Land Case 7 of 2022 Judgment Mrisha J

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND CASE NO. 07 OF 2022 COLONELY SI KAZWE.............................................................. 1st PLAINTIFF ORGANIC ARENA LIMITED..................................................... 2nd PLAINTIFF VERSUS CHINA GEO ENGINEERING CORPORATION................................DEFENDANT JUDGMENT 11th June & 12h August, 2024 MRISHA, J. The plaintiffs herein claim from the defendant a total sum of Tshs. 100,000,000/=, as general damages, Tshs.50,000,000/= and Tshs. 1,005,031,884.1/= being specific damages for the first and second plaintiffs respectively. Their claims have come as a result of what they have alleged to be the defendant's act of trespassing into the first plaintiff's land (the disputed land) which is situated at Kazungu Village within Sumbawnga District in Rukwa Region and extracting some minerals therein thereby causing huge destruction of that land and disturbance to the bees which have i been kept therein by the second plaintiff with the consent of the first plaintiff, as a bees’ project. The facts which led to plaintiffs’ decision of instituting the instant suit against the defendant, can be summarised as hereunder: It is alleged that in May, 2022 the defendant trespassed into the first plaintiff’s land and started extracting minerals therefrom whilst taking those minerals to the place known to herself, thus making nuisance in that area, disturbing bees, destructing the second plaintiff’s project and development therein. That despite the plaintiffs’ family members to order her agents to stop doing so, they evasively refused and proceeded to trespass into the plaintiff’s land and cause destruction of the disputed land. That upon seeing such defendant’s resistance, the plaintiffs sought some legal advice from the lawyer who drafted and attempted to serve the defendant with a Demand Letter and Intention to sue in order to see if the defendant could stop and agree to settle the said dispute with the plaintiffs in an amicable way, but she did not honour the demands contained in that letter. That the defendant’s act of destroying the nature of the disputed land and causing nuisance therein, has led the plaintiffs to suffer a serious 2 irreparable loss both financially and materially for their failure to use the said land. Thus, because of the defendant’s trespass into the disputed land the first plaintiff claims from the defendant Tshs. 50,000,000/= and the second plaintiff claims Tshs. 1,055,031,884.1/= being the actual profit he could have generated from the bee keeping project as he gets four (4) products and sell them to different users throughout the period which the defendant’s has had been trespassing into the disputed land, as shown hereunder: a) Honey per year for the local price of Tshs. 227,100,000/= b) Bee wax per year for the local price of Tshs. 11,355,000/= c) Bee venom per year for the local price of Tshs. 787,280,000/= d) Propolis per year for the local price of Tshs. 29,296,884.1/= All of which makes a total claim of Tshs. 1,055,031,884.1/=, as claimed at paragraph 10 of the plaintiffs’ joint plaint. That, since the cause of action arose within Sumbawanga District in Rukwa Region and a total amount claimed by the first plaintiff is Tshs. 50,000,000/= and the one by the second plaintiff, is Tshs. 1,055,031,884.1/=, the suit is within the jurisdiction of this honourable court. 3 It is due to the above facts, that the plaintiffs are praying for the judgment and decree against the defendant as follows: - a) This honourable court be pleased to make a declaratory order that the defendant trespassed to the plaintiff’s’ land. b) An eviction order for the defendant from the disputed land. c) An order for the payment of general damages for loss sufferings and disturbance to the tune of Tshs. 100,000,000/= (One hundred million shillings only). d) Special damages for loss of income due to defendant’s use of the disputed land and disturbing the second plaintiff’s project to the tune of Tshs. 1,005,031,884/= (One billion, five million, thirty-one thousand, eight hundred and eighty-four shillings only). e) Permanent injunction against the defendant and her agents from using the disputed land. f) A declaratory order that the defendant to clear all damages which he caused to the disputed land by covering all holes. g) Interest on the decretal sum at the court’s rate from the date of judgment until final payment. h) Costs of this suit to be granted. 4 i) Any other relief this honourable court may deem fit and just to grant. On the contrary, the defendant through her written statement of defence, had strongly disputed the said plaintiffs’ allegations and put them on strict proof, save for the contents of paragraphs 1, 2 and 3 which she did not dispute. In addition to the above, the defendant vehemently claimed from paragraph 10-20 of his pleading, that being a contractor employed by TANROADS Sumbawanga to construct a road for upgrading the Ntendo- Muze-Kilyamatundu road, she followed all the procedures of extracting stones for using them in that construction; hence, she is not responsible for any clams because she was employed by TANROADS who is the one supposed to be sued by the plaintiffs. In the end, the defendant pressed for costs as well. Due to the above contentious matters, the following issues were raised and agreed by both parties prior to the hearing of the present case: - i. Whether the first plaintiff is the owner of the disputed land. 5 ii. Whether the second plaintiff is the owner of the bee keeping project in the disputed land. iii. Whether the defendant trespassed into the disputed land, extracted minerals and disrupted the bees. iv. Whether the plaintiffs suffered any loss. v. What reliefs are the parties entitled to. At the hearing of the case at hand, the plaintiffs were represented by Ms. Tunu Mahundi, learned advocate and the defendant was represented by Mr. Baraka Mbwilo, also learned advocate, and the trial was conducted through witness statements pursuant to Order XVIII, Rule 2 of the Civil Procedure Code (Amendment of the 1st Schedule) Rules, 2021. The hearing of this case actually began on 02.05.2024 after both parties had filed their respective witnesses’ statements. The plaintiffs called five witnesses and tendered three exhibits to prove their case against the defendant who on her part, also called five witnesses with a view to dispute the plaintiffs’ claims, but had no exhibits. Also, all witnesses from each side identified and adopted their respective witness’s statements in order to form part of their evidence before the court. In his statement, PW1 Colonely Sikazwe stated that he is the 6 owner of the 800 hectors disputed land which he purchased from one Kunana Nchola Nangi in 2012 and had a sale agreement to prove that ownership. The same was admitted by the court as Exhibit P1 without any objection from the defendant. PW1 also stated that since then up to 2022, he had been using the disputed land with his son, the second plaintiff who runs a bee keeping project in that land peacefully, but on May 2022 the defendant through her Chinese men, trespassed into his land and started using the land by cavity, cutting trees and extracting stones therein. That his efforts to order the defendant’s agents to stop what they were doing and get out of his land proved failure; hence, together with the second plaintiff they decided to consult Ms. Tunu Mahundi who drafted on their behalf, a Demand Letter and Intention to sue the defendant, but the latter refused to accept and/or sign it. The said letter was tendered by PW1 and admitted by the court as Exhibit P2 without any objection from the defendant. Not only that, but also PW1 stated that the land destroyed by the defendant is almost 20 acres which is within 800 hectors and her conduct caused damage to the environment such as noise, air pollution, destruction of the nature of the disputed land by leaving big holes on 7 that land and interruption on the project which had been run by the second plaintiff. He further stated that for what had been done by the defendant in the disputed land, the said defendant caused damage to him to the tune of Tshs. 50,000,000/= (fifty million only) as specific damages. Finally, PW1 prayed that the defendant be ordered to pay him the above claimed damages together with costs and stop doing what she had been doing in the disputed land. Thereafter, came PW2 Innocent Colonely Sikazwe who stated that he and PW1, his father had been using the disputed land from 2012 up to 2022 when the defendant trespassed into that land and began to extract stones for using them in road construction. Like PW1, the said witness stated that following the defendant’s invasion into the disputed land, they tried to stop her agents from continuing with the extraction work, but in vain, then PW2 decided to call PW3, his young brother who is the principal officer of Organic Arena Limited which was running a beekeeping project in the disputed land, and after few days his young brother consulted Ms. Tunu Mahundi who then drafted a Demand letter requiring the defendant to stop what she was 8 doing in the disputed land, but the latter continued to do her acts in the disputed land. That the defendant’s acts in the disputed land caused damage to the beekeeping project which do not need any nuisance and disturbances and destroyed the nature of the disputed in the area of 20 acres. Having narrated the above, PW2 said the defendant’s acts have to be stopped because the bees do run away from their beehives due to dusts and nuisance. The third from the plaintiffs was Gustave Colonely Sikazwe who stood as PW3. Through his witness statement, he stated that he is the principal officer of Organic Arena, a company incorporated according to the Companies Act, R.E. 212 of the laws of Tanzania with Certificate of Incorporation No. 141164171 and which has been running a beekeeping project in the disputed land. That the defendant trespassed into the disputed land and started extracting stones an act which caused damage to the nature of the said land and nuisance to the bees which do not need any disturbance. That he tried to consult a lawyer so that they could settle that dispute with the defendant amicably, but the latter refused to be served with such demand letter. The said demand letter was tendered by PW3 and 9 admitted by the court as Exhibit P2 without any objection from the defendant. PW3 also stated that the defendant’s act of trespassing into the plaintiff’s land and doing their activities therein caused some trouble to the project as there is no longer production of four bee products which comes from bees namely honey, beeswax, bee venom and propolis. That the loss of all four products resulted to the loss of revenue from the project which could be gained in a year and which amounts to Tshs. 2,565,367,104.70/= which total comes from the following items: - a) Loss of Honey per year for the local price is 18570kg @ Tshs 15,000/= equals to Tshs. 278,550,000.00/= b) Loss of beewax per year for local price 619kg @15,000 equal to Tshs. 9,285,000.00/= c) Loss of Bee venom per year for local price 32,240gm @69900 equals to Tshs. 2,253,576,000.00/= d) Loss of Propolis per year for local price 309.5gm @77402.6 equals to Tshs. 23,956,104.70/= He added that the computation of that amount was according to the number of bee colonies which is 620. He also claimed that the land destructed is almost 20 acres and the defendant used excavator 10 (bulldozer) to drill the land which act is proved by photos taken through smart phones. It was thus, his prayer that the court be pleased to declare the defendant as a trespasser who caused destruction to the beekeeping project and irreparable loss on the part of the plaintiffs which amounts to Tshs. 2,565,367,104.70/= as specific damages and Tshs. 255,758,814.30/= as general damages in reference to the agreement of sale entered on 02.01.2022. The next was PW4, Livinus Sokoni Sikazwe who briefly stated that he is a child of the first plaintiff who purchased the disputed land in 2012 from one Kunana Nchola Nangi which has a total of 800 hectors. Therefrom his father began to use the disputed land up to 2022 when the defendant trespassed into that land and began to extract stones by using excavators, graders, bulldozers and the truck to collect sand and stones to the unknown place. That his brother tried to stop the defendant’s agents from continuing with their activities in the disputed land, but they refused, that is when he decided to consult advocate Tunu Mahundi who also went to the locus in quo and told the defendant’s agents to stop doing what they were doing, but they replied to her that they will come to an agreement. 11 That the said lawyer drafted a demand letter to the defendant to compel them to stop their activities immediately or they would be sued, but that did not work as the defendant’s agents did not stop doing their activities in the disputed land and they refused to receive that letter. Another witness was PW5, Felician Makaranga who through his witness statement, stated that he is the beekeeper working with the second plaintiff’s beekeeping project. He has six years professional experience. He started working for the second plaintiff’s company in 2021. That he joined the said company’s project as a professional in order to make it better and more productive. PW5 also stated that according to the good beekeeping practice, a beekeeper should consider various factors when selecting an area for apiary in order to keep bee colony without absconding. Among such factors include Bee Folder plants, Water source, a free Air and Noise pollution area. He went on stating that the selected project area is Kazungu Village where the defendant trespassed and started to conduct her activities which caused destruction in the disputed land the acts which caused disturbance in the project area which has a nearby water source depended by bee colonies as they used to go there, pick some water 12 and used it to dilute honey, but they run away after finding human activities taking place in that area. PW5 further stated that the area affected due to defendant’s activities which involved the use of excavator with registration no. 563, Mitsubishi Fuso (dumper) with registration no. T. 378 and Mitsubishi Fuso with registration no. T. 383 BEA to destruct it, is almost 20 acres. That as an assistant beekeeping officer in that project at Kizungu- Kilyango within Sumbawanga District, he observed that the loss of production incurred by the second plaintiff due to defendant’s activities in the disputed area, can be described as hereunder: That, on July, 2022 to June, 2023 the production of bee products seems to be in trouble at Kilyango apiary because bees depend on three, shrubs, grass, river and conserved environments in order to produce their products. It was his further statement that through the environmental destruction caused by the defendant which involved cutting trees, shrubs, grass, disturbing river, land excavation and stone perforation, air and noise pollution caused by defendant’s cars when carrying stone, the defendant’s company China Geo Engineering Corporation influenced the failure of production of bee products because through the factors 13 mentioned above, the bees cannot concentrate in collecting their raw materials for making their products due to undergoing bee colonies stress which makes them to abscond from the conserved area. As a result, PW5 said the above effects made him fail to harvest the expected bee products which could be produced from July, 2022 to June, 2023. He however, urged the court to consider his evidence as an expert on beekeeping field and went on to provide the expected productions matrix of bees’ products for the period from 1st July, 2022 to 30th June, 2023 at Kilyango Bee Apiary as shown below: 1. Honey: number of colonies=620, Quantity to be produced for each colony per year=30 Kgs, Expected Quantity to be produced for the period= 18,600 Kgs. 2. Beeswax: number of bee colonies=620, Quantity to be produced per year= 1Kg, Expected Quantity to be produced for the period= 620 Kgs. 3. Bee Venom: number of bee colonies=620, Quantity to be produced per year=52 grams, Expected Quantity to be produced for the period= 32,240 grams. 14 4. Propolis: number of bee colonies=620, Quantity to be produced per year= 0.5 kgs, Expected Quantity to be produced for the period= 310 kilograms. From the defendant, the first witness was Yueshan Zhou, DW1. In his statement, he stated intel alia that he is a Principal Officer of the defendant’s company which deals with construction. The defendant entered into a road construction contract with TANROADS for uploading of Ntendo-Muze-Kilyamatundu (179 kilometres). After signing of that contract and being handed with a site, DW1 started to look for the area where he could get stones for using them in road construction and that is when he approached the leaders of Kazungu Village who connected him with PW2 who used to take care of the disputed land, through a mobile phone. That after the Village Executive Officer and the Chairman of that village had told PW2 that DW1 and his company proposed to use his area for taking samples of stones for road construction after testing them, then they would enter into a contract of extracting stones in that area, PW2 gave them a verbal permission to do so, but directed them to give him the outcome of that test. 15 That upon been granted with such permission, DW1 and his workers entered into the disputed land and began to search for stones by using excavators. Thereafter, on 08.06.2022 DW1 met with PW2 and went to the disputed land where they started to discuss; in that discussion PW2 wanted to be paid a part payment before the test results, however DW1 continued to discuss with him. That in the other day they met with the plaintiffs’ lawyer who issued DW1 with a drafted contract requiring them to pay first compensation to the plaintiffs for using their land and the second payment would be agree after release of the test results. On his part, DW1 tried to explain to the plaintiffs’ lawyer about the procedure of land acquisition to the project like that, but the plaintiffs and their lawyer were not read to understand him. In the end, no agreement was reached between them and DW1 decided to look for another area. That apart, DW1 stated that the disputed land is not 800 hectors as claimed by the plaintiffs and that what was done by the defendant in that area was to remove the topsoil of the land for exposing the rocks and took the samples of stones by using chain excavator. He also stated that the excavated stone samples were in one lorry and those were the ones they took to the TANROADS laboratory leaving 16 other materials at the site. He further stated that at the excavated area there were no bees because the beehives were scattered far away from that area; hence, the bees in those beehives were not affected. Not only that, but also through his witness statement, DW1 stated that the size of the land which its topsoil was removed/ excavated, is 2608.712 square meters which is equivalent to 0.6446 acres and 0.26087 hectors. He concluded his evidence by stating that the claims by the plaintiffs are not true, but unjustifiable. He thus, prayed that the suit be dismissed with costs. The second witness was DW2, Samweli Mgeni Buha, a TANROADS Regional In charge of Materials Laboratory for Rukwa Region who through his witness statement, stated that he is a holder of Bachelor degree in Civil Engineering and Transportation from the University of Dar Es Salaam where he graduated in 2004. That the defendant is a company which contracted with TANROADS for constructing the Ntendo-Muze-Kiliamatundu (phase 1 Ntendo-Kizungu) by upgrading to bitumen standards. The project is for the Government of the United Republic of Tanzania which is supervised by TANROADS for the government, who entered into a contract with the defendant. 17 That the procedure of acquiring land for quarry is that the contractor has to identify the areas with materials suitable for construction and after doing so, the contractor shall arrange with the owner for taking samples and take samples to the employer (TANROADS); when samples test positive, the contractor shall request to the employer for land acquisition. That after receiving such request, the employer will engage the government valuer for conducting a valuation of the identified area and submit the valuation report to the employer who will notify the contractor of the valuation report and how and when to pay compensation. That the employer is the one who acquires the land and is the one who pays the compensation for land acquisition; also, even if the contractor is authorised to pay, the employer is required to refund the money to the contractor. Having described the above procedure, DW2 continued to state that in June, 2022 the contractor (defendant) notified the employer (TANROADS) that she had identified the area which she thought had materials for road construction, but the owner of the land was demanding to be paid before the results of the samples were out. 18 That after receiving such information, DW2 decided to go to the site at Kizungu village and meet Mr. Innocent Colonely Sikazwe (PW2) who told him the disputed land belongs to his family and he is the one taking care of it. PW2 requested to be paid, but he explained to him the procedure of acquiring land, as described above and he understood, however PW2 told him to consult with his family first. Apart from that, DW2 stated that at the disputed land he found the contractor had already cleared the surface land/topsoil in order to expose the rock and the method used to remove the said topsoil was the chain excavator not bursting. He also confirmed to have seen the contractor’s excavator parking in that area. Also, DW2 stated that the excavated materials which were taken for samples, were loaded in one lorry and those are the ones he received in the laboratory. He further stated that at the excavated area there were no beehives as the beehives were scattered far away from that area; hence, no beehives were affected. Moreover, DW2 stated that after being stopped to extract stones in the disputed land and seeing that the land owner was insisting to be paid some money before the outcomes of sample test results and lack of consensus on that matter, the contractor decided to leave the site and 19 search for another area which they still take materials up to the moment he was testifying before the court. He finally, stated that the size of the land in which its topsoil was removed/ excavated, is 2608.712 square meters which is 0.26087 hectors. The third from the defendant’s side was DW3, John Raphael Kusongwa. In his witness statement, he stated that he is a Village Chairman of Kizungu Village where the disputed land is and he knows PW2 very well as the owner of the disputed land. In 27.05.2022 he was approached by the leaders of a nearby village called Luwa who were accompanied with the defendant’s officers including DW1. The delegation told him that the defendant’s officers were looking for road construction stones and had spotted them in the area belonging to PW2. That thereafter, DW3 communicated with PW2 through a mobile phone and informed him about the intention of the defendant’s officers, then PW2 granted them permission to search for stones in his area, but wanted DW3 to inform him about the end results. That after the search, the defendant’s officers told DW3 that they did not find stones suitable for their job. However, in few days later, the same officers approached and informed him that they had found another 20 area they thought could contain stones suitable for their work, so they wanted to collect samples therein and test them before entering into agreement with the owner of that area. That upon being so informed and having noted that the spotted area also belongs to PW2, DW3 relayed the message to PW2, but the latter told him to wait for him. Soon thereafter, PW2 came back from safari and met with DW3 and the defendant’s officers who told PW2 about their intention to take samples from his area to the laboratory so that after getting positive results they would sit down and agree on how they could acquire his land. However, DW3 said in his response PW2 told the defendant’s officers that the land belongs to his family, not him alone; hence, he needed to consult the whole family before any agreement could be made with the defendant. Also, DW3 stated that on the unknown date of June, 2022 the defendant’s officers and PW2 met with him, then they proceeded to the site, but before they began to make any discussion, PW2 told them to wait for his lawyer to come. Soon thereafter, PW2’s lawyers came and after introduction, she issued the defendant’s officers with a drafted contract which required the defendant to pay compensation for the 21 excavated area and make other payment when the results of the samples are were out. That after going through the contents of that contract, the defendant’s officers told PW2 they could not pay anything until the said results were out and after agreeing on the amount to be paid for land acquisition. On his part, DW3 and his fellow village leaders tried to advise PW2 to permit the defendant’s officers to wait for the results of the samples, then sit down and agree on what to be paid to him, but his lawyer refused and insisted that the defendant should pay the compensation first. As a result, there was disagreement. Besides, the said witness stated that the excavated area is about 0.5 acres including the water reserve area and that the said area did not have beehives because the beehives were very few on the other side of the farm and very far from the area in which the samples were taken. The evidence of that witness was followed by the one adduced by DW4, Godfrey Gerald Mwananzumi through a witness statement. The said witness stated that he is a Village Executive Officer of Luwa Village, Ntendo Ward in Sumbawanga District and was employed for that position in 2013. 22 He knows the defendant as the company which has been constructing a road from Ntendo to Kizungu in bitumen standards. On 27.05.2022 he was approached at his office by the defendant’s officers including DW1 who informed him that they had seen one area which they thought had stones suitable for road construction. Hence, they requested him to go with them to that area so that they could see it and identify the owner of that area for arrangements. That upon being so informed, DW4 and his fellow leaders consented and accompanied the defendant’s officers to the area which is near the boundary between Kizungu and Luwa Village and after arriving there, the defendant’s officers showed them the area, but after seeing it, DW4 and his colleagues noted that the same belongs to the people of Kazungu Village; so, they advised them to go and consult the officers of that village. Thereafter, DW4 escorted the defendant’s officers to Kazungu Village, connected them with the leaders of that village and expressed their concern to those leaders. From there, they all moved to the spotted area, then DW4 left the defendant’s officers and Kazungu Village leaders making their arrangement, then they went back to their offices. 23 The defendant’s other witness was DW5, Juma Patrick Mseya. In his witness statement he stated that he is a civil servant who is working as a District Beekeeper Officer in Sumbawanga District. That, professionally, he is a holder of a Bachelor degree of Science in Applied Zoology from the University of Dar es Salaam and has eight (8) years’ work experience in beekeeping. That apiary is an area with beehives or a collection of beehives and that any person who alleges to be a beekeeper or apiary owner has to possess a certificate and licence regulated by the Bees Act of 2002 and the Beekeeping (General) Regulations of 2005. That the bees’ products include honey, bee wax, bee venom, propolis, manuka honey, bee pollen, royal jelly etcetera. DW5 further stated that in order to know the volume or quantity of bee products, the beekeeper or owner of the apiary must state the number of beehives in the farm, the type of beehives and the size of the beehives because each size of the beehive has its own quantity of bee product. He also stated that in order to harvest honey weighing 15-20 kgs per season, the beekeeper must have commercial beehives measuring 90 centimetres in length, 45-50 width and 25-30 height. Also, the size of 24 the beehives assists to know the quantity of the bees’ products harvested or to be harvested. He added that the local price of Honey in 2022-2023 was 8000-10000 per kilogram. He further stated that in order to prove honey earnings, the beekeeper must state the bee calendar and the proof must show the quantity of products harvested for the past three years and must include sale receipts as well as financial statements. Not only that, but also DW5 stated that in order to know the quantity of bee venom harvested, the beekeeper must state the tools used for harvesting that kind of product and must state the quantity of bee venom harvested for the last three years. Moreover, DW5 stated that in order to disturb beehives, the distance from the beehives to the area of human activities like schools, roads and hospital service must be 100 meters. Hence, a person who claims that the human activities disturbed his bees, must state clearly the distance from the beehives to the area where human activities are done which in other words, mean if those activities are done beyond a distance of 100 meters, the beehives cannot be disturbed. After hearing the above evidence from both parties, the court visited the locus in quo, observed the disputed land using a tape measure and 25 afforded both parties an opportunity to describe the area. In the end, both parties agreed that actually the area was damaged due to excavation of stones by the defendant and the total size of the area affected, was 2.3 acres. It was also agreed that on one side of the area there was a permanent river and on the other, there were white colour beehives hanging on some trees. Also, it was agreed that in the damaged area there were heaps of sand and a collection of stones which appeared to have been excavated from the damaged area. Also, during hearing and at the locus in quo, both parties were allowed ask questions. Having shown what transpired during trial, it is now my task to answer the issues that were raised and agreed by both parties prior to hearing of this suit, but before doing so, I wish to reaffirm the well-known principle of law which has been applied by courts of law in determining cases of civil nature like the one now before me, that whoever would like the court to give judgment in his/her favour must prove his claim against the other party (defendant) on the balance of probabilities in terms of section 110 (1) (2) of the Evidence Act, Cap 6 R.E. 2019. (See: Paulina Samson Ndawanya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017(CAT at Mwanza) and Mayram Charles Mbaga 26 vs Witson Charles Mbaga, Civil Appeal No. 4 of 2021(HCT Temeke Sub-Registry at Temeke, Dar es Salaam, all unreported). In the former case, the Court of Appeal elaborated the above principle of law in the following words: - “...It is equally elementary that since the dispute was in civil case, the standard of proof was on a balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved” [Emphasis is mine] Starting with the first issue which is whether the first plaintiff is the owner of the disputed land, the evidence of PW1 reveals clearly that he is the owner of the disputed land and his evidence is supported by documentary evidence which is Exhibit P2 (a sale agreement) which indicates that the disputed land belongs to PW1 and his family members. Also, looking at the evidence of PW2 to PW5, it appears that they have all described PW1 as the owner of the disputed land together with his family. As if that is not enough, the evidence of DW1, DW2 and DW3 reveals that even the defendant concedes that the disputed land belongs 27 to the first plaintiff. Hence, due to the foregoing reasons, the first issue is answered in the affirmative. In the second issue, the court is called upon to determine whether the second plaintiff is the owner of the bee keeping project in the disputed land. This issue cannot detain me much because it undisputed between the plaintiffs and the defendant that within the disputed land there is a beekeeping project and the same is owned by the second plaintiff. The only contentious issue between them is on whether the said project was affected by the defendant’s acts which will not be determined at this moment, but in due course. That the second plaintiff is the owner of the beehive project in the disputed land, that can be garnered from the evidence of PW3 which shows he has been the owner of the beekeeping project in the disputed since 1st March, 2020. His evidence is corroborated by the evidence of PW1 and PW2. Also, during cross examination, PW3 stated that he filed this case on behalf of his company and prayed to tender a Special Resolution of Board of Directors of Organic Arena Limited, as an exhibit and the same was freely admitted by the court as Exhibit P3. That also proves the fact that PW3 who is the second plaintiff in this case, owns a beekeeping project in the disputed land. 28 Moreover, looking at the evidence adduced by DW1, DW2 and DW3, it appears that they have all admitted in their witness statements that upon approaching the disputed land where they had gone to search for road construction stones, they saw beehives, but have maintained that the same were far away from the disputed land. This is shown at paragraph 26 of DWl’s witness statement, 13 of DW2’s statement and 24 of DW3’s witness statement. Also, when cross examined, all those witnesses appeared to have described PW2 as the owner of the disputed land which is not true because that is not the person named in Exhibit P1 to be the owner thereof. This means since the said defendant’s witnesses have conceded that there were beehives in the disputed land and the defendant’s counsel did not dispute the fact that PW3 is the owner of the disputed land, then I hold the view that the second plaintiff is the owner of the beekeeping project in the disputed land. This makes the second issue to be answered positively as well. Another contentious issue between the parties herein is whether the defendant trespassed into the disputed land, extracted minerals and disrupted the bees. The word trespass has not been defined under the 29 Civil Procedure Code, but it is not strange in legal arena as it has been defined in different textbooks. For example, at page 1677 of the Cambridge Advanced Learner’s Dictionary, 4th Edition, Cambridge University Press (2015), the word trespass means “to go onto someone’s land or enter their building without permission”, and at page 1674 of the Blacks’ Law Dictionary, 4th Edition, ST. PAUL, MINN. WEST PUBLISHING CO. (1968) such word has been defined to mean, "Doing of unlawful act or lawful act in unlawful manner to injury of another's person or property. ” Back to the case at hand, it is the complaint of the first and second plaintiffs at paragraph 7 of their joint plaint that in May, 2022 the defendant trespassed into their land (the disputed land) without their permission and started extracting minerals from that land whilst making nuisance and took them to the unknown place. That in so doing, the defendant not only destroyed the nature of the disputed land, but also disturbed the bees kept therein and destructed the beekeeping project and all development therein. It is obvious from those allegations that by entering into the disputed land and starting to extract some minerals therein to wit; stones for construction of road without the plaintiffs’ permission, the one who did 30 so, entered into the first plaintiff’s land unlawfully; hence, trespassed into the plaintiffs’ land because that act falls within the meaning of the word trespass, as defined in the above referred textbooks. The foregoing plaintiffs’ allegations were backed up by the evidence of PW2 which reveals from paragraphs 5-7 of his witness statement that upon being tipped by his farm worker in May, 2022 about the defendant’s acts of trespassing into his family land and extracting stones, he rushed to the disputed land where he found the defendant’s agents extracting stones therein with an excavator and ordered them to stop doing so and leave the area, but the said agents ignored his order and kept on doing their jobs which caused destruction to the plaintiffs’ land and the beekeeping project. Such evidence is corroborated by the evidence of PW1, PW3, PW4 and PW5 through their witness’s statements, as can be seen from the facts which I have tried to summarise above. I take note that through her written statement of defence particularly at paragraph 4, the defendant has vehemently disputed the contents of paragraph 7 of the plaintiffs’ plaint which appears to have implicated her for her act of trespassing into the first plaintiff’s land. 31 Nonetheless, having gone through the witness statements of DW1, DW2 and DW3, I have noticed that the evidence of those defendant’s witnesses depicts that actually the defendant entered into the first plaintiff’s land (the disputed land) in May, 2022 and extracted stones therein by using an excavator and packed them in a lorry, but they have claimed that before doing so they sought and got a verbal permission from PW2 who by then was somewhere at Namanyere in Nkasi District in Rukwa Region. However, it is unfortunate that in his evidence PW2 did not bear them out in their claims as he pointed fingers towards those witnesses blaming them to have despised his order requiring them to stop doing extraction works in the first plaintiff’s land. In my view had the defendant’s evidence that she got permission from PW2 to enter into the first plaintiff’s land and extract stones in order to test them in the laboratory of TANROADS, then PW2 would have corroborated her witnesses’ evidence in his witness statement. Also, during cross examination, PW2 responded by saying that, “I did not meet with Tanroads Officer and discuss about the land; I met with Chinese Company when they trespassed to our area...” The foregoing excerpt clearly reveals that the defendant did not get any permission 32 from the first plaintiff as her witnesses would like the court to believe. Thus, owing to the above reasons, I am inclined to find merits in the plaintiffs’ complaint against the defendant regarding her act of trespassing into the disputed land and answer the third issue in the affirmative. After resolving the above issue, my next task now is to determine whether the first and second plaintiffs suffered any loss. As indicated above through their pleadings as well as the evidence adduced by their witnesses, it is obvious that there are two categories of losses which the two have alleged to have incurred due to the defendant’s act of trespassing into the first plaintiff’s land and extracting minerals therein by using a device which is an excavator. First, it is claimed that by trespassing and doing those extraction activities into the disputed land, the defendant caused damage to the first plaintiff’s land by destroying the nature of the dispute land which had no holes before those works were done, and secondly, it is the second plaintiff’s claim that by using an excavator to extract stones in the disputed land and loading stones on the her lorry, the defendant not only destructed the his beekeeping project, but also disturbed bees 33 through nuisance and cause them to run away instead of remaining in the beehives and produce honey and other bee products. According to the evidence of PW3, in the periods from 1st July, 2022 to 30th June, 2023, the second defendant incurred loss amounting to Tanzania Shillings 2,565,367,104.70/=, as special damages and Tanzania Shillings 255,758,814.30/=, as general damages. He has also alleged that during such period the expected production of honey in the second plaintiff’s project was 18,600/= kilograms, but the actual product harvested was 30 kilograms; thus, making the incurred loss to be 18570 kilograms. Also, PW3 claimed that during such period the expected production of Beeswax was 620 kilograms, but the actual harvested beeswax was 1 kilogram, thus making a loss of 619 kilograms. For the Bee venom, the expected production was 32,240 grams, but no such product was harvested during such period, thus making the incurred loss to be 32,240 grams. Regarding the propolis it was the testimony of PW3 that during such period the expected production of that product was 310 kilograms, but the actual harvested product was 0.5 kilograms, thus making the incurred loss to be 209.5 kilograms. 34 On the adversary side, the defendant has disputed such claims by the second plaintiff arguing that the alleged beehives were far away from the disputed land hence, the bees kept in those beehives were not affected by her act of entering into the disputed land and extracting stones for road construction. That can bee seen through the evidence of DW1, DW2 and DW3. However, it appears that in their witness statements, those witnesses have conceded to the fact that the defendant entered into the disputed land and extracted stones therein which they collected as samples to be tested in the laboratory of TANROADS, Rukwa. The above concession by those witnesses entails that the defendant admitted to have caused damage into the first plaintiff’s land, and since her stones’ extraction work was done by using an excavator, then it is obvious that such device caused nuisance, dust eruption in the disputed land and disturbed the bees which were just near the disputed land as observed by the court after visiting the locus in quo. This means therefore, that even the second plaintiff incurred some loss due to defendant’s activities into the disputed land. Again, in his witness statement, DW5 who appears to be an expert in beekeeping project, 35 stated intel alia, that in order to be affected, the beehives must be within 100 meters from where human activities are done. However, as I have alluded earlier, upon visiting the locus in quo, the court observed that some beehives were seen just near the damaged area which is obviously within 100 meters. Not only that, but also during cross examination, DW1 was recorded to have said that, "I know the area in dispute. I saw the area and what is contained in the area. I saw beehives in the area"; DW2 said that, "...in the place where extraction was conducted there was no beehives, but on the other area there were beehives because they were seen by naked eyes”, and DW3 said that, "...in the disputed area there are beehives in some of the places”. It is quite clear from the above excepts, that the evidence adduced by the defendant’s witnesses as described above, corroborates what was stated by the second plaintiff regarding the presence of beehives near the disputed area. That is another indication of proof that the second plaintiff also incurred some loss due to defendant’s act of trespassing into the disputed land. Hence, it is not true that no loss was incurred by the second plaintiff. It is due to the foregoing reasons that I answer the fourth issue in the affirmative, as well. 36 The above takes me to the fifth and last issue which is about what reliefs are the parties entitled to. Through their joint plaint, the first and second plaintiffs have averred that they are entitled to be paid both general and specific damages. This can be observed at paragraph 10 of the said plaint whereby on his part, the first plaintiff has claimed for a total of 50,000,000/= (fifty million only) due to defendant’s act of destroying the nature of the disputed land and cause nuisance therein, and the second plaintiff has claimed for a total of Tshs. 1,055,031,884.1/=, as special damages being the actual profit he could have generated from the beekeeping project which enables him to get four bee product, as described at paragraph 11 of his plaint. Again, despite their omission to claim for general damages in any of their joint plaint’s paragraphs, the first and second plaintiffs have submitted a prayer through that plaint by urging the court to make an order for the payment of general damages for the loss sufferings and disturbances to the tune of Tshs. 100,000,000/= (One hundred million only). That is stated at paragraph (c) of page 3 of their joint plaint which contain several prayers. On the adversary party, the defendant has through paragraph 8 of her written statement of defence, strongly disputed the said plaintiffs’ claims 37 regarding special damages arguing that those claims are baseless because the two have failed to tender or produce valuation reports and other documents to back up and/ or substantiate their claims. She has also contended at paragraph 9 of her respective written statement, that she never destroyed or disturbed bees and the plaintiffs have failed to substantiate and particularized how they reached to the figure of money claimed as general damages. Having indicated what reliefs are sought by the parties herein, I wish to emphasize that there are principles to be complied by the courts when determining prayers in relation to special and general damages. For special damages, there is a plethora of authorities which directs the court to ensure that such kind of damages are pleaded and proved and that in the event the same are not proved by evidence, the court cannot award them. For instance, in the case of Lalago Cotton Ginnery and Oil Mills Company Limited vs Consolidated Holding Corporation, Civil Appeal No. 130 of 2005, CAT, it was stated that: “It is a trite principle of law that where special damages are claimed, they must be proved in evidence (See: (CAT) Cooper Motors Corporation (T) Limited vs Arusha International Conference 38 Centre [1991] TLR 165. Since there was no evidence tendered to prove special damages, this reliefcould not be awarded.” Also, in the case of Judge-In-Charge, High Court of Arusha and the Attorney General v. NIN Munuo Ng’uni [2004] T.L.R. 58, it was held that: "Special damages have to be specifically pleaded... We have held in Cooper Motor Corporation Ltd v. Moshi/Arusha Occupational Health-Services [1990] T.L.R. 96 at page 100 that it suffices in the case of general damages merely to aver that such damages have been suffered. We reiterated that in Dr Ally Shabhay v. Tanga Bohora Jamat, CAT-Civil Appeal Number 40 of 1997 (unreported). However, this Court said in Cooper Motor Corporation that: "It is abundantly clear from the above quoted passage that only general damages can be asked for a mere statement or prayer of a claim” What we may learn from the above authorities is that for special damages to be awarded, the party praying them must plead them specifically and prove them by evidence. It is opposed to the general damages which can be asked by a mere statement or prayer of a claim. 39 Reverting back to the present suit, it appears that the first and second plaintiffs have submitted a prayer that they are, intel alia, entitled to special damages to wit: Tshs. 50,000,000/= (fifty million only) for the first plaintiff and Tshs. 1,055,031,884.1/=, for the second. Their only reason which has prompted them to come up with those prayers is that the defendant’s act of trespassing into the disputed land caused them irreparable loss for she destroyed the nature of that land and disturbed bees through nuisance. However, one of them tendered any evidence to show that the defendant’s acts caused damages amounting to the figures they have claimed at paragraph 10 of their plaintiff which is why their counterpart has strongly disputed such claims as being baseless for want of proof. Apart from that, I have gone through the evidence adduced by some of the plaintiffs’ witnesses and noted that they the plaintiffs have admitted a number of important facts which in my view, water downs their claims for specific damages. For instance, during cross examination PW1 had this to say, “The amount of Tshs. 50,000,000/= was raised after destruction of the environment and does not include the destruction of bees... I can explain why I claimed that amount; the land which contain 800 kilometres is in 40 dispute. I claimed Tshs. 50,000,000/= because they destructed my trees in my land area.” However, when cross examined by the defendant’s counsel, PW5 said, “The affected area is almost 20 hectors, the claimant should claim compensation ofthe area affected. The land valuer was not consulted, but on the side ofthe bees I conducted valuation.” The foregoing entails that what the first plaintiff did, was to estimate the amount of loss incurred by him due to defendant’s trespass and extraction of stones in the disputed land, but he never consulted the land valuer to make valuation of the loss incurred do to such acts. Worse still, no documentary evidence was tendered either by him or his co­ plaintiff, in order to prove the claimed special damages. Besides, when cross examined by defendant’s counsel, PW3 said, I claimed special damages for loss of income due to the defendant's use of the land and disturbed the project to the tune of Tshs. 1,005,031,884/=, at paragraph 10 of the plaint it is shown that my claim is to the tune of Tshs. 1,055,031,884.1/=. The witness statement supports the total loss incurred, the loss which some of it was not in the plaint. There is no paragraph in the plaint which mentions the total number of beehives. No valuation was done because we did not harvest honey, so we cannot make valuation” 41 Again, during cross examination, PW5 said that, “I cannot mention the total number of bees in the project, but I can mention the number of bee colonies which contained 620 colonies”. The above pieces of evidence from PW3 and PW5 indicates clearly that the second plaintiff failed to prove the figures of special damages claimed by him at paragraph 10 of his plaint. Also, the number of bee colonies which would have been crucial in quantifying the number and volume of products harvested, is nowhere pleaded in the plaintiffs’ plaint meaning that the special damages by the second plaintiff was not specifically pleaded hence, contrary to the principles regarding special damages, as described above. It is therefore my settled view that the first and second plaintiffs have failed to prove their claims regarding special damages and the court cannot award such damages in the absence of sufficient evidence to prove them. It is due to the foregoing reasons that I thus, dismiss the plaintiffs’ prayers in respect of special damages. As for general damages, much has been said by the court in the course of citing authorities regarding special damages. This kind of damages can, however, be asked by a mere statement or a prayer of claim which is quite different to special damages, as elaborated above. In the case of 42 Tanzania Saruji Corporation vs African Marble Company Limited [2004] T.L.R. 155 (CAT) it was stated that: “General damages are damages that the law will presume to be direct, natural or probable consequences of the act or omission complained of.” And, in the case of Alfred Fundi vs Geled Mango and two Others, Civil Appeal No. 49 of 2017 (unreported), the Court of Appeal stated that: "While a Judge has discretion in awarding general damages, he is enjoined by /aw to assign reasons in awarding such damages. ”' In the case at hand, among the reliefs sought by the first and second plaintiffs is the general damages to the tune of Tshs. 100,000,000/= (One hundred Million only), though without specifying who deserves what, as opposed to their prayer in relation to specific damages. It is however, their argument that the reason which have prompted them to come up with such claim is due to the sufferings and disturbances caused by the defendant following her act of trespassing into the disputed land and extracting stones therein. This is shown at paragraph (c), page 3 of their joint plaint. 43 On the other hand, the defendant has disputed to have destroyed the disputed land or disturbed the second plaintiff’s beekeeping project. However, I have not been able to agree with such reservation by the defendant because her own witnesses who are DW1, DW2 and DW3, have admitted to have entered into the first plaintiff’s land and extract stones therein by using an excavator. In the circumstance, the defendant cannot escape the allegations that she caused destruction on the disputed land and disturbance to the second plaintiff’s beekeeping project. Also, under normal circumstances, it is obvious that by using an extractor device to extract stones in the disputed land, the defendant damaged the first plaintiff’s land by cutting trees and removing the topsoil before starting to extract stones in that land. It is equally obvious that by extracting stones in the disputed area whilst using an excavator, the defendant caused an environmental pollution due to dust eruption and noises, in the cause of extracting stones and loading them on the lorry for them to be taken to the TANROADS’ Laboratory in order to test whether those stones were suitable to be used in the road construction project. In the circumstance, I find that the first and second plaintiffs’ complaints that they suffered some loss 44 due to such defendant’s unlawful acts, have merits, thus making both of them to be entitled for general damages, though not amounting to the figure specified in their joint plaint. I say so because, first, it is plain from the court records that the first plaintiff has failed to prove that the size of the affected area is 8000 hectors and secondly, his co-plaintiff has failed to prove that in his beekeeping project there were 620 beehives and that fact was not pleaded by the second plaintiff in the plaint. Another reason which I find to be very crucial to add before deciding the amount of general damages each of the two plaintiffs is entitled to be awarded, is that as between them, it is the second plaintiff who deserves more than the first. This is obvious because it is the second plaintiff who has been running a beekeeping project near the disputed land which is likely to make him earn four bee products to wit; honey, beeswax, bee venom and propolis, as opposed to the first plaintiff whose land upon being visited by the court on 13.03.2024 and observed to have been damaged due to defendant’s trespass, was measured with the help of a tape measure and found to contain only 2.3 acres of the affected area; the remaining part of the disputed land was normal with some few natural grown trees 45 and other species of plants, but no planted trees, crops or buildings which tells that the said land was not much developed to the extent of making the first plaintiff to earn more money from that land than the second. Therefore, based on the reasons which I have endeavoured to assign above, I enter judgment and decree against the defendant and order that: i. The defendant should cover all holes in the affected disputed land by soil, at her own costs. ii. The defendant should pay the first plaintiff Tshs. 10,000,000/= (Ten Million Only), and the second plaintiff Tshs. 15,000,000/= (Fifteen Million Only), as general damages. iii. An eviction order of the defendant from the disputed land. iv. Permanent injunction against the defendant and all her agents from further using the disputed land after clearing it, as per item (i) above. v. The defendant should pay interest at the court rate of 8% on the decretal sums in item (ii) above, from the date of this judgment to the date of full payment. vi. Costs of this suit to be borne by the defendant. 46 It is so ordered. 12.08.2924 DATED at SUMBAWANGA this 12th August, 2024. 12.08.2924 47