20201201 TZHC Dar es Salaam

t

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CIVIL CASE No. 40 OF 2017 MOHAMED ALLY■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ a ■■■■■■■■■■■■■■■■■■■■■■■■■ ■■ PLAINTlff Versus GAIRO DISTRICT COMMISSIONER......................... 1 st RESPONDENT --- --- __ _A.TTQ~_l::Y_G_EN_ERAL._.........•·······••-•·••·•·•-••-•••·•-····.. ········-·········-2"d RESPON·DENl" ~ · - - -·-·

JUDGMENT 18th August, 31 st August, 3rd September, 6th October, 17th November, 24th November, 1st December, 2020. J. A. DE-MELLO, J; The claim by the Plaintiff against the Defendants, is for Payment of Tanzanian shillings 12,000,000/ = being the costs for o·ne hundred and twenty (120) timber wood, allegedly . illegally confiscated ! by the 1 st Defendant notwithstanding, general damages to the tune of Tanzanian shillings 30,000,000/=. Facts from evidence had it that, in March, 2016, the Uponela Village decided to sale its timber to the Plaintiff, with a view of raising money for school construction. On the 13th May, 2016 the two sealed an agreement following unanimous resolution passed by the village authority and, ~II in writing. Permit to transfer the said timber was granted by the same village executive officer on the 28th July, 2016 allowing the Plaintiff to transport the same from the village to his business premise. As this ,. was the case, the transit timber was sei~ the Forest officials claiming to 1 t be illegally harvested. On the 24th August, 2016 the Plaintiff wrote to the Forest Manager, complaining against confiscation but, came to learn later it was within the District Commissioner's authority. Several other efforts to include the Gairo District Commissioner and Regional Commissioner, Morogoro to intervene but, to no avail. The Plaintiff then sought his

lawyers intervention who on the 25th October, 2016 served the Gairo District Commissionera demand notice for return of his timber, following procedural law for suing a government entity taken into consideration. On the 21 st November, 2019 the matter was heard in full, with the Plaintiff _Jir1in_g UQ_ c::m~_ (l)_witoess_th_e Plaiotiff _himself, wbereas-the-Defendant had two - - (2), in care of Counsel Benedict Pius, and, Grace Lupondo State Attorney, respectively. Three issues were framed as hereunder; a) Whether the first Defendant confiscated of the Plaintiff's Silipa wood? b) Whether the confiscation of the Plaintiff's Silipa wood by the first Defendant was lawful and, justified? c) To what Relief(s) the Parties are entitled to? To back up the evidence, the following exhibits were tendered and, admitted to form part of the oral as well as final closing submissions; 1. Exhibit PI - Minutes of Uponela Village Executive Council 2. Exhibit P2 - Letter for Transport Permit of pieces of wood from Uponela Village.

3. Exhibit P3 -_ Letter written to F ~Agent of demanding his pieces 2 of wood to be returned.

4. Exhibit P4 - Reply from Forest Agent demanding his office pieces of wood to be returned. S. Exhibit PS - It is a complaint letter written to the Region Commissioner on his 120 pieces of wood that has been taken by Gairo District Commissioner.

6. Exhibit P6 - Demand Letter written to the District Commissioner on intention to sue regarding of illegal confiscation of 120 pieces of wood. The Defence had only one exhibit as hereunder; Exhibit D1 - Written Letter from Agents of Forest to Gairo District Commissioner. The only and, one Plaintiff's witness was Mohamed Ali Mohamed PW1, the victim and, owner of the confiscated timber, testified that, the hundred and twenty (120) piece of timber were lawfully bought from Village Executive Officer together with his eighteen other pieces of wood of his o_yvn. He tendered all the exhibits in quest of proving his case namely; exhibit Pl, P2 to perfect the legality from sellers to his lawful ownership. The rest of exhibits from P3, P4, & PS alludes to the alleged illegal confiscation by the local and, central government authorities. Lastly is and, precisely as a result of no response and, alleged sale of the timber, which lead the engagement of legal recourse by issuing a demand notice to the District Commissioner. Exhibit P4, the letter from Gairo Forest Manager in the last paragraph says; "Silipa 120 tulizo zikamata e n ~ msingi tarehe 24/7/2016 3 zilichukuliwa na mkuu wa polisi wilaya ya Gairo tarehe 10/8/2016 ambaye aliagizwa na mkuu wa Wilaya ya Gairo. However, while that was the position, Pl and P2 were exhibits tendered by the Plaintiff, ones which he believed and,

satisfactory to transport timber wood for commercial purposes. Elizaberth Njau DWI, disputed the Plaintiff not to have the requisite licenses for transportation of timber. She is the Forest Officer from TFS Gairo, ones who on the 24th July,2016 confiscated the consignment of timber sent the same to the Police, before confining them at office premise, anticipating the surfacing of the owner. It is her further evidence that around the 28th July, 2016 the Plaintiff emerged, claiming to own the consignment basing on minutes as well as permit to transport from Uponela Village Executive Council. It was her further evidence that, the Plaintiff had neither business nor transport licenses. By the time the Plaintiff returned with the licences and, horribly out of time, the lapse of thirty (30) days, rendered the timber subject to valuation to the tune of TShs. 4,786,000/ = prior to confiscation. DW2 Salome Rwiza a legal officer for Gairo Tanzania Forest Service cited section 94 (4) of Forest Act No. 14 of 2002, fortify the allegation that, confiscation was lawful following lapse of thirty (30) days without produce the permit and business license, by the Plaintiff. Section 94 ( 4) of Forest Act No. 14 of 2002. "Where the owner or a person in control of a seized property fails to appear or absconds and abandons his ~~erty for a period of thirty days, the Director or an authorized ~ e r may

dispose of such 4 property sale it and the money collected there from shall be used to cover any costs incurred and the remaining amount, if any, shall be deposited into the fund". Evidence by the Plaintiff however, has it that, from seizure on 24th July, 2016 to 10th August, 2016, when the 1st Defendant confiscated, makes it a total of sixteen (16) less the thirty (30) days that, the law requires and, provides. It is the cardinal principle of law that, all civil suit are founded on Balance of Probability, ground, as stipulated by sections 110 (1) (2) reading as follows; "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 those facts exists." It is the Defendants further evidence that, they prepared a report on the 5th May,2017, long after confiscation ttiat was done on the 10th August, 2016, while this suit was lodged on the 27th February, 2017. Citing the case of Hemed Said vs. Mohamed Mbililu [1984] TLR 113 for what balance of probability demands, the following had to be fulfilled; i. "According to the law that both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one must win. ii. In measuring the weight of evidence it is not the number of witness that counts most but the quality of evidence." Much as the last order came fro~- ~~fest

Service Agency of Gairo District and not the first Defendant, vnding for business license and export 5 certificate to be submitted within thirty (30) days as evidenced from exhibit P3, P4 and, D1. Section 94 ( 4) Any articles or forest produce seized under section 88 or 90 shall be brought to the nearest police station or if it is not feasible to deliver it to a police station it shall be delivered into a custody of a nearest reserve manager and a report of seizure shall be made forthwith to the senior police officer having jurisdiction within the area". According to section 88 (1) of the Forest Act provides; " ... Any person who without lawful authority or excuse, the burden of proof shall be upon him, takes receives or founds in possession of forest produce with respect to which respect to which an offence against this Act is committed, unless he can account for such possession or can show that he came by such produce innocently shall be guilt of an offence and upon conviction shall be liable to a fine of not exceeding one million shillings or to imprisonment for a period not exceeding two years or to both such a fine and imprisonment" The seized forest produce referred to, can be liable for disposing at the liberty of the defendants under section 94 (4); "where the owner or a person in control of the seized property fails to appeared or absconds and absconds his property for

a period of thirty days the Director or an authorized officer may dispose such property sale it and the money collated t ; e efrom shall be used to cover any costs incurred and the remainin ount, if any, shall be . ~ 6 • deposited into the fund". Section 2 of the Forest Act (supra) further defines forest products to mean; "Anything which is produced by or from trees or grows in a forest or is naturally found in a forest and includes bam". In absence of forest licences, let alone business license, and within his reach at that point of interrogation, the Plaintiff is on a losing end. He is even constrained to claim for damages, both specific as well as general as shared - - - -- - - -by-the Defendants-in -the ease-ofBamprass-Star.Services Stat_ic:,ra _v§._ ~r~- Fatuma Mwale [2002] TLR 390 "It is the trite law that specific damages being exceptional in their character and which may consist of off pocket expenses and the loss or earning incurred down to the date of the trial not only be claimed specifically but also strictly proved". In a similar position, the case of Geita Gold Mine Ltd & Another vs. Ignas, Civil Appeal No. 227 of 2017, CA Mwanza that; "As rightly submitted by the counsel for the Appellant, as the matter of law, special damages must be specifically pleaded and strictly proved" The known legal principle in equity that "he who comes to equity must come with clean

hands" which the Plaintiff does not have, to justify compensation by way of damages. Similarly and, following the above, this Court is ined or rather tied to 7 • even consider awarding of general damages. Lord Macnaghten clearly stated in the case of Storm vs. Hutchison 1905 A.C that; "General damages are such as, the law will presume to be the direct natural or probable consequence of the act complained of". In absence of proof of any wrongful act against the Plaintiff, the Court is constrained to award damages either way as was held in the case of Patel vs. Samaj and Another (1944) E.A, C.A I. Exhibit D1 which the Defendant tendered and admitted by Court stated on -the--last paragraph- that; - _ _ __ _ ___ _ "kutokana na msukumo wa Waziri Mkuu wa kutengeneza madawati silipa hizo zilichukuliwa zikaenda kutengeneza madawati ambayo yalipelekwa mashuleni". This concludes the lawful confiscation that the authorities took for a public good cause that of making desk for our children at schools. Sad but, little did the ignorant litigant, the Plaintiff knew that, forestry products are fragile and, highly sensitive, which requires proper legal procedures and licenses not only for buying and, sale but even harvest. The village on the other, ought to be conversant to be able to guide the buyer legally what that, all demanded. I however and, considering the lay nature of the Plaintiff, lay J.A.~LO. JUDGE. 1st December, 2020 8