were arrested, arraigned, convicted, and sentenced. In terms of the judgment of this court in (DC) Criminal Appeal No. 64 of 2019 which this court took judicial notice, shows their arrest, conviction, and sentence was illegal. the order of forfeiting the 61 ordered their release and That is why, it Dw2 testified against that herds of cattle turned down. Neither Dwl nor other evidence, it therefore that without any judgment. It is clear to me remains a final judgment. not handled to the The evidence has clearly shown, 15 cattle were explanation other than saying they died at the plaintiff. There is no the whole set of 51 cattle was in hands of the defendants. Because held unlawfully, its subset, 15 of them terms of the court judgment laboring too much, the first issue is were, held unlawfully too. Without unlawfully held b determined simply that 15 herds of cattle, were first defendant. doubt the second issue will Having determined the first issue, I have no have to say, compensation, in terms of this case, is no. follow suit. DUL 1 compensating the plaintiff for the general. It is specifically aiming at Her evidence, which was supported by Pw2 actual loss of 15 cattle. cattle an Ankole or Tutsi type with big horns simply said, that one 1,000,000.00 each. The defence weighed heavy and was worth TZS cattle would be sold at TZS disputed it and made the point that one the size and weight. 500,000.00 to 150,000.00 depending on It is unfortunate that none of the two competing sides brought documentary evidence to prove the assertions. There is therefore a conflict of evidence. The word of the plaintiff against that of the defendant. I think, under such circumstances, I go for the one discharged with the burden of proof. The plaintiff cast with the duty of proving how much her cattle weighed and therefore did not pour enough evidence to prove it could fetch such an attractive and lucrative some. I will, therefore, import my discretion and set the balance that it should be anything between TZS 500,000.00 and TZS 1,000,000.00. To sum it up, d the same at TZS.500,000.00 per herd because not all 15 cattle could be of the same weight. The third issue is about the illness of the cattle. In this case, the defence was cast with the duty to prove the causes of deaths. Dwl w2 endeavored to prove so. It was the evidence of Dwl, a veterinary officer who said, according to the post-mortem done before burying 15 cattle that died in the hands of the first defendant, they died due to various deceases ranging from east coast fever, trypanosomiasis, heartwater, and anaplasmosis. Dwl however, did not tender the said report. He only referred to it. It remains his word that they died of such decease. 5 a range of diseases, he ought to show which type Having mentioned of Still,- as an expert, Dwl of deceased claimed which number of cattle. not treatable and what did not tell this court if the alleged d causes them. from having been kept in They may perhaps be caused by stress less fed, or lacked necessary conditions that were not normal, or were that exbibit DI is a payment and important nutrients. The court notes voucher. It is alleged to have been in respect of the purchase of drugs . In his evidence, he said, he was for the treatment of cattle in qu 2020. Exhibit DI was issued on directed to attend them on 28^*^ October cattle. In terms of 6^*^ of December 2019, referring to the same the arrested on 8^^ October 2019 and handled to their exhibit Pl, cattle were 0 at 15.49 hours. Dw2 who arrested respective own on 21^ them, said, they were kept and died of normal deceases as per evidence from Dwl. in fhic a'^nprt the date variations, and pondered the evidence in this as Having of the report on post-mortem other materials especially on the absence examination, I am not convinced t e defence has proved exactly what were the causes of d 6 I therefore cannot certainly hold that the cattle died due to the deceases Ulowt I ICJ V I ng determined the issues, I enter judgment for the plaintiff in the following reliefs; i. Plaintiff to be paid TZS 7,500,000.00, which is compensation for 15 cattle, one at the price of TZS 500,000.00 on average. ii. The interest on the decretal amount at 7% which is a court rate from the date of judgment to the final payment iii. Costs to follow the event. 25^ ACK. RWIZILE JUDGE 31.10.2023 7